Lords Sitting of 27 February 1997

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Chichester.): The LORD CHANCELLOR on the Woolsack.

Guardsmen Wright and Fisher: Sentences
Lord Westbury Lord Westbury asked Her Majesty's Government:
When they intend to consider further the case for releasing Guardsman M. Wright and Guardsman J. Fisher, both of whom are at present in prison in Northern Ireland.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield): My Lords, the terms of Mr. Justice Girvan's recent judgment require the cases of Guardsmen Fisher and Wright to be looked at afresh and for new information to be obtained and taken into account. The necessary information for the review is being gathered. Once it is received the cases will be considered as expeditiously as possible consistent with the terms of the judgment.
Lord Westbury: My Lords, I thank my noble friend for that Answer. However, is she aware that those two soldiers have now been in prison for four-and-a-half years?
Baroness Denton of Wakefield: My Lords, I can assure my noble friend that I am aware of that. I well understand the sentiments that induced him to table the Question; but it would be wrong of me to comment on the detail of the cases before the fresh review has been completed.
Lord Bramall: My Lords, does not the noble Baroness and her department have considerable sympathy with the view that if a soldier goes on duty to aid the civil power in all good faith, with no malice aforethought, but commits a split-second error of judgment with tragic consequences—even if the act of pointing a rifle under intense pressure legally constitutes intent—at the end of the day he should serve a sentence more commensurate with unlawful killing or manslaughter than the ghastly crime of murder? Is it not clear that such a sentence has already been served by Guardsmen Fisher and Wright?
Baroness Denton of Wakefield: My Lords, the guardsmen were tried by an independent prosecuting authority. The facts of the case were carefully and independently considered and then adjudicated upon by the court. The court held that the soldiers had no lawful justification for firing at the deceased. In those circumstances there is no alternative but to impose a
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mandatory sentence. The law does not permit a court to impose a discretionary sentence for someone convicted of murder.
Lord Williams of Mostyn: My Lords, are not the facts these? The deceased was aged 18 and unarmed; the two soldiers were convicted in February 1995; the application for judicial review was upheld as recently as last December. Is not the proper course as the Minister indicated; namely, that the Life Sentence Review Board should be asked to do its work as the lawfully constituted authority?
Baroness Denton of Wakefield: My Lords, I agree with the noble Lord, Lord Williams, that it is important that the law runs its course. The review will be completed as expeditiously as possible.
Lord Rees: My Lords, does my noble friend recognise that two soldiers previously convicted in similar circumstances were released within four years? Will she recognise also—I know she must feel slightly inhibited today—that the country will require clear points of distinction if the guardsmen are not given an expeditious hearing? As my noble friend said, they have already served four-and-a-half years in confinement.
Baroness Denton of Wakefield: My Lords, every case is reviewed individually and there will be an outcome to the review as soon as possible.
Lord Ackner: My Lords, does not this case provide yet another example of how undesirable the mandatory life sentence is? Does it not indicate that it is high time we made the life sentence a discretionary one so that it might be tailored to the gravity of a specific offence?
Baroness Denton of Wakefield: My Lords, I am sure that the noble and learned Lord, Lord Ackner, will be as aware as I am—if not more—that as a result of a House of Lords judgment in the case of Private Clegg the Home Secretary announced a review of the law of murder. It was concluded that the case against change outweighed that in favour.
Lord Dean of Beswick: My Lords, is not the Minister aware that, following the early stages of the police initiative, some people in southern and Northern Ireland who have committed cold blooded, premeditated murder against the security forces and in many cases of civilians are now walking free? Why has not the same policy been extended to the two guardsmen who nobody can prove acted with any malice?
Baroness Denton of Wakefield: My Lords, the Government are well aware that finding a peaceful solution to the situation in Northern Ireland is the key to a resolution of all these issues. But that should not he outside the law.
The Duke of Norfolk: My Lords, can the noble Baroness be more specific in relation to the two guardsmen? The fact is that Privates Thain and Clegg were released after three years' imprisonment; Guardsmen Fisher and Wright, whose cases are similar, have been confined for more than four years. We all know the awkwardness of pursuing soldiering duties. The soldiers should surely be given the same treatment as the first two privates.
Baroness Denton of Wakefield: My Lords, we aim to ensure that the law and its protection is extended to all citizens. Again, I stress that it is wrong to comment on the detail before the review is completed. The law will run its course.
Lord Burnham: My Lords, when Private Clegg was released in July 1995 my right honourable friend the Prime Minister in another place said that it was a judicial matter and must remain so. Can my noble friend give the House assurances that the same will apply in these two instances?
Baroness Denton of Wakefield: My Lords, I am pleased to reassure my noble friend and the House that the Government accept the rule of law and that judicial matters are judicial matters.
Lord Campbell of Alloway: My Lords, in view of what the noble and gallant Lord, Lord Bramall, said, and truly said, about the state of the law and in view of what the noble and learned Lord, Lord Lloyd, said, and truly said, when will something be done about the state of the law?
Baroness Denton of Wakefield: My Lords, I bear many responsibilities in my post but that I would willingly delegate to others.
Noble Lords: Next Question!
Lord Trefgarne: My Lords, perhaps I may—
The Lord Privy Seal (Viscount Cranborne): My Lords, I am in the hands of the House. Perhaps we ought to move on.

Mental Health Services
3.10 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
In view of the time needed to implement any of the options for changes to the mental health services as outlined in the Green Paper, what measures they
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intend in response to the concerns expressed in the reports by Sir David Goldberg and the National Association of Health Authorities and Trusts, published in January.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the report's findings do not come as a surprise, as many of the concerns raised had already been addressed through policy initiatives such as the publication of Spectrum of Care which advised health authorities on a range of services needed to provide a comprehensive mental health service.
Baroness Turner of Camden: My Lords, I thank the Minister for that response. But is she not aware that situation is causing grave concern to a number of organisations specifically involved in this area, notably the National Schizophrenia Fellowship, to which I am indebted for the briefing? It has informed me that, despite being a priority service, funding is inadequate and staff shortages and recruitment problems are rife in the service and that steps could be taken without waiting for the results of the Green Paper, which I gather we are expecting in due course.
Baroness Cumberlege: My Lords, I appreciate the concern. London tends to attract mentally ill people in larger numbers. We have specifically ensured that London has an increase in funding to deal with this problem. Overall in the current year we have allocated an additional £95 million to the whole of the country. Some of that will go to London. We have reorganised the allocation system so that it is weighted towards London. We have also seen an increase in the number of community psychiatric nurses, psychiatrists and clinical psychologists.
Baroness Jay of Paddington: My Lords, does the Minister accept that a bad situation in London has been made worse by the closure of 2,000 acute sector beds since 1992? I must declare an interest as a member of the London commission which published one of the reports referred to in the Question. Surely the Department of Health could take short-term measures, partly in allowing there to be a moratorium on the closure of more acute beds and also on building on some of the good practice which is referred to in the NAHAT report, particularly about the formation of community mental health teams.
Baroness Cumberlege: My Lords, I appreciate the points the noble Baroness has made. We are seeing an increase in the number of beds staffed by nurses on a 24-hour basis. Two hundred have been introduced in the current year and there is more funding for next year. The noble Baroness is right. We need more mental health teams. Five new ones have been established in London in the past year or so. The position is well under control. When the Green Paper is put into action, I am sure that will also improve the services.
Lord Thurlow: My Lords, is the noble Baroness prepared to consider the proposal of the National Association of Health Authorities and Trusts that the mental health component of the allocation of funds to local authorities should be ring-fenced to stop them being drained away into other uses?
Baroness Cumberlege: My Lords, that is the position with the homeless mentally ill initiative, which goes to local authorities. Indeed, £23 million has gone into London. That has supported the outreach teams. Ten hostels and 180 units of permanent move-on accommodation have also been developed.

Israel: Oslo Agreements
3.14 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
What are their views on the implementation of the Oslo Agreements, in particular on access to and freedom of movement between the West Bank, Gaza, East Jerusalem and Israel.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we continue to press for the full implementation of all existing agreements. I hope that the parties will make swift and concrete progress in tackling outstanding issues from the interim agreement, including safe passage between Gaza and the West Bank for Palestinian workers and goods.
Lord Hylton: My Lords, I thank the noble Baroness for her reply and I welcome the visit to London of President Weizman. But what are Her Majesty's Government doing to prevent the fragmentation of the West Bank by Israeli roadblocks, the separation and division of the West Bank, East Jerusalem and Gaza and the hemming in of East Jerusalem by a ring of illegal settlements, of which Har Homa is the latest?
Baroness Chalker of Wallasey: My Lords, we have made representations over many months on each and all of these points. At our suggestion the European Union special envoy, Ambassador Moratinos, is carrying out with the Israeli authorities and the Palestinians a rapid study of the problems facing the Palestinians, particularly with regard to their economy. It is urgent that this is done. A constructive dialogue is going on on how to lift the barriers while safeguarding Israel's need for security. These matters have also been mentioned in discussions with President Weizman during what has been a happy and successful State visit this week to this country.
Baroness Blackstone: My Lords, following the totally unacceptable decision by the Israeli Government yesterday to extend Jewish settlements in East Jerusalem, thereby jeopardising the peace process, can the Minister tell the House what use the Government and our European Union partners now intend to make
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of the association agreement, which went through this House last week, to put pressure on the Israeli Government?
Baroness Chalker of Wallasey: My Lords, the fact that we now have an association agreement is a very good further vehicle besides the work that Ambassador Moratinos has started. The noble Baroness may have noticed that the Foreign Secretary made a Statement about Har Homa yesterday in which we made the Government's view absolutely clear—that all settlement building in the occupied territories remains against international law. That is particularly true in the sensitive case of Jerusalem. I agree with the noble Baroness. It risks damaging the peace process by pre-empting the final stages of negotiations.
But it is not enough to criticise. We have to use every avenue at our disposal to persuade the Israeli Government not to proceed with these plans. They will only detract from the positive atmosphere that was established by the Hebron agreement and the Israeli Government will, if they go ahead with these plans, undermine the establishment of that vital trust which will be necessary for the further negotiations with the Palestinians to be concluded successfully. We hope that the Israeli authorities will take account of the views, genuinely meant, of their friends and suspend this decision.
Lord Redesdale: My Lords, is the Minister aware of any difficulties in getting ODA humanitarian assistance into Gaza, as has happened in the past?
Baroness Chalker of Wallasey: My Lords, we had problems at the end of last year and at the beginning of this year. However, I am glad to say that, following a meeting I had with senior Israeli officials and with UNRWA on my visit to Israel and to the Palestinian Authority in January this year, we now have a system of taking up with the Israeli authorities any of the impediments to the passage of goods or staff seeking to help bring about peace, which is so urgently needed in Israel and in the Palestinian Authority.
Lord Hylton: My Lords, the noble Baroness mentioned requests made to the Government of Israel and she herself has had conversations with them. Can she tell the House whether any assurances have been obtained following those requests?
Baroness Chalker of Wallasey: My Lords, it is difficult to turn round quickly decisions taken by the Government of another sovereign country. What I see is a change in the attitude of the authorities on some of the issues which we have raised with them. By no means have we solved all the problems we encounter—and the Palestinians certainly encounter major problems—but there is now a willingness and a method of working which frankly did not exist before the Foreign Secretary made his visit to Israel and to the Palestinian Authority in November last year.

Criminal Procedure and Investigations Act 1996, Part I
3.19 p.m.
Baroness Mallalieu Baroness Mallalieu asked Her Majesty's Government:
Whether, in the light of the Carl Bridgewater murder appeal, they will review Part I of the Criminal Procedure and Investigations Act 1996, limiting disclosure of material by prosecution and defence, before it comes into effect.
The Minister of State, Home Office (Baroness Blatch): No, my Lords. We consider that the provisions of Part I of the Act are sufficient to ensure that material which points away from the accused is disclosed to him. In particular, although I cannot comment on the substance of the appeal in the Carl Bridgewater case, we consider that the material relating to the disputed confession, together with the material relating to the fingerprint evidence, would have been required to have been disclosed under Part I of the Act.
Baroness Mallalieu: My Lords, I thank the Minister for that reply. Can she confirm the report in today's press that her colleague in another place, the Home Secretary, has agreed to alter the requirement under the Act that material should only be retained for a period of three years and that it should now be retained for the full period of somebody's sentence? Perhaps I may press the Minister a little further. In view of serious concerns, both public and within the legal profession, that once the provisions of the Act are implemented we shall be taking a step back to the bad old days when the prosecution alone determined what material the defence would see, will she consider at the very least not bringing that part of the Act into force until after the hearing of the Carl Bridgewater appeal and any judgment that the court may give in it, so that any lessons from what seems to be yet another serious miscarriage of justice can at least be taken into account before we change the law and put the clock back?
Baroness Blatch: My Lords, perhaps I may take the second point first. There is no question of returning to what the noble Baroness referred to as "the bad old days". There is also no question that the prosecutor alone is going to be the determinant of what shall be disclosed. Perhaps I may say to the noble Baroness that Section 3 of Part I of the Act provides that the prosecutor must disclose to the accused any prosecution material which the prosecutor thinks might undermine the prosecution case and at the same time must give the accused a schedule listing all prosecution material which is not sensitive contained within Section 4. But in response—and this is the important point—the accused must disclose the general nature of the case, the matters on which he takes issue with the prosecution and the reasons for that defence. The defence disclosure is mandatory in the Crown Court, but voluntary, of course, in the magistrates' court. That is covered by Sections 5 and 6 of the Act.
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In response to a defence disclosure, the prosecutor must disclose any additional prosecution material which might reasonably assist the defence that has been disclosed. That is Section 7. Material which does not undermine the prosecution case or assist the defence as disclosed in the defence statement does not need to be disclosed. Between the schedule and what must be disclosed, everything is made available to the defence.
As regards the first point that the noble Baroness made, she is right. In fact, a Parliamentary Question has been put down to the effect that my right honourable friend is minded to change the code of practice and will bring it to Parliament before too long. The police will be required to retain material at least until the end of the trial and then, in the event of a conviction, either until the convicted person is released from custody or discharged from hospital (if the court imposes a custodial sentence or a hospital order) or until six months from the date of conviction if the court imposes a non-custodial sentence.
Where a convicted person is given a short custodial sentence and would be released within six months of conviction, material would still have to be retained for at least six months. If an appeal is in progress at the end of one of these periods or an application is being considered by the Criminal Cases Review Commission, the period will be extended until the appeal is concluded or the commission makes a decision on the application.
It is worth recording for the purposes of this Question that all the material was kept by the police in this particular case and it will be material to the appeal which is yet to be heard. In some of the more high profile and celebrated cases of recent times, again the police kept all the material and evidence to be available to the appeal court.

Delay in the Criminal Justice System: Review
3.24 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I wish to make a Statement about improving the speed of justice in England and Wales. The Home Secretary is making a similar Statement in another place.
Confidence in any criminal justice system relies on its ability to convict the guilty and acquit the innocent and to do so quickly. Over the past three years the Government have taken action to even up the scales of justice. At the same time, we have taken action to speed up our criminal justice process. And progress has been made. In the Crown Court waiting lists fell by one-fifth last year, and the number of cases outstanding has been reduced by a quarter. At magistrates' courts the proportion of summary only cases completed at first appearance reached 76 per cent. last year—10 per cent. more than 1995.
But more needs to be done. Although the number of indictable cases coming before the magistrates' courts fell by 11 per cent. between 1985 and 1995, the average number of days taken to complete a case

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from the date of offence increased by 36 per cent. from 98 to 132 days and the number of adjournments increased by 44 per cent. Entirely proper safeguards for defendants, such as advance information and the reforms introduced in the Police and Criminal Evidence Act, have made the process more complex. But on top of this an adjournment culture has developed.
That is why, last autumn, my right honourable friends the Home Secretary, the Attorney-General and I decided to set up a fundamental review of the speed of justice. The review has now been concluded and today we are publishing its report and placing copies in the Library. The Government see merit in it and propose to invite interested parties to express their views. They will reach decisions in due course having considered those views. The report makes 33 recommendations. One of them is now largely superfluous, the four senior designated judges and I having yesterday approved—subject to certain restrictions—the Law Society application for rights of audience for employed solicitors in the higher courts. This meets the review's proposal that employed solicitors in the CPS should be granted rights of audience for plea and directions hearings at the Crown Court.
The report's remaining recommendations fall into five main areas. The first deals with bringing alleged offenders to court. Considerable improvements have been made in recent years in the relationship between the police and the Crown Prosecution Service. Abbreviated files for guilty pleas dramatically reduce police paperwork. Joint performance management and CPS lawyer surgeries in police stations are delivering improvements. But the business of getting cases ready for court still falls into two distinct halves: police preparation of the file and the review of the file by the Crown Prosecution Service. The report recommends that these two halves should be brought together. Some CPS staff should be brought into police stations on a permanent basis to work with the police in what would visibly be a joint effort in bringing offenders to justice. The independence of the CPS would still be preserved, but independence does not require isolation.
The decision to prosecute would still be subject to two tests: whether the evidence was sufficient, and whether prosecution was in the public interest. But the report recommends a change to the CPS public interest test, which currently allows a case to be discontinued if the alleged offence is minor or the likely penalty trivial. This change would assist chief constables to target particular crimes, often of an anti-social nature, which in themselves would not necessarily be regarded as serious but which can make life a misery for innocent people, creating conditions which encourage more serious crime to flourish.
One significant cause of delay at present is that the time taken by defendants to obtain legal aid means that cases cannot be brought to court immediately after charge. The report recommends that all those defendants who intend pleading guilty should obtain legal advice and representation from the duty solicitor at court. This would be free of charge. It would also be extremely prompt, being given on the morning of the day on which
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the court appearance takes place. This would mean that defendants who pleaded guilty would be dealt with the day after they were charged. The effect would be dramatic: for more than half of all defendants charged the proceedings could now be completed the next day compared with under 3 per cent. now.
Where a defendant pleads not guilty, an application for legal aid would be made in the normal way, but it would have to be made promptly. The report recommends that courts should insist that defendants who fail to take adequate steps to secure representation or legal aid should have to use the duty solicitor in court that day unless they decide not to be represented.
Next, the report recommends that those pleading not guilty should also appear in court the day after charge at an early administrative hearing, to be conducted by the Clerk to the Justices. At this hearing the defendant would be told what the court needs in order to consider eligibility for legal aid and also about the nature of the forthcoming proceedings. These hearings have been shown substantially to reduce adjournments.
The report also recommends that clerks to the justices should hold pre-trial reviews and be given additional administrative powers very similar to those they already have in family proceedings. Pre-trial reviews would focus issues of dispute between the parties, so that cases are fully prepared for trial before they are put to magistrates. The principle should be that a case should not go before magistrates until it is ready to proceed and should then proceed without unnecessary adjournment. No one reading the report could fail to be impressed by the evidence from one pre-trial review, completed in one morning and observed by the reviewer, which obviated the need for no fewer than 15 police officers to attend future hearings. But I want to stress that the intention behind extending clerks' powers would be to reinforce the lay magistracy which has been described, quite rightly, as a cornerstone of our system of justice. There has been some speculation in the press about stripping magistrates of some of their current powers. The reviewer makes no such recommendation and had he done so, we would have rejected it.
The next area concerns the Youth Court. The proposals I have already described for joint working between the police and the CPS and for legal aid reform would in themselves bring offenders to justice at the Youth Court much more quickly. In addition, the report makes recommendations specific to the Youth Court. The most important of these is that 17 year-olds should be returned to the jurisdiction of the adult court leaving the Youth Court to deal more promptly with offenders of school-leaving age and below. It was the near unanimous verdict of all those interviewed by the reviewer that 17 year-old offenders are too sophisticated for the Youth Court where they account for about a third of all cases. They tend to be more experienced offenders and are often disruptive and unco-operative. The second recommendation is that the police should make the decision whether to caution or to charge an offender immediately, rather than (as frequently happens now) refer the case for advice to a multi-agency panel. If there is any doubt, the case should go to the Youth Court. If the court decides that a caution might be appropriate

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it should be able to give one and, where it sees fit, attach conditions to the caution, such as compensation or reparation to the victim. Young offenders would then be in court within days of being caught, rather than, as is frequently the case now, many weeks later.
Finally, the review makes recommendations about cases which go to the Crown Court. About 20 per cent. of all those tried in the Crown Court—about 24,000 defendants each year—insist on being tried there despite magistrates having previously decided the case was more suitable for them to deal with. About two-thirds of those defendants then plead guilty at the Crown Court. About three-quarters are found guilty. The reviewer recommends that it should be for magistrates to take the decision as to which cases triable either in magistrates' courts or the Crown Court, such as theft, handling stolen goods or burglary, need to be committed to the higher court. Those seeking Crown Court trial without good reason, perhaps simply to delay proceedings, would no longer be able to overrule the magistrates' view that they should try the case. On the other hand, defendants with a good reason for jury trial—because of the complexity of the case, because they were defending an unblemished reputation or because of the potential effect of a conviction on the individual—would be able to present those reasons to magistrates who would be free to commit the case. This is not a new idea. It builds on a very similar recommendation made in 1993 by the Royal Commission on Criminal Justice. It recognised the need for a more rational basis for distributing cases between the courts; and it noted that in Scotland the decision on whether a defendant should be entitled to jury trial is made by the prosecutor.
I recognise that that recommendation is especially sensitive since any proposal to restrict the availability of jury trial is bound to arouse strong feelings. Jury trial is a central feature of our system of justice and one to which the Government are entirely committed. We would not wish to restrict it without very careful thought. On the other hand, the report's recommendation offers substantial advantages. It would divert from the Crown Court cases—often of a petty nature—which do not need to be there. It would also make it easier to pursue another of the report's recommendations, also favoured by the Royal Commission, under which the most serious offences, those triable only at the Crown Court, could be handled more effectively and more speedily, by starting there from the outset rather than spending about half their life in magistrates' courts awaiting committal. We will want to consider both these recommendations particularly carefully in the light of views expressed. If other avenues of approach are suggested, we will of course consider them. There may, for example, need to be a right of appeal against the magistrates' decision not to allow a case to go to the Crown Court. And of course anyone convicted by magistrates would, as now, have a right of appeal against conviction or sentence to a judge (but not a jury) at the Crown Court.
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These are important proposals. More work needs to be done on the extent of the financial implications and the Government want to listen to the views of those who work in the criminal justice system on both the principles and the practicality of the recommendations before making decisions. But I am confident that, taken together, they could dramatically speed up the prosecution process, bringing the guilty to justice and acquitting the innocent more quickly and at lower cost.
Let me remind your Lordships what these proposals would achieve if implemented. First, all defendants would appear in court the day after they were charged. Fewer than one in five do so now. Secondly, a pilot study has indicated that at least 50 per cent. of those defendants, those who indicate they would plead guilty, would be convicted the day after they were charged. That happens in only 3 per cent. of cases now. Thirdly, the time taken to bring a young offender to court from the date of his offence, currently 10 weeks, would be no more than a few days. This would save the valuable time of all those engaged in the criminal justice process, including witnesses and victims. It would help to ensure that the energies of police officers could be spent protecting the public, rather than going backwards and forwards to magistrates' courts.
Justice delayed is justice denied. These proposals have the potential, by drastically reducing delay and restoring the direct and speedy link between detection and conviction, to afford justice more speedily and in much greater measure to victims, to witnesses and to the general public alike.
My Lords, that concludes the Statement.
3.35 p.m.
Lord McIntosh of Haringey: My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for that Statement. As he said, these are important proposals—well almost. It is clearly an important review, covering areas which have been a matter of public and political concern over a number of years.
What is not clear is the status of the Lord Chancellor's Statement. The noble and learned Lord says—I gather that the Home Secretary has said the same thing—that there will now be a period of consultation, after which and where necessary proposals for primary legislation will be placed before Parliament and, where that is not necessary, the proposals will be implemented by administrative means.
I have to ask why such a document—a review presented in the first person singular by a reviewer who is an official within the Home Office—should be presented to Parliament in such a way and at such a high level by the Lord Chancellor and the Home Secretary without any clear indication of which parts of the review and which of its many recommendations have the support of the Government and to what extent the Government are prepared to be guided by the consultation process upon which they are now to embark. I have to ask whether it is purely accidental that these Statements are being made to Parliament in the last weeks of this Government and shortly before the dissolution of this Parliament.

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The review contains many recommendations. It is a well written and clearly thought out document with which we agree. Many of the matters raised in it have been the subject of intense work by the Labour Party. Indeed, they have been the subject matter of policy documents which we have produced, not least within the past year. The whole issue of youth justice was discussed at length in a document entitled Reforming Youth Justice, which was produced by Jack Straw in June 1996. As I read the section on youth justice and youth courts in the review, I recognise many of its proposals as those which we made in June last year. Again, in April of last year, we published a document entitled Justice Delayed. When I look at the recommendations on the management of cases before they go to the magistrates' court or the Crown Court and on the distribution of responsibility between the Crown Prosecution Service and the police, I recognise many of the recommendations and proposals that we made in our document in April last year.
Clearly, we are not approaching the review in a spirit of antagonism. However, when we come to what the Lord Chancellor admitted was the most controversial issue, the question of election for trial, I have to ask whether what the Government are now proposing, first, coincides with a proper analysis of the need and, secondly, reflects what has been the government position over a number of years.
The Statement says that last year in the Crown Court waiting lists fell by one-fifth and the number of cases reduced by one-quarter. It goes on to say that in magistrates' courts the proportion of summary only cases reached 76 per cent. Is it not the case that in many parts of the country the congestion is greater in magistrates' courts than in Crown Courts? Therefore, proposals that may result in a risk to civil liberties—we will have to consider that in a moment—and a greater number of cases remaining with magistrates' courts rather than going to the Crown Courts would not directly affect delay and congestion in the courts.
In July 1995 in a consultation paper on the mode of trial (Command Paper 2980) the Home Secretary said:
"Since currently two thirds of committals to the Crown Court are the result of magistrates refusing jurisdiction"—
that is a very much larger number than the 20 per cent. quoted by the noble and learned Lord the Lord Chancellor—
"this has the potential to retain a larger amount of business than by limiting the defendants' right to elect for jury trial".
Therefore, the Government rejected restricting the right to jury trial in favour of this proposal which is now Section 49 of the Criminal Procedure and Investigations Act 1996. I remind the House that Section 49 has not yet been brought into force. Should we not try that first before we move on to a different and conflicting recommendation? It is conflicting not only in the light of what the Home Secretary said in July 1995 but in
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the light of the final response to the Runciman Royal Commission on Criminal Justice made only in July last year. The Secretary of State said in his final response:
"The Government … consider that such a fundamental change"—
I acknowledge that the Royal Commission said very much the same as the noble and learned Lord is saying now—
"to the right to jury trial … should not be undertaken unless it is clear that would he the only possible way of achieving the objective".
The Home Secretary went on to say that the effect of Section 49,
"will be monitored and the Royal Commission's recommendations reconsidered in the light of that monitoring exercise".
Since Section 49 has not been implemented, how can it be said that these proposals are consistent with what the Home Secretary was saying in only July of last year?
The noble and learned Lord has referred to the recommendations about right of audience. He says that he has already implemented the review's proposal that employed solicitors in the CPS should be granted a right of audience for plea and directions hearings at the Crown Court. That is not the same as allowing them representation at the actual trial. Whatever may be the rights and wrongs of that case—I make no judgment on that issue at the moment—the noble and learned Lord will recall that the recommendations of the noble and learned Lord the Lord Chief Justice were that when plea and directions hearings were introduced, the same counsel and legal representatives should be responsible for the case both at the plea and directions hearing and at the actual trial. If there are different conditions for representation in those two, how can we achieve the recommendations of the noble and learned Lord the Lord Chief Justice?
The second major issue to which the noble and learned Lord has referred is the bringing of offenders to court. Clearly, the recommendations about the Crown Prosecution Service must be considered with great care. But the abolition of the public interest test which allows a case to be discontinued if the alleged offence is minor, or if the likely penalty is trivial, is perhaps a suitable response to any initiatives for zero tolerance policing which may be a proper policing objective. However, that returns power to the police and raises again the possibility of conflict between the police and the Crown Prosecution Service and thus the possibility of power being in two places, with the consequent danger of confusion, disagreement and delay.
We welcome what the noble and learned Lord the Lord Chancellor has said about the availability of legal representation from the duty solicitor at court free of charge and the possibility of a very large increase in the number of cases that will be dealt with within 24 hours. Perhaps we should be a little more cautious about the suggested role of justices' clerks. I am not instinctively opposed to that. I welcome the assurances of the Lord Chancellor that such a change will not be at the expense of magistrates' powers. But these issues require far greater consultation than has taken place so far. I have already referred to the issue of youth courts and the fact that many of the recommendations reflect those that the Labour Party made in the course of last year.

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I return to the issue of election for trial by jury and the distribution of cases between magistrates' courts and Crown Courts. I repeat that although 20 per cent. of all cases tried in the Crown Courts result from defendants' elections, two-thirds of all referrals are by magistrates themselves. We must be sure that there is no possibility of two standards of justice: one for those with previously unblemished reputations, and another for those who have criminal convictions. The Statement is quite open about it. It speaks about the complexity of cases or the defence of an unblemished reputation. We must ask ourselves what we in the position of a defendant faced with this choice would do. Would we make that choice in the interests of justice, or in the interests of a fair trial, or in the interests of a lighter sentence or avoiding delay? It is by no means certain that those with resources and good legal advice would make the same decision as those who did not find themselves in that fortunate position. It is that which we must consider before we come to a final conclusion. My instinct is in favour of retaining election for trial by jury unless much better reasons to the contrary are produced than have been produced so far.
I end as I began. These are important proposals. It is not clear whether they are the Government's proposals or the proposals of the official in the Home Office who produced this important and valuable review. But when we come to implement these matters, we will ensure that there is a proper division of responsibility between making recommendations and making decisions on which we shall ask Parliament to act.
Lord Thomas of Gresford: My Lords, I too am grateful to the noble and learned Lord the Lord Chancellor for his introduction to this review. Like the noble Lord, Lord McIntosh of Haringey, I welcome the reference in the conclusion of the Statement to the Government seeking consultation and wishing to listen to the views of those who work in the criminal justice system. I also share the cynicism displayed by the noble Lord, Lord McIntosh, as to the reasons why the Statement is made at this particular point in the Parliament. I refer to what the noble Lord said a moment ago. If it should ever fall to the noble Lord to implement these proposals, or anything like them, we shall be as critical of his proposals as we are of these.
The beginning of the Statement refers to the fall in the Crown Court waiting list. That is true. I noted on Friday last in Birmingham Crown Court that some five courts out of 12 were empty. I also noted the long faces of junior counsel who were standing around at the time. But that has been achieved because of the plea and directions hearings implemented over a number of months which have proved successful. It is easier to get into the Crown Court today to have a case heard than it is to get into the magistrates' court and have the matter completed.
Some parts of the report are much to be welcomed. I welcome the concept of CPS staff being involved with the police at a very early stage. It is enormously helpful to the police to have the guidance and assistance of the
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CPS in the preparation of the case. If that means that CPS staff work in a police station, so be it. I am sure that the CPS will not lose its independence when it does so.
However, the proposal that employed solicitors in the CPS should be granted anything more than rights of audience for plea and directions hearings in the Crown Court would not be a useful addition to the powers of the CPS. It is important that we maintain an independent Bar to prosecute and to defend. It is important and desirable that those who prosecute should also have experience of defending. If the day comes that the prosecution is represented by professional prosecutors who do nothing other than prosecute and people are defended by people who do nothing more than defend, then the quality of criminal justice in this country will suffer.
The concept that the duty solicitor should be accessible to give instant and early advice, and that the person who appears in the magistrates' court should have the benefit of that service, is to be welcomed. One hopes that the necessary funds will be put into the system to pay for the additional work that will be involved.
With regard to pre-trial reviews and administrative powers being given to clerks to the justices, I consider that that is potentially an excellent reform, but it needs to be looked at with considerable care because in certain magistrates' courts half the morning can be taken up by adjournments. If that is replaced by hours and hours spent in unnecessary pre-trial reviews which are not conducted with the rigour that is required, then the system will suffer. As I say, today the delays are more in the magistrates' court than in the Crown Court.
I welcome the recommendations in relation to the youth court. It would be a considerable reform that if cautions are introduced for young offenders it should be possible to attach conditions such as compensation and reparation to the victims. A caution is not enough. If compensation can be given as well, that is highly desirable.
Where I look with great askance, however, is at the proposal to restrict, because that is what it amounts to, the right to trial by jury. The Statement says that 20 per cent. of those tried in the Crown Court insist on being tried there. It would be better phrasing to say that they exercised their right. It is an important part of the freedom of the people of this country to be tried in the Crown Court. The circumstances in which people seek trial in the Crown Court vary enormously. It is not appropriate that magistrates should make the decision as to which way the sheep go and which way the goats go. It is a person's right to have a trial by jury. It is that right which he, and no one else, should exercise. I do not believe that it leads to abuse on a large scale; it leads these days to the swift dispatch of cases.
The matter is in the hands of the professional judges of the Crown Court who ensure that trials are brought on speedily—within weeks, as they are at present. I think that I have said enough to indicate that we consider that the Statement contains many good things, but we look at any suggestion that the right to trial by jury should be restricted with considerable reserve.
The Lord Chancellor: My Lords, I am grateful to the noble Lords, Lord McIntosh of Haringey and Lord Thomas of Gresford, for what they said about the report. The report was commissioned, as I said, in the autumn of last year. For my part—my colleagues share this point of view—I believe it right that both Houses of Parliament should have the report put before them at the earliest opportunity. It would not be right for the Government to take a concluded view on these matters at this stage; rather we should set out the proposals, indicate the basis upon which they have been made, and their possible effect, and then invite consultation on them. That is what we are seeking to do.
I do not know that I should go into the detail much more at present. I know that proposals have been made by the Labour Party to deal with some of these matters. There are concerns which have been expressed from time to time. This is the reviewer's work, as a result of the task that he was set.
There are important distinctions between what the reviewer has proposed and what is proposed in the document to which the noble Lord, Lord McIntosh of Haringey, referred; for example, about the lay magistrates' jurisdiction to try cases in the youth court and other such differences. This is an important document upon which it is right that we should make full disclosure as soon as possible to your Lordships and to the other place, and then consult upon it.
A good deal has been said, in particular by the noble Lords, Lord McIntosh of Haringey and Lord Thomas of Gresford, about the present right in either-way cases, which I think was introduced when such a class of case was introduced for the first time in 1855, or so, to elect for trial at the Crown Court.
The reviewer's proposal is that the decision in that connection should be made by the magistrates with the possibility, as we say in the Statement—I do not believe that the reviewer raises this possibility—of an appeal. The noble Lord, Lord Thomas of Gresford, said that that should not be committed to the magistrates. That is an important question, but the magistrates do have the responsibility of deciding guilt or innocence in a large number of important cases. Those who are qualified to decide guilt or innocence would, I think, have a claim at least to be able to distinguish a good case for going to the Crown Court from a case that was not a good one for going to the Crown Court.
The noble Lord, Lord McIntosh of Haringey, referred to the Government's response to the Royal Commission on Criminal Justice which made a proposal similar to the one the reviewer has proposed. This report of course followed from that. It is right for the Government to be prepared to reconsider those matters in the light of this further report. As has been said, this is an important report, which is well written. I am glad to accept that compliment on behalf of the reviewer. It is one with which I happen to agree. It is clear and well written. It forms a good basis for consultation upon these matters, all of which are vitally important in the desire which we all share, I think, to make our system of criminal justice as good as we possibly can make it, not only in achieving justice but in achieving justice with reasonable expedition.
4 p.m.
Lord Ackner: My Lords, when this House is asked to consider radical proposals, should it not be informed whether there is significant material in existence which points the other way, why the Government have sought to go contrary to that material and whether it is based on research, investigation or what?
Without repeating it, we have raised the point on the Crime (Sentences) Bill that the Government White Paper of 1990 was totally inconsistent with the philosophy put forward in support of the Bill. We have drawn attention to how 20 years ago the Home Office committee under Lord Butler produced proposals for reviewable sentences and turned down the suggestion of life sentences.
There has been no mention in the context of the abolition of the right of election—I am dealing only with that—of a report of the interdepartmental committee under the right honourable Lord Justice James, again some 20-odd years ago. It relates to the distribution of criminal business between the Crown Court and the magistrates' court and it dealt in considerable depth with the question with which we are dealing. I refer only to one observation which appears at the end of paragraph 61. It states:
"The existing right to elect trial by jury is so long established in our criminal justice system and valued so highly that its total abrogation requires very compelling reasons. We doubt whether such a radical change would be sufficiently acceptable to public and professional opinion to enable it to be implemented. We would go further. In our view there is a real danger that the total removal of the present right of election would undermine the trust and support which the criminal justice system at present commands among the general public. However that may be, on the evidence submitted to us we have reached the firm conclusion that the defendant's present right of election should not he replaced by a decision either by the prosecution or by the court".
The report deals in great detail with why it would be wrong for the court to make the decision. It opted for what the Royal Commission referred to in the course of its consideration of the subject; namely, altering the categories of cases which might feature in the either-way lists. Paragraph 16 of the Royal Commission's report states:
"One way of removing cases from the ambit of the Crown Court would be to reclassify the less serious offences as triable summarily only. We have not regarded the task of identifying the offences concerned as falling within our remit".
There is a footnote which states:
"Allowing relatively minor offences to be tried by magistrates would have a considerable impact on the workflow of the Crown Court. The major burden is caused by minor offences of theft (including shoplifting) and handling stolen goods".
Thus it goes on. I therefore ask that particular consideration should be given to re-evaluating that very detailed report of the interdepartmental committee presided over by Lord Justice James.
I wish to raise only one other matter on which I should like my noble and learned friend to comment. The noble Lord, Lord Thomas of Gresford, referred to rights of audience and expressed his anxiety about those rights being given to the Crown Prosecution Service in trials. I understand that the Law Society, under the Courts and

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Legal Services Act, put in an application for such rights to be achieved by employed solicitors. Of course, that will rub off on to the Crown Prosecution Service.
Approximately 18 months ago, the Lord Chancellor's Advisory Committee delivered its decision, which was adverse to granting those increased rights of audience on the ground that it would be against the public interest. I have asked in Written Questions, "When is the Lord Chancellor going to decide one way or another whether he accepts that report?". If he accepts the report, that is the end of the matter. If he does not accept the report, it will then go before the designated judges. It may be that I am out of date and that that has already occurred, but since rights of audience have been referred to by the noble Lord, Lord Thomas, I thought that I ought to raise the matter.
The Lord Chancellor: My Lords, as regards the second matter, yesterday I intimated a decision on the point with the concurrence of the designated judges; that is, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. Without going into detail, it would be fair to say that we agreed the application of the Law Society in part, with considerable conditions attached. The principle condition is that in substantial hearings the employed solicitor could not be the sole or leading advocate.
As regards the James Committee Report, my noble and learned friend will find that in the review by Mr. Narey the James Committee Report is dealt with and referred to in detail. Therefore, the report deals with the matter and indicates the situation in which the James Report was given. Of course, the Royal Commission, which also considered the issue most carefully, had full regard to the detailed work of the committee chaired by Lord Justice James. However, as my noble and learned friend said, that was some considerable time ago and there have been a number of changes in the criminal justice system since then.
There has been a good deal of support for reclassification of some offences, but it has always been difficult to see how that can be done. For example, my noble and learned friend Lord Lane forcefully supported an amendment to take petty theft out of the either-way category on the very day that I was invited to become the Lord Chancellor. Therefore, it is engraved on my memory by that particular coincidence. That issue has been raised a number of times and has been found difficult. It has the disadvantage that everyone knows is attached to such an offence. If you make it summary you will not land in the Crown Court, whereas if the judgment is with the magistrates and they consider that the case is sufficiently serious, it could arrive in the Crown Court if the proposal made by Mr. Narey were accepted. Those disadvantages must be considered, but I agree that this is a most important matter and it is right that it should be carefully considered. This is the opportunity to do that and I hope to do so without any cynicism whatever.
Lord Campbell of Alloway: My Lords, perhaps I may ask a very short question in the context of the appeal to which the noble and learned Lord referred as
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regards the right to elect being removed in favour of the decision to be taken. In circumstances in which identity or the rectitude of a confession or the conduct of the police or Crown witnesses is in issue and is in some way to be challenged, it would be, would it not, assuredly wrong to deprive the subject of a right to trial by jury?
The Lord Chancellor: My Lords, one cannot enumerate all the circumstances one way or the other. That is why it seems reasonable to consider the proposal that it should be decided by a judicial tribunal; namely, the magistrates who are charged with deciding guilt or innocence in a very high proportion of the total number of cases decided in England and Wales.
Earl Russell: My Lords, first, I thank the noble and learned Lord for repeating the Statement. He will have listened many times to the case developed in this House by the noble and learned Lords, Lord Simon of Glaisdale and Lord Hailsham of Saint Marylebone, and most particularly developed by the late Lord Rippon of Hexham in his Hansard Society report Making the Law, against bringing forward too much legislation. Can the noble and learned Lord tell the House how many Bills within the area of the Home Office's departmental responsibilities are at present before Parliament? Should we come back and find another major Bill from the Home Office before us, is he aware that there is a risk that someone may say that its rash, fierce blaze of riot cannot last?
The Lord Chancellor: My Lords, I think, technically, I made the Statement as well as the Home Secretary. As regards the situation of legislation, there are certainly a number of Home Office Bills presently before both Houses of Parliament. Quite a lot of people think that, for example, the Offences Against the Person Bill, which the Law Commission prepared some time ago, would be extremely suitable for legislation.
Noble Lords: Hear, hear!
The Lord Chancellor: I think I pick up some assent to that. The mere fact that there are a number of Bills before Parliament does not mean that it would not be wise to have any more such Bills. I am sure that the noble Earl, Lord Russell, would agree that it is right that we should do everything we can to promote as efficient and rapid a system of justice as possible. This review makes proposals and, subject to whatever views emerge, it may be necessary to take legislative action. Surely that is a wise way in which to act. The decision whether or not to promote legislation must be taken in the light of all the circumstances and is certainly not to be taken at this moment.
Baroness Carnegy of Lour: My Lords, the noble Lord, Lord McIntosh, I am sure rightly, pointed out the implications as regards the changes in the way that it is decided whether a case should be tried in the magistrates' court or the Crown Court. He said that that would mean an increase in the number of cases tried in the magistrates'

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court. That is a matter of interest to lay people. What effect will that have on the workload of solicitors and barristers?
The Lord Chancellor: My Lords, judging from the reaction which the noble Lord, Lord Thomas of Gresford, found in Birmingham on Friday, it looks as though perhaps the barristers would welcome more work. I am not sure. I am not in the business of creating that work but where the work exists, I am in favour of it being done economically and efficiently.
The primary problem in the magistrates' courts is bringing cases to trial. It is not that the trials take a long time. That is where I differ quite fundamentally on a proposal in the youth justice paper to which the noble Lord, Lord McIntosh of Haringey, referred. Once a case comes to trial, it is disposed of extremely expeditiously. In the magistrates' courts the difficulty is the number of adjournments before a case is ready for trial. When speaking to magistrates from time to time, as I have pleasure in doing, they tell me that many cases are adjourned and there is not enough work to do. That is a real and serious problem.
The report makes proposals to deal with that. If those proposals work, then the scope for bringing more cases to trial would thereby be increased. Obviously, the review believes that the magistrates' courts could well accommodate such cases. As was pointed out, a high proportion of those cases are resolved ultimately by pleas of guilty and such pleas of guilty might come earlier if it were not for the remit to the Crown Court.
Baroness Symons of Vernham Dean: My Lords, is the noble and learned Lord the Lord Chancellor aware of the widespread disappointment expressed today within the government legal services and the Crown Prosecution Service about the restrictions on rights of audience that are implicit in the Statement which he made? Is the noble and learned Lord able to tell the House how much taxpayers' money is spent each year in instructing barristers from private practice?
The Lord Chancellor: My Lords, obviously the amount spent is important but the question is whether the interests of justice are served in the circumstances. As my noble and learned friend Lord Ackner mentioned, the committee set up by statute to advise me on those matters considered that issue and came down by a majority of one against the grant of any right of audience on these matters in the higher courts to employed solicitors beyond what they have at present. That was based on the view that their relationship of employment had an effect prejudicial to justice.
Having considered those matters with my colleagues—the designated judges—we took the view that the problem could be dealt with in the way that we have proposed. That is quite a considerable enlargement of the rights of audience of employed solicitors in the Crown Prosecution Service. A way has been found to avoid the possibility of the kind of damage to justice which has been suggested. Obviously, such matters do not stand still completely. As my noble and learned friend Lord Ackner said, we have
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not rushed the matter. I have discussed it very fully with the designated judges. We thought that that was the best balance, and I believe that it is a good decision.
Lord Harris of Greenwich: My Lords, is the noble and learned Lord aware that some of us are rather concerned about the use of the term "petty crime"? A woman charged with shoplifting, who has a blameless reputation, does not regard the charge against her as a petty matter. Many of us would fight very rigorously any possible deprivation of the right to a jury trial for such a person.
The Lord Chancellor: My Lords, I feel certain that the noble Lord, Lord Harris of Greenwich, would have confidence that the magistrates share the values he has expressed. A number of magistrates do so expressly on their declarations on becoming magistrates when we try to preserve a balance in those matters on appointment. Surely, if people are trusted to decide the issue of guilt or innocence, they should be able to decide whether or not a particular case is one in which the right to go to the Crown Court should be affirmed.

Contract (Scotland) Bill
4.19 p.m.
Brought from the Commons; read a first time, and to be printed.

Scottish Legal Services Ombudsman and Commissioner for Local Administration in Scotland Bill
Brought from the Commons; read a first time, and to be printed.
Flood Prevention and Land Drainage (Scotland) Bill
Brought from the Commons; read a first time, and to be printed.

Policyholders Protection Bill
Viscount Chelmsford: 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.—(Viscount Chelmsford.)
On Question, Motion agreed to.

United Nations Personnel Bill
Read a third time, and passed.

National Heritage Bill [H.L.]
4.21 p.m.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, I beg to move that the Commons amendment be now considered.
Moved, That the Commons amendment be now considered.—(Lord Inglewood.)
On Question, Motion agreed to.
COMMONS AMENDMENT
[The page and line refer to Bill (59) as first printed for the Commons.]
1 Page 3, line 20, after 'fund)—' insert—
'( ) after paragraph 4 there is inserted—
"Remuneration
4A. There may be paid out of the Fund to a trustee such remuneration, on such terms and conditions, as the Secretary of State may approve.",'.
Lord Inglewood: My Lords, I beg to move that the House do agree with the Commons in their amendment. The extension of the role of the National Heritage Memorial Fund to include the distribution of lottery proceeds has inevitably resulted in a very substantial increase in the time commitment required from the chairman of the National Heritage Memorial Fund and his fellow trustees. The powers conferred by the Bill are likely to increase the demand still further. The upshot is that we might be approaching the point at which it is no longer reasonable to expect trustees to serve on an unpaid basis as has hitherto always been the case.
The issue is partly one of fairness to those who are willing to serve as trustees, but we also need to bear in mind the possibility that it may become increasingly difficult to persuade high calibre candidates to accept appointment, especially as regards the time-intensive post of chairman, if remuneration is not available. The Government do not propose to take any immediate decisions on the matter; indeed, the current chairman of the NHMF Trustees, the noble Lord, Lord Rothschild, has made it clear that he has no wish to serve other than on the existing unpaid basis. Nonetheless, the NHMF is virtually alone among lottery distributors in that its trustees are currently precluded by statute from being paid.
Under the terms of the present legislation, which of course predates the advent of the lottery, the trustees can be offered only expenses and allowances. Legal advice is that allowances must be interpreted very restrictively and that amendment to the law is needed to enable the trustees to be paid in the usual sense of the word. We have therefore concluded that we should take the opportunity of the Bill to remove the current statutory bar on remuneration. That is the purpose of the amendment made in another place. It inserts an additional provision into Clause 2 to enable remuneration to be paid to trustees out of the NHMF's
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own proceeds, subject to the approval of the Secretary of State as regards the amount concerned and any terms and conditions.
Moved, That the House do agree with the Commons in their amendment.—(Lord Inglewood.)
Lord Donoughue: My Lords, perhaps I may say that, in general, we are pleased that this very useful Bill is completing its course. The amendment has our support and we are delighted to hear that it will not be implemented before the general election. There is a wider problem that I should just like to mention; namely, that of compensating people in the cultural quangos, many of whom work very hard without proper compensation. The amendment would usefully correct that position in a small area.
However, there is one particular point of concern about the Bill and that is the question of clawback—the provision to recover grants which have been made should the beneficiary subsequently sell at a capital profit with the help of the amendment. Can the Minister confirm that the arrangements for clawback are indeed satisfactorily in place and that they will normally be applied?
Lord Inglewood: My Lords, I am gratefully reassured by the remarks made by the noble Lord, Lord Donoughue, in support of the proposed amendment. The noble Lord raised the matter of clawback which is important. I hope that it might be helpful to your Lordships to put the matter on the record. The legislation gives the NHMF Trustees a power to attach such conditions as they think fit in making a grant. Such conditions may relate, among other things, to disposal of the heritage asset concerned and repayment of that grant.
So far as concerns actual practice, the NHMF will continue to monitor all projects after payments have been made and, where appropriate, it will clawback the grant paid under the terms of the grant agreement. Clawback can include a proportionate share of any capital appreciation in value resulting from the grant, should the heritage asset concerned be sold. That applies where the NHMF permits the sale of a heritage asset or where the conditions of grant are breached. I hope that that response will reassure the noble Lord.
Lord Strabolgi: My Lords, before the Minister sits down, perhaps I may ask him a question. I know that the Government will not implement the grants immediately, but can the noble Lord give me some idea as to how much the remuneration will be for the trustees? On this side of the House, we accept that the work of the trustees has increased enormously and that there was a great omission in the Bill, until now, in that they were supposed to work for nothing. I understand that the noble Lord, Lord Rothschild, has generously said that he will continue; but, if the Government are to attract trustees of the right calibre, it will be necessary to make it worth their while so that they are not out of pocket. Can the Minister give me some idea of the position in that respect?

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There is a further point. A certain disparity has arisen between the quangos of other parts of our national life and those relating to the cultural heritage. I believe that those which relate to the cultural heritage are at a great disadvantage compared with some of the other quangos where the trustees are very handsomely rewarded. Can the Minister give me some idea as to the Government's thinking in that area?
Lord Inglewood: My Lords, as I explained in my opening remarks, we have no immediate plans to implement the changes proposed. It was a matter of putting the provisions on the statute book and then deciding, in the circumstances of some future case, what the appropriate level of remuneration might be. As no decision has been taken to implement the proposals, it would be premature to assess what might be the appropriate going rate for the job at the time. I hope that that answers the question put by the noble Lord, Lord Strabolgi.
On Question, Motion agreed to.

Crime (Sentences) Bill
4.28 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 (Baroness Turner of Camden) in the Chair.]
Clause 36 [Fine defaulters]:
Viscount Tenby Viscount Tenby moved Amendment No. 100:
Page 26, line 45, after ("period") insert ("not exceeding 56 days").
The noble Viscount said: In moving the amendment, I shall speak also to Amendment No. 101. We have already spoken at considerable length on the subject of driving disqualification as a disposal for non-motoring offences. In view of what is listed today on the Marshalled List after my amendment, I suspect that we are not yet out of this particular wood.
Clause 36 makes available to the court such disqualification where there has been wilful refusal to pay a fine or fines. I confess to having some reservations about the implications of using disqualification for anything other than a motoring or an associated offence. Let me say now that I understand fully the points made in particular by the noble Lord, Lord Thomas of Gresford, and the noble Earl, Lord Russell, on the third day of Committee.
There is justifiable worry that loss of mobility will obstruct those seeking jobs. After all, it is often loss of employment which makes some fine offenders get behind in their payments in the first place. Of course, the unpalatable fact, which many refuse to accept, is that a low income is not a solid basis for car ownership in the first place—a home truth which becomes only too
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apparent in many driving without insurances cases. In any event, there are many non-payers who are perfectly able to pay but who choose not to. Somehow the money has to be prised from their reluctant fingers. The courts need as many tools as possible for this, otherwise they may seek more draconian measures than fines in the first instance.
Having voiced these reservations, however, I have to weigh them against the fact that I, like so many others, have been seeking alternatives to custody for such fine evaders. Almost any initiative which seeks to do that ought to be given a try. In this I believe I share the views of the noble Lord, Lord McIntosh. I make two points only on this. First, there is to be a pilot scheme. Presumably if this shows that the proposal is unworkable or there is solid—I stress the word "solid"—evidence that it is proving inequitable, the provision will presumably be withdrawn. No doubt the Minister will confirm this.
I emphasise my second point in relation to the fears expressed on this subject earlier by some Members of the Committee. Magistrates will have complete discretion to use this sanction, or another more appropriate one. If a person's job is in jeopardy, the magistrates will not wish to use it as that will make the ultimate objective of paying the fine in question even more unattainable. I should have thought that was fairly obvious. I must assure the Committee that most magistrates are sensitive to these concerns and think long and hard before passing sentence. They endeavour to make that sentence as practical and constructive as possible.
I apologise to the Committee for the somewhat extended preamble. I now turn to the first of my amendments. The point about limiting the period of disqualification to 56 days is that after that time a driving licence has to be sent to the DVLA at Swansea and consequently existing penalty points will be automatically erased. These points will have been imposed as the result of driving offences of varying degrees of seriousness. It seems inappropriate that they can be wiped out by a sentence for a totally unrelated matter. Accordingly, it would surely make sense to keep the confiscated licence at the local court to which the offender could be listed to return on an appropriate date in the future.
I now turn to Amendment No. 101. Driving while disqualified is rightly seen as a serious offence which can attract a custodial sentence. Nevertheless, there are many who regrettably take that risk, as I am sure my magistrate colleagues in this place will confirm. On the whole, however, the police are able to keep tabs locally on such reckless and irresponsible drivers because most of them are known to them. In future they will have to deal with an added complication; namely, someone driving while disqualified whom they will have no reason to believe may be disqualified. This problem will be exacerbated if proportional reduction in the disqualification period is permitted as the full or part payment of the outstanding fine. A pilot scheme should surely above all be simple. The more complicated it is,

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the more likely it is to fail. Those of us who want to find alternatives to custodial sentences do not want it to fail.
These provisions will make it much more difficult for the police to catch disqualified drivers and that, in turn, will increase the risk to ordinary members of the public from disqualified drivers. I invite the Minister to grapple with the following at two in the morning in driving rain:
"And the total number is reduced if it is reduced by such number of complete weeks or months as bears to the total number the proportion most nearly approximating to, without exceeding, the proportion which the part paid bears to the whole sum".
Quite frankly, I pass on that, and if a traffic cop has any sense, he will too.
I appreciate that it may well be thought by some to be inequitable that an offender may be able to cancel a community service order early through settlement of a fine when that right may be denied to a disqualified driver. I suppose I could argue that one disposal is negative while the other—putting something back into the community through work—is positive, but I do not have high hopes that such sophistry would gain agreement on all sides of this Chamber.
To summarise, these amendments seek to make the provisions as simple as possible. They seek to remove the administrative and operational complications inherent in permitting offenders to buy their licence back through early repayment. I ask the Minister even at this stage to look at these provisions again and, if need be, consult other interested parties before Report. I beg to move.
Lord Monson: I apologise if this question has already been raised and answered earlier in the Committee stage at a time when I happened to be out of the Chamber. When she replies, will the noble Baroness clarify the position regarding insurance if these amendments, and indeed these clauses, are ultimately accepted? When an individual is disqualified from driving for one, two, three or four years, or longer—as is usually the case when disqualification is imposed—the insurance cover automatically lapses. But if an individual is disqualified only for a matter of a few weeks, presumably the insurance policy normally remains in force. If, despite being disqualified, an individual nevertheless drives during the disqualification period, is the insurance cover—both the third party cover and, for example, the cover against injury to passengers—automatically invalidated? If so, it is the innocent who will suffer.
Baroness Blatch: The first amendment of the noble Viscount would restrict to a maximum of 56 days the period of disqualification from driving a court could impose for fine default. This Committee's debate on Clause 35 last week highlighted the fact that disqualification from driving can affect different offenders in different ways. For example, the person who lives in the country will feel a greater degree of punishment by being deprived of the freedom to drive than the person who lives in the town and has ready access to public transport.
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It is not our intention that those who default on small fines should be disqualified for years and years. Nor would it be right for the person who defaulted on a small fine to end up losing his job as a result of disqualification. But we do not doubt that magistrates will use this power responsibly. As the noble Viscount said, magistrates are sensible, sensitive and wise, and they will take such factors into account when determining an appropriate disposal of the court. I think the noble Viscount said that if a person's job was in jeopardy and he lived in a part of the country where it was simply not possible to get to and from work without driving, magistrates would be sufficiently sensible to take into account whether they were imposing a disproportionate sentence. That would, of course, be a matter for the magistrates.
I also take seriously the point the noble Viscount made about the pilot scheme. He asked what would be considered in the process of evaluating pilot schemes. I believe he mentioned solid evidence of a pilot scheme being unworkable. If there was evidence it was unworkable, or that it was not a practical disposal, or was not having the effect we believed it would have, there is nothing we shall not be prepared to consider in the course of looking at the pilot scheme. We would wish to consider carefully all the points raised by the noble Viscount and the many other aspects that will arise as the provision rolls out in the courts.
Magistrates will be able to decide in each individual case whether disqualification from driving is appropriate and, if so, for how long. We do not anticipate that magistrates will have any need for a power to disqualify fine defaulters for longer than a year. There is no reason not to make that clear on the face of the Bill. I propose, therefore, to bring forward amendments at Report stage to provide for an upper limit of 12 months. I note that the reasons given by the noble Viscount for 56 days are rather different, but addressing the principle of whether there should be a maximum is important, and we would wish to bring forward an amendment which would put the 12 months upper limit on the period of disqualification from driving which could be imposed for fine default.
The much shorter maximum period of 56 days proposed in the amendment would in my view be too short to be an effective means of enforcing anything but the smallest fine. Magistrates need a wider discretion so that they can reflect properly the amount of the fine in the penalty for default.
The pilot projects will provide an opportunity to judge whether 12 months gives magistrates a wide enough discretion in practice. It could be that even 12 months is too short a period for the effective enforcement of many fines. It would therefore be sensible to allow for this 12-month limit to be varied subject to the affirmative resolution procedure. This mirrors what we have already provided in the Bill in respect of the community service hours and curfew days that can be imposed for fine default.
Perhaps I may accept the spirit of what the noble Viscount said: we have to continue to be imaginative about balancing effective punishment but keeping

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people as far as possible out of prison cells. This is at least one more step down that road. Even though the noble Viscount has expressed reservations, I think that he is sufficiently open-minded to accept that this is an attempt to deal with fine defaulters in a way that would be effective. Without such a provision there would be no incentive for an offender to repay either in part or in whole.
I now deal with Amendment No. 101. We have already debated a similar amendment in relation to Clause 31. As I said on that occasion, the main purpose of provisions dealing with fine default is to make the offender pay the fine or other financial penalty imposed upon him by the court. That is why we have provided under subsection (4) of this clause for an offender who has been disqualified from driving for fine default to reduce the period of disqualification either fully, if he repays the total amount of fine outstanding, or in proportion to the amount of the outstanding fine repaid.
Perhaps I may respond to the point about the poor policeman in the middle of the night—I believe that 2 a.m. was mentioned—dealing with the complicated formula set out in Clause 36(4). I hope that that would not be the intention in the practical working out of the provision. I suspect that there would be some form of codifying the adjusted date so that the policeman's concern would be whether the person was or was not disqualified on the day that he was caught driving at 2 a.m. It would not be for the policeman to have to do that calculation but for the courts to make the adjustment in sentencing. I hope that that is helpful.
As regards the other points raised by the noble Viscount, buying back provisions would be complicated. It would be a matter for the courts to deal with, as I said. That is where the payment of the fine is made. We believe that the Bill's provisions will be clear to court staff who will have training in the matter. However, the noble Viscount did not want, nor do we want, policemen having to make those complicated arithmetical calculations in the middle of the night when their business is arresting someone who is driving while disqualified.
The noble Lord, Lord Monson, asked about insurance. We think it unlikely in principle that insurance cover will continue to apply to any person disqualified from driving for however short a period. I do not think that an insurance company would wish to carry that responsibility. It would be normally a condition of the insurance policy that it covers only a driver with a licence. However, that is a matter that we would wish to consider when working out the details of the provision. I believe that insurance companies would take that view.
Perhaps I may assure the noble Viscount that we shall consider all the points raised by him in speaking to the amendment, and will be extremely mindful of his reservations when evaluating the exercise.
4.45 p.m.
Lord Swinfen: Before my noble friend sits down, perhaps I may refer to the question of insurance. Are
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not a large number of private motor vehicles stored on the public highway? Would they not have to be insured whether or not the driver was disqualified?
Baroness Blatch: The property would be insured. We are talking about the driver who may be involved in or cause an accident while driving and the degree to which the insurance company would consider itself liable for compensation. I cannot believe that there is an insurance company—if there is one, I should like to know where it is—which would meet a liability if the driver was disqualified.
Lord Ackner: Might I suggest that the Minister looks into the position about the motor insurance bureau and the extent to which it carries the risk where a third party ceases to be covered? I cannot tell the noble Baroness the position offhand, but I believe that it is a relevant matter to look into.
Baroness Blatch: I have given an assurance that we shall consider these matters. I have answered the question intuitively at present, but I should like to come back with a more reasoned reply, perhaps in writing, to the noble Lord.
Viscount Tenby: I am grateful to the Minister for her helpful reply to some of the concerns expressed. I am encouraged by some of the remarks she made. Perhaps I may leave one question hanging in the air, so to speak. Is the noble Baroness satisfied that people who have had endorsed points on their driving licence for motoring offences should have those points wiped off when their disqualification is the result of something totally unconnected with motoring? I have to confess to dramatised polemics in my illustration of the policeman. I also have to confess to an omission as regards the policeman. The incident took place in Cambridgeshire.
Perhaps I may leave the question with the Minister. On the grounds that she has been kind enough to express, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 101 not moved.]
Clause 36 agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 102:
Before Clause 37, insert the following new clause—
DISCLOSURE OF PRE-SENTENCE REPORTS
(" .—(1) This section applies where a court obtains a pre-sentence report within the meaning of Part I of the 1991 Act.
(2) Subject to subsections (3) and (4) below, the court shall give a copy of the report

(a) to the offender or his counsel or solicitor; and

(b) to the prosecutor, that is to say, the person having the conduct of the proceedings in respect of the offence.

(3) If the offender is under 17 and is not represented by counsel or a solicitor, a copy of the report need not be given to him but shall be given to his parent or guardian if present in court.
(4) If the prosecutor is not of a description prescribed by order made by the Secretary of State, a copy of the report need not he given to the prosecutor if the court considers that it would be inappropriate for him to be given it.
(5) No information obtained by virtue of subsection (2)(b) above shall be used or disclosed otherwise than for the purpose of—
(a) determining whether representations as to matters contained in the report need to be made to the court; or
(b) making such representations to the court.
(6) The power to make order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Baroness said: The proposed new clause requires courts to give a copy of a pre-sentence report to prosecutors. At present, when a court obtains a pre-sentence report, the defence are given a copy but the prosecution are not, even though they are present at the time of sentence. This inhibits the prosecution from fulfilling their responsibility to correct any misleading or inaccurate information put before the court. It also inhibits the prosecution from challenging any assertions contained in a pre-sentence report about witnesses which may not be warranted according to the prosecutor's knowledge, or which may be detrimental to the defendant. The Government can see no justification, in the vast majority of cases, for denying the prosecution access to a report commissioned by the court. Indeed, the Crown Prosecution Service has for some time sought access to pre-sentence reports.
The proposal to allow prosecutors to see pre-sentence reports was included in the White Paper Protecting the Public which was published in April last year. It received overwhelming support from prosecuting agencies. Responses from probation services, probation committees and their representative bodies were mixed: there was much support, but also some concern expressed about which prosecutors would get a copy of the pre-sentence report and what use they could make of it. In drafting this clause we have taken account of those concerns and have built in the following safeguards.
First, pre-sentence reports will only be given to prosecutors in proceedings which are prescribed in an order made by the Secretary of State by statutory instrument and so will be subject to parliamentary approval. We envisage that such an order will include the main prosecuting agencies, like the Crown Prosecution Service, but that it will exclude private prosecutors. Where a prosecutor conducts proceedings who is not automatically entitled to receive a copy of the pre-sentence report, the court will have the discretion not to disclose, if it thinks it inappropriate to do so.
Secondly, prosecutors will only be able to use or disclose information obtained from a pre-sentence report when determining whether to make representations to the court about matters contained in the report, or when making such representations.
This clause strikes a good balance. It will enable the prosecution to perform its role more effectively but it will be subject to necessary statutory and judicial safeguards. We will be consulting with the Lord Chancellor's Department, the main prosecuting agencies, Probation Service representatives and other interested bodies about the details of implementation to
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ensure that the new arrangements operate to best effect. I hope that for those reasons noble Lords will accept this new clause as part of the Bill.
Lord Gladwin of Clee: As the Minister knows, there is some disquiet about this proposal. I am sure she will accept that courts regard the pre-sentence report as being their property. They have asked for it to assist in helping them determine the most suitable method of dealing with a convicted offender. If the facts of the offence outlined in the PSR are materially different to those of the prosecution case, and if that difference could affect the sentencing process, then a Newton hearing can be held in order to determine the facts in dispute.
Subsection (5)(a), as currently worded, has the potential to give the prosecution power to comment on any aspect of the pre-sentence report including the probation officer's assessment of an offender's response to a particular sentence. That may not have been the intention, but that is the power which the clause would give to the prosecution. I do not believe that provision will be welcomed by the Crown Prosecution Service.
There is a danger that convicted defendants, knowing that the PSR is to be routinely given to the CPS—a number of defendants still regard the CPS and the police as being part of the same organisation—would be inhibited and less co-operative with the Probation Service. That could mean that the pre-sentence report would be a less valuable document for use by the courts.
After 28 years' experience as a magistrate, my perception is that, eight times out of 10, when considering what used to be the "social inquiry report", now the pre-sentence report, the author of that report is not present in court. So if a prosecutor wants to comment on the pre-sentence report, an adjournment is inevitable. That increases the cost and means further delay.
I question the need for this change. When a Bench decides that it needs a pre-sentence report there has been a conviction. The job of the prosecution is finished. It should not be involved in the sentencing process. If, in the interests of justice and the protection of the public it was felt that a pre-sentence report should be shown to the prosecution, then that should be a decision for the court in each case. A pre-sentence report should not routinely be handed to the prosecution in every case. I therefore hope that the Minister will re-examine this proposal.
Earl Russell: I have some misgivings about the wording of the amendment. Subsection (3), dealing with offenders under 17, states that,
"a copy of the report need not be given to him but shall be given to his parent or guardian if present in court".
If the word "may" had been used, I should not have raised this point. But, as the Minister knows, there are cases of young offenders where a great deal is likely to come out in the pre-sentence report in cases of estrangement, for example, which may be extremely prejudicial to the parent. Indeed, on occasion the parent may wish to argue with it. There will be great difficulty in getting frank statements, say, in cases of alleged but

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disputed child abuse if it is known when the statement is being put together that it will be shown to the parent. I should find it very helpful if the Minister will agree that at the next stage of the Bill we can change the word to "may". As it is, the wording of the subsection really will not do.
Subsection (4) begins with the words,
If the prosecutor is not of a description prescribed by order made by the Secretary of State".
I thought that the Government were hostile to over-prescribing. I understand the intention behind this as the noble Baroness stated it; namely, to exclude private prosecutors. I have no quarrel with that intention, but the power to prescribe, once it is there, may be used for all sorts of purposes by future governments other than the one for which it is intended. So far as I can see, there is nothing but our hybrid instruments procedure which stops this power from being used to say that it shall be disclosed to the prosecutor provided he is not Mr. Mike Mansfield, QC.
A much more serious concern is that I simply do not see what the prosecution has to do with the business of sentencing. The prosecution's job is to attempt to establish guilt. There is here a real separation of powers. When the prosecution has established guilt, then it is for the court, not the prosecutor, to establish the sentence. If people make disclosures in a pre-sentence report which may perhaps involve some other offending behaviour and that will come into the hands of the prosecution, there is a real risk of self-incrimination, and that really does worry me.
When I was a boy, I used to read in the papers reports of trials from Eastern Europe. I used to read that the prosecutor "asked for the death penalty". It always used to give me a great sense of shock. I used to think: what business is it of the prosecution to have these statements? I do not understand that.
Viscount Tenby: I am not entirely clear about the purpose of this amendment despite the Minister's concise statement. There seem to be two principal objections to it. They have been admirably identified—the first by the noble Lord, Lord Gladwin of Clee. He is probably at least two years senior to me on the Bench (I have not quite worked it out yet). Anyone with experience of a magistrates' court knows that the duty probation officer on any given day may well not be the author of the PSR being considered by the court. Accordingly, if the Crown Prosecution Service wishes to question the author, unless he or she is on the premises (often they are not; they are out looking after their charges) there may have to be an adjournment. All that adds to the cost and to the delay in justice. We all know that delayed justice is justice denied.
The other reservation expressed in particular by the probation services is that offenders may be reluctant to unburden themselves freely to the person compiling the report if they feel that it will be seen by the prosecution. I can understand that. I do not say that it will happen on every occasion, but that feeling may well be there. I have not felt that any particular disadvantage was
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suffered by the prosecution to date in not being aware of the details of the PSR. I have yet to be convinced that the amendment is necessary.
5 p.m.
Lord Hylton: I am not a magistrate, but I have misgivings about the amendment. I take particularly seriously the criticism made by the Inner London Youth Court Panel of magistrates. The panel stated:
"We believe the inhibiting effect upon those preparing PSRs of knowing that material which is disclosed in the report … could fall into the hands of the prosecution will be deleterious to the interest of defendants, without in any way enhancing the need of the court to have a fair presentation of the Crown's case".
In her introductory remarks, the noble Baroness mentioned that certain safeguards were contained in the amendment, but I am not convinced that the safeguards deal with the point.
Lord Simon of Glaisdale: I wish to raise a small drafting point supplementary to the point on subsection (3) made by the noble Earl. I shall be glad to hear whether I have misread it, but as I understand it, if the offender is under age and is not represented, the report need not be shown to him but shall be shown to a parent or guardian if the parent or guardian is present in court. But if there is no parent or guardian present in court, it seems to me that there is no obligation for the report to be shown to the offender or anyone connected with him at any stage. I cannot believe that that is the intention.
The Earl of Mar and Kellie: I am not keen on the amendment. I feel that it threatens the integrity of report-writers. It may be helpful to the Committee to say that a pre-sentence report is not a plea in mitigation; it is a report about the offender's background and the possibility of disposal.
As other Members of the Committee have said, it threatens the co-operation of the subject and there is already a problem with deciding exactly how much to put into the social background aspect of a pre-sentence report. I think the amendment will not be helpful because it will cause reports to be minimised rather than maximised.
Lord Thomas of Gresford: I have been seeking to identify the problem that has caused the Government to put down the amendment. It seems to me that the Government are concerned that a court may be misled in some way by a pre-sentence report and therefore that they want to have the matters contained in the report checked by the Crown Prosecution Service. I can think of no other reason for the amendment.
However, one must consider what happens in practice. Many Members of the Committee have talked about the magistrates' courts, perhaps I may refer to what happens in the Crown Courts. If a defendant pleads not guilty and is found guilty, that is the end of the matter. The case as put forward by the Crown has been accepted by the jury and therefore the sentencer proceeds to sentence on the basis of those facts. He is

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helped in that by looking at personal information relating to the offender, to which I shall return in a moment.
If, on the other hand, the offender pleads guilty and then a speech of mitigation is made on his behalf, there are two ways of dealing with any differences that may arise between what is said on the facts by the defence counsel and what is said by the Crown. One possibility is to hold the Newton hearing whereby evidence is called and the judge decides what happens. Another way recently approved in the Court of Appeal is that the facts should be agreed between prosecution and defence before the plea is tendered. Whichever of the two options is adopted, the court has a firm basis of fact on which to sentence.
If in the course of mitigation counsel for the defence puts forward another basis of fact which is in dispute, then it is open to the prosecutor who hears that speech in mitigation to intervene and ask for a Newton hearing or for some other way of dealing with the matter. It is not necessary that he should be given access to pre-sentence reports. Those are reports which may perhaps refer to the defendant's version of events, but it is more helpful if they are concerned with issues such as drugs, alcohol, family crises, the physical or mental health of the defender, his attitude towards the victim and his attitude towards the crime, whether he is remorseful. There will be references to his past record and how successfully he may have completed non-custodial sentences in the past. His attitudes and characteristics set out in that report are there to assist the sentencer to judge various matters: first, what kind of a risk is the defendant to the public; secondly, what is his attitude to re-offending likely to be in the future? That has nothing whatever to do with the function of prosecuting.
If it were merely a question of handing over a copy of the report to the prosecution to check the facts and there were no knock-on effects, perhaps nothing particularly serious would have occurred. But, as the noble Lord, Lord Gladwin, emphasised and as was repeated by the noble Viscount, Lord Tenby, inhibitions will be placed upon the offender which will prevent him from being as frank and open about the personal issues which I have outlined in discussing the matter with the probation officer who prepares the report. If those matters are not set out fully, if the prisoner has no confidence in the person who is trying to help him, then the recommendations of that person will be affected. It will be a less useful report to the court and nothing has been gained.
I repeat, if the purpose of the amendment is simply to check the facts, the prosecutor can hear them when mitigation is advanced in court.
Baroness Blotch: I am astonished at the support for a lack of openness in the court. I am also astonished that the noble Earl, Lord Mar and Kellie, should say what he did when he has wide knowledge of the Scottish system where there is exceeding openness in court,
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where the prosecutor and the defence see the report. That has happened for years and years and there has been no problem.
I listened carefully to what Members of the Committee said. It seems to me that they have been making the case that no one should see the pre-sentence report other than the magistrate or judge. If there is a case for the defence seeing it, then in the interests of openness, there must be a case for the prosecution seeing it.
Experience has shown that it is possible for the courts to be misled by a pre-sentence report, even one carefully and diligently prepared in accordance with national standards. The purpose of the Government's new clause is to enable the prosecution to discharge its responsibility to ensure that the courts are not misled in this way.
What kind of cases are we talking about? It may assist the Committee if I offer some examples. The probation officer who prepares a PSR does so on the basis of information principally received from the prosecution and the offender. At the time the author prepares the report, the material supplied earlier by the CPS may no longer accurately reflect the current position. For example, there may have been a trial at which other evidence emerged or certain evidence was not accepted by the court. For many reasons the circumstances may well have changed.
It is also easy to see how an offender might succeed in giving the report writer a misleading account, for example, of the relationship between him and the victim of the offence. An offender may give the false impression that he had been bullied by the victim in the case over a long period. That may affect the writing of the section of the report which analyses the offence and assesses the degree of premeditation.
The PSR should also include information about the context in which the offence occurred, including information about relevant associated offences. Material supplied by the CPS and the offender's account may not give the full picture; it may not even give an accurate picture. If the CPS had the opportunity to see the report it could raise the matter with the defence in advance of the hearing. If the issue were not resolved, it could make appropriate representations to the court. The prosecution can already comment on matters raised orally. If it were to comment inappropriately the court would deal with that accordingly. There is no real difference between that situation and the proposed situation in which the prosecution is to have sight of written matters.
Matters upon which the prosecution can currently comment would include, for example, where the defence says in mitigation that there has been a history of provocation by the victim (a vendetta over several months) and that this was the last straw and the defendant snapped. If the prosecution information was significantly different from that, it might comment accordingly. Why should the situation be different because the defendant's version is included in a PSR rather than in a speech in mitigation? Though it is not a fact in the case, it is a matter upon which prosecution comment could be relevant.

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I looked again at the White Paper and came across another example. The defence may refer in mitigation to some aspect of the defendant's circumstances which either conflicts with or is not mentioned in the PSR and which it may be necessary to challenge. The noble Lord, Lord Gladwin of Clee, referred to Newton hearings. The advance disclosure of a PSR to the prosecution will not preclude the holding of a Newton hearing where factual matters are not agreed. Advance notice of possible disputes may reduce the number of such hearings and therefore save time and costs on sentencing.
The noble Lord, Lord Gladwin, referred also to the need for adjournments if there is a dispute about the PSR—a point made also by the noble Viscount, Lord Tenby. We envisage that the prosecution will have a copy of the PSR at the same time as the defence and therefore the issue can be addressed before the court at the time of sentence without the need for an adjournment.
The question was also posed that if offenders know that the prosecution is to see the pre-sentence report it may make them less frank when being interviewed by the report writer and so mean less effective supervision. It is already the case that prosecutors may obtain a copy of the pre-sentence report if they are appealing against an unduly lenient sentence—rather late in the day for the prosecutor. Offenders know that. Furthermore, where the court decides to impose a custodial sentence, a copy of the pre-sentence report is sent to the custodial institution. Offenders know that too. I do not envisage therefore offenders being any less candid as a result of this clause than they already are.
The noble Earl, Lord Russell, referred to decisions in relation to private prosecutors that may be for the discretion of the court. There is no power to say who will not receive the PSR. However, I shall continue looking at the wording of the clause and keep the whole of the Bill under consideration while it passes through this Chamber.
The noble and learned Lord, Lord Simon of Glaisdale, posed a question concerning the juvenile under the age of 17 where the intention would be that the PSR should go to a guardian or parent. The point is an important one. However, I do not have an answer for the noble and learned Lord. I shall go away and consider whether, in the absence of a parent or guardian, the pre-sentence report should be given to the juvenile and whether there is a distinction between a 17 year-old and a much younger person.
Lord Simon of Glaisdale: I am obliged to the Minister.
Baroness Blatch: The noble and learned Lord, Lord Simon, referred also to the disclosure of reports to parents of juveniles. As I said, I shall look at that.
The noble Lord, Lord Hylton, referred to an offender's reluctance to disclose information. It is still in the offender's interest to co-operate; that is the whole purpose. The dialogue between the probation officer, who is the report writer for the purposes of putting the PSR before the court, and co-operation by the individual is extremely important. Frankness on the part of the report
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writer is also important. It is primarily inaccuracies that will be corrected; for example, misleading versions of a relationship, to which I have already referred.
Perhaps I may refer to a point raised by the noble Earl in relation to subsection (3), and refer him to subsection (5), which states:
"No information obtained by virtue of subsection (2)(b) above shall be used or disclosed otherwise than for the purpose of—(a) determining whether representations as to matters contained in the report need to be made to the court; or (b) making such representations to the court".
The purposes for which the information can he used therefore will be properly prescribed in law.
5.15 p.m.
Lord Thomas of Gresford: Before the Minister sits down, perhaps I may raise this matter. The noble Baroness said that there would be a saving of time and cost. That turns the practical position upside down. Where is the inquiry to end?
A sentencer receives a report from an independent person—the person who writes the report; he is not a defence advocate; he or she is neither working for nor instructed by the defendant; they are there to give an objective report to the court. If that objective report is to be handed in every instance to the Crown Prosecution Service dealing with the personal circumstances of the individual, what is the Crown Prosecution Service then supposed to do? The person in the CPS is unlikely to know anything about the background of the defendant and therefore the police will have to be brought in to investigate what the independent writer of the report has discovered. All of that will then be the subject of some sort of hearing, some dispute, which goes back to the judge to determine.
The whole thing escalates further and further. All that one can reasonably require, within reasonable cost and practicality—a matter which might appeal to the Minister—is to have the assistance of an independent report without having to take the nitty-gritty even further. That is in addition to the down-side of the preparation of that report, to which I have already referred.
Baroness Blatch: I have to ask the noble Lord what good reason he believes there is for the sentencer to see the report, for the defence to see the report and not for the prosecution to see the report. The noble Lord is vocal on many of these subjects; but if, as he is suggesting, something may be so wrong as to need to be challenged by the police in order for it to be resolved, is he really saying that reports that could contain that degree of inaccuracy—that degree of challengeable information—should be seen only by the sentencer and the defence and kept secret from the prosecution? There is no case whatever for that.
Lord Thomas of Gresford: I apologise to the Minister for being vocal; I thought that is what we were here for.

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The prosecutor has no business becoming involved in the sentencing process. The Government always fail to understand that the public must retain confidence in the criminal justice system; they have to feel that it is fair and impartial. There is a place for the prosecution and a place for the defence.
Pre-sentence reports are not held in great secrecy, delivered under plain envelope to the defence; they are freely thrown around the bench and reference is made to them throughout by the defence counsel. But the prosecutor is not interested. He knows instinctively that it is not a matter about which he should become vocal.
Baroness Blatch: The prosecutor represents the public interest in these affairs, and it is as much in the interests of the prosecution and the public that the sentencer does not proceed on the basis of possibly inaccurate information. Given that there is no one to challenge it other than the prosecution, there can be no reason for keeping the information from the prosecution.
I know the noble Lord is aware that not infrequently one finds the defence using PSR information in mitigation to the sentencer, influencing the sentencer when it comes to awarding a sentence. All I am saying is that, for the sake of openness, it must be right that the prosecution as well as the defence is privy to that information.
The Earl of Mar and Kellie: I thank the Minister for what she has said. She is right. The procurator fiscal in Scotland is always given the report. But I have never known a procurator fiscal to comment on or challenge what is in a report. Therefore, it is subsection (5)(b) that I find difficult.
5.20 p.m
On Question, Whether the said amendment (No. 102) shall be agreed to?
Their Lordships divided: Contents, 122; Not-Contents, 57.

Division No. 1

CONTENTS

Abinger, L.

Campbell of Cray, L.

Addison, V.

Carnegy of Lour, B.

Anelay of St. Johns, B.

Carnock, L.

Balfour, E.

Chalker of Wallasey, B.

Belhaven and Stenton, L.

Charteris of Amisfield, L.

Beloff, L.

Chelmsford, V.

Berners, B.

Chesham, L. [Teller.]

Biddulph, L.

Clanwilliam, E.

Birdwood, L.

Clark of Kempston, L.

Blatch, B.

Clinton, L.

Bowness, L

Coleridge, L.

Brabazon of Tara, L.

Courtown, E.

Braine of Wheatley, L.

Cranbome, V. [Lord Privy Seal.]

Bridgeman, V.

Crickhowell, L.

Brigstocke, B.

Cross, V.

Brougham and Vaux, L.

Dacre of Glanton, L.

Burnham, L.

Davidson, V.

Byford, B.

Dean of Harptree, L.

Cadman, L.

Denbigh, E.

1310

Denham, L.

Mountevans, L.

Denton of Wakefield, B.

Mowbray and Stourton, L.

Dixon-Smith, L.

Munster, E.

Donegall, M.

Murton of Lindisfarne, L.

Dundee, E.

Nelson, E.

Ellenborough, L.

Newall,L.

Elles, B.

Norrie, L.

Elliott of Morpeth, L.

Northesk, E.

Gainford, L.

O'Cathain, B.

Geddes, L.

Oxfuird, V.

Goschen, V.

Park of Monmouth, B.

Gray of Contin, L.

Pender, L.

Harding of Petherton, L.

Plumb, L.

Hardinge of Penshurst, L.

Plummer of St. Marylebone, L.

Harlech, L.

Rankeillour, L.

Henyhoe, L

Renwick, L.

Henely, L.

Romney, E.

Holderness, L.

Rotherwick, L.

HolmPatrick, L.

Rowallan, L.

Hood, V.

St. Davids, V.

Hooper, B.

Seccombe, B.

Inglewood, L.

Selborne, E.

Keyes, L.

Shaw of Northstead, L.

Kilmarnock, L.

Skelmersdale, L.

Liverpool, E.

Stewartby, L.

Long, V.

Strange, B.

Lucas, L.

Stranthclyde, L. [Teller.]

Lucas of Childworth, L.

Strathcona and Mount Royal, L.

Luke, L.

Sudeley, L.

Lyell, L.

Suffolk and Berkshire, E.

McColl of Dulwich, L.

Swinfen, L.

MacFarlane of Bearsden, L.

Taylor of Warwick, L.

Teviot, L.

Mackay of Ardbrecknish, L.

Teynham, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Trumpington, B.

Ullswater, V.

Mackay of Drumadoon, L.

Westbury, L.

Marlesford, L.

Wharton, B.

Massereene and Ferrard, V.

Whitelaw, V.

Merrivale, L.

Wilcox, B.

Mersey, V.

Wise, L.

Miller of Hendon, B.

Wynford, L.

Mottistone, L.

Young, B.

NOT-CONTENTS

Addington, L.

Hylton-Foster, B.

Alderdice, L.

Jay of Paddington, B.

Beaumont of Whitley, L.

Jeger, B.

Berkeley, L.

Jenkins of Hillhead, L.

Borrie, L.

Jenkins of Putney, L.

Brooks of Tremorfa, L.

Kilbracken, L.

Calverley, L.

Kirkhill, L.

Carlisle, E.

Longford, E.

Clinton-Davis, L.

McIntosh of Haringey, L.

Cocks of Hartcliffe, L.

McNally, L.

Desai, L.

Mar and Kellie, E.

Donaldson of Kingsbridge, L.

Milner of Leeds, L.

Dormand of Easington, L.

Morris of Castle Morris, L.

Dubs, L.

Oliver of Aylmerton, L.

Eatwell, L.

Peston, L.

Elis-Thomas, L.

Ponsonby of Shulbrede, L.

Fitt, L.

Geraint, L.

Prys-Davies, L.

Gladwin of Clee, L. [Teller.].

Richard, L.

Gould of Pottemewton, B.

Rodgers of Quarry Bank, L.

Graham of Edmonton, L.

Russell, E.

Grenfell, L.

Stallard, L.

Grey, E.

Symons of Vernham Dean, B.

Harris of Greenwich, L.

Tenby, V.

Haskel, L.

Thomas of Gresford, L. [Teller.]

Hollis of Heigham, B.

Thomson of Monifieth, L.

Hughes, L.

Turner of Camden, B.

Hutchinson of Lullington, L.

White, B.

Hylton, L.

Williams of Elvel, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.29 p.m.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 102A:
Before Clause 37, insert the following new clause—
LENGTH OE CUSTODIAL SENTENCES
(" . After subsection (2A) of section 3 of the Criminal Justice Act 1991 there shall be inserted the following subsection—
"(2B) A court shall not form such an opinion as is mentioned in subsection (2) above or subsection (4A) below unless it is of the opinion that the sentence or sentences which it will pass (including the length of any custodial sentence) will he the same whatever the content of any pre-sentence report.".").
The noble Lord said: I move this amendment on behalf of my noble friend Lord Thomas of Gresford. He will now speak to it.
Lord Thomas of Gresford: The wording of the new clause is somewhat obscure because it refers to amendments to the Criminal Justice Act 1991. It proposes that a court may dispense with a pre-sentence report before passing a custodial sentence only if its sentence, including the length of any custodial sentence, would be the same whatever the content of that report might be.
There may be a number of circumstances where a court might conclude that a pre-sentence report would not alter its sentence; for example, where the offender is already serving a prison sentence and the court's intended sentence would not increase the length of time the offender will spend in prison; where the sentence that is envisaged falls at the lower end of the range of sentences which are possible for the offence within guidelines laid by the Court of Appeal; or where the offender has been remanded in custody and the short custodial sentence that the court considers appropriate would result in immediate release. That is a means of disposal which very frequently happens after a defendant has been held on remand for a considerable period of time.
In all other cases it will be necessary for the court to obtain a pre-sentence report which could make a difference to the sentence. I have already indicated the nature of the information that would be contained in such a report about the personal circumstances of the offender and it is right that in every case the sentencer should have that before him. In its absence it is possible that the court will impose a sentence which might be a great deal harsher than is justified in all the circumstances or, alternatively, the mistake may be in the opposite direction because, without the assistance of a report, the judge might pass a sentence which is too short to protect the public. For all those reasons the amendment is put forward to ensure that, save in exceptional circumstances, the sentencer will have a pre-sentence report before him. I beg to move.
Baroness Blatch: This amendment would not merely amend the Criminal Justice and Public Order Act 1994,
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which was of itself an amendment to the 1991 Act, but would abolish it completely and we would revert to the provision in the 1991 Act. The reason is that it would be impossible to know what would have been in a pre-sentence report, unless the court commissioned it and saw it. This amendment effectively removes the discretion to dispense with such a report provided by the 1994 Act.
We do not believe that this amendment is either practical or desirable. Requiring the court to be satisfied that any pre-sentence report could not in any measure or circumstances affect its decision as to sentence, is an impossibly high threshhold to meet. One can never totally rule out the theoretical possibility that the content of a report might have some impact on the outcome, however small. The effect would therefore be that the court would be required to obtain and consider a pre-sentence report in every case. That would effectively reverse the discretion given to the courts in this matter in the Criminal Justice and Public Order Act 1994. Our reason for giving the courts discretion at the time was that the previous arrangements were wholly inflexible, and imposed unnecessary fetters on the courts and unnecessary costs for the criminal justice system as a whole. These changes took account both of the views of judges and magistrates, and of the results of a review into the way the previous arrangements worked undertaken by Her Majesty's Inspectorate of Probation. We would not wish to reverse these changes. Research evidence shows that the courts are using this discretion wisely and we see no reason to alter the position.
I can appreciate the sentiment behind the noble Lord's amendment that the decision to sentence a person to custody and for how long should be carefully weighed. The courts are already required to take account of a number of factors in taking that decision. However, it does not necessarily follow that a pre-sentence report will help in that decision. The primary purpose of a report is to help the court to consider matters such as the suitability of a community sentence, the need to protect the public from further offending and the seriousness of the offence. A court that decides that a pre-sentence report is unnecessary will have made that decision on the basis that the probation service is unlikely to be able to offer anything further that could influence the outcome. Given the practical choices that have to be made in a limited time, the sentencing process has to be constructed on the basis of judgments as to likelihood of relevance. While there is always a slight possibility that further information could be provided, which might make some difference in some cases, this is not a reason to take away the court's discretion.
The defence will of course have the opportunity to put facts before the court relevant to sentence and, if necessary, ask the court to consider requesting a pre-sentence report. And if the defence believes that a sentence is too harsh, it can appeal against it. For those reasons, I hope that the noble Lord, Lord Thomas, will not press his amendment.
Lord Carlisle of Bucklow: Perhaps I may briefly support my noble friend on this matter and say to the noble Lord, Lord Thomas of Gresford, that surely this

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amendment is going back to the 1991 situation. Would he not agree that, particularly in the Crown Court, one of the problems of delay was the need always to obtain pre-sentence reports? I believe that amendment to the 1994 Act led to an improvement. In my experience in the courts it has meant that if the defence want a report I have never known a judge to refuse such a request and he will adjourn the case for that purpose. If the judge feels that a pre-sentence report is necessary he can get one himself.
However, if it is apparent that, because of the nature of the offence, after the trial there will inevitably be a custodial sentence and the defence, recognising that, do not ask for a report, surely it is in everyone's interest that the man should be sentenced straightaway rather than the case having to be adjourned for a pre-sentence report. It seems to me that the words of the amendment will mean that there should be a report in every case. Since one could not be absolutely 100 per cent. sure what was in the report, the court would be bound to ask for one.
The other point I raise is purely one of practicality and it is an important one. The noble Lord, Lord Thomas of Gresford, and myself both sit as part-time judges in the Crown Court from time to time. One knows of situations where, having listened to a trial, and having come to the end of the judge's two-week sitting, suddenly, although the defence is not asking for a report, under the 1991 Act one had to put the case over to obtain one. That meant that the case had to be fixed for a day when the noble Lord, Lord Thomas or myself, or whoever the Recorder was, was available to come back to that town, resulting in considerable delay, additional expense and very little advantage. I say to the noble Lord, Lord Thomas, that I draw a different conclusion from the one he does as regards the present situation under the 1994 Act.
Lord Thomas of Gresford: I always pay the highest respect and regard to the views expressed by the noble Lord, Lord Carlisle of Bucklow. All I shall add to what he said is that, in my experience these days, there is a certain resistance and reluctance shown occasionally by judges and Recorders in asking for a report at all or in granting an application for a report. Very frequently queries are raised as to whether that is really necessary. With some humility, sitting as a sentencer, one perhaps gets the bit between the teeth at the end of a trial. It is an advantage, even if one does not think so at the time, to have a pre-sentence report. I am sure the noble Lord, Lord Carlisle, agrees that it is helpful to have time to reflect and to have an independent report from someone who is not part of the defence team who has investigated the circumstances and can give perhaps a range of options, which may be other than those that one has immediately in mind sitting as a sentencer. However, as I say, I always pay great regard to the noble Lord's views and with that in mind I shall not press the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Committals for sentence]:
Viscount Tenby Viscount Tenby moved Amendment No. 103:
Page 27, line 24, leave out ("triable either way").
The noble Viscount said: This is a simple amendment which would be beneficial to the administration of the lower courts and equitable in the execution of justice. To the relief of all, I promise to be brief because the matter is simple.
Clause 37 extends the circumstances in a magistrates' court in which an offender who has been convicted of an either way offence may be committed to Crown Court for sentence. The amendment seeks to include in the package, so to speak, any related summary offences to which the offender has pleaded, or been found to be, guilty. Some of those offences might not in the usual way of things be passed to the Crown Court. I refer, for example, to some motoring offences, such as driving while disqualified or without insurance, which can attract a custodial sentence. Others, such as construction and use offences or not having a vehicle excise licence do not attract such a sentence. No matter, let them be passed up together. This simple proposal will reduce administrative costs and ensure that the offender, having served whatever sentence the Crown Court imposes, will not have to return to a magistrates' court at a later date and have all the related matters brought up again. It will also enable the Crown Court to have a more complete picture when it comes to sentencing.
This is such an unexceptionable and common sense proposal that I can only assume that the drafting team left it out of the final version of the Bill by mischance. Perhaps I may invite the Minister, with her usual robust common sense, to put the matter right. Indeed, to paraphrase her last week, the sky may not fall in if this amendment is agreed to, but I nevertheless fear that counsel will inevitably have something of an uncompromising nature to say on the subject. On this common sense proposal, however, can counsel for once be overruled? I beg to move.
Baroness Seccombe: I have the greatest sympathy with the thrust of this amendment and I am sure that fellow magistrates will have experienced the frustration of having to separate offences before the court, sending the substantive offences to the Crown Court while withholding the more minor ones. It seems to me that if the Crown Court can on one occasion pass sentence for all offences that occurred at the same time, that would lead to a much more just outcome.
The Lord Advocate (Lord Mackay of Drumadoon): I am sorry to have to inform the noble Viscount that my noble friend Lady Blatch and her robust common sense are taking a rest on this amendment. It has been left to me to seek to explain our response to it. The Government certainly share the spirit behind the amendment.
This amendment seeks to extend the application of Clause 37 to all classes of offence, rather than to offences triable either way only. The effect of the clause as it stands is to extend the circumstances in which a magistrates' court may commit a person convicted of a triable either way offence to the Crown Court for sentence. If he pleads guilty in a magistrates' court, and is convicted, and if he is also being committed for trial

1315
for a related offence or offences, he may be committed to the Crown Court for sentence in relation to the offence of which he has already been convicted.
The effect of the amendment would be to widen magistrates' existing powers to commit for sentence in respect of any offence in cases where there are related offences that are to be dealt with by the Crown Court. We share the concern that, where appropriate, sentencing for related offences, of whatever class, should not be split between the courts. However, the view of the parliamentary draftsman is that the necessary powers already exist to enable this to take place.
I shall now seek to explain why that is and why there is at least one technical objection to the amendment. However, in view of the fact that this is a matter of practical importance, I shall certainly reflect further on what the noble Viscount has said.
Clause 37 as currently drafted is not concerned with the general powers of a magistrates' court. It is included in the Bill to remedy a specific practical difficulty which may arise when Section 49 of the Criminal Procedure and Investigations Act 1996 is implemented—
Lord McIntosh of Haringey: Aha!
Lord Mackay of Drumadoon: I am glad to hear that I have woken up the noble Lord, Lord McIntosh—
Lord McIntosh of Haringey: I was already awake.
5.45 p.m.
Lord Mackay of Drumadoon: That provision invites defendants charged with offences triable either way to indicate their plea before the mode of trial decision is taken. A magistrates' court must then either sentence or commit for sentence any defendant who indicates a guilty plea. This procedure enables those wishing to plead guilty to do so at the earliest opportunity and to be dealt with by the magistrates' court rather than be committed for trial to the Crown Court. Research has shown that many defendants so committed would have been willing to be dealt with finally by the magistrates' court. The effect of the provision, when implemented, will be to spare victims, witnesses and defendants the further delay of awaiting a Crown Court trial, and to retain appropriate business in the magistrates' court and thereby save the expense of remitting the matter to the Crown Court.
However, the provisions in the 1996 Act do not take into account any other offences with which a defendant might have been charged and on which he is anyway to be tried at the Crown Court. In certain circumstances, that might lead to the undesirable outcome that he would have to be sentenced by different tribunals at different times. Sentencing anomalies would be inevitable, resulting on the one hand in potential unfairness to the defendant and the possibility of appeal and on the other to the imposition of a sentence in the Crown Court which could well be too lenient.
As I have said, the purpose of Clause 37 is to seek to remedy that potential difficulty. As I have also said, it is believed that there are already sufficient general
1316
powers to enable the Crown Court to deal with all matters outstanding against an offender, including summary offences. Section 56 of the Criminal Justice Act 1967, as amended, allows the magistrates' court to commit an offender for sentence to the Crown Court for certain summary offences if the court is also committing him for sentence under other enactments, which will include Section 38A of the Magistrates' Courts Act 1980, as it will be inserted by Clause 37. In addition, Section 40 of the Criminal Justice Act 1988 enables counts for certain summary offences to be included in an indictment where they are related to an indictable offence for which the accused has been committed for trial. In such cases, the defendant will be tried at the Crown Court for both offences. Section 41 of the 1988 Act enables a magistrates' court, when committing a defendant for trial on a charge for an offence triable either way, to commit him to the Crown Court for any associated summary offence provided that such offence is punishable with imprisonment or carries disqualification.
The advice of counsel is that these existing general powers ensure that, where appropriate, the Crown Court can deal with all matters outstanding against an offender at the same time. As I said earlier, however, I shall reflect carefully on all the points made by the noble Viscount.
In conclusion, perhaps I may draw to the noble Viscount's attention the technical problem with his amendment as currently drafted. It arises because, as I have explained, Clause 37 as drafted is designed to remedy a specific difficulty with the existing plea before venue provision. That requires that two other conditions must also be satisfied for the provisions to apply. They will be met only where the magistrates' court has proceeded under Section 17A or Section 17B of the Magistrates' Courts Act 1980, these having been inserted into the 1980 Act by Section 49 of the Criminal Procedure and Investigations Act 1996. Sections 17A and 17B apply only to offences triable either way. That is why this technical problem has arisen. However, that is not why I oppose the amendment. I do so because it is believed to be unnecessary. With that assurance and with the undertaking that I have given, I hope that the noble Viscount will beg leave to withdraw his amendment.
Lord McIntosh of Haringey: I said "Aha!", not because I had been asleep—I had been fanatically attentive to the words of the noble and learned Lord the Lord Advocate—but because when he spoke of Section 49 of the Criminal Procedure and Investigations Act I was drawn back to the short debate on the Statement on the review of delay in the criminal justice system. He will recall that the proposals in the review which were referred to by the noble and learned Lord the Lord Chancellor were in conflict with the undertaking given by the Government that they would not make changes to the election for trial by jury until they had completed their review of Section 49—the plea before venue clause—of the criminal procedure and investigations Act. I reminded the noble and learned Lord the Lord Chancellor, as I now remind the noble and learned Lord

1317
the Lord Advocate, that Section 49 had not yet been brought into effect. It seems to me that in these matters the Government in their haste to show activity are tripping over their own feet.
Lord Mackay of Drumadoon: As a Scots lawyer who has been brought up in a jurisdiction that has never had the right to elect for jury trial and, to my knowledge, has never been criticised for its failure to do so, I am tempted to intervene in the discussion. Although the noble Lord now provides me with the opportunity to do so, I will resist the temptation for the moment. I take note of what the noble Lord has said about the position as explained by my noble and learned friend the Lord Chancellor. Nothing that I have said in explaining to the noble Viscount Lord Tenby why his amendment is unnecessary in any way conflicts with the Statement of my noble and learned friend the Lord Chancellor earlier today. However, as I am in a very accommodating mood, I shall draw the noble Lord's comments to the attention of my noble and learned friend.
Viscount Tenby: I shall strike while the iron is hot! I am grateful for the exchange of the robust common sense of the noble Baroness for the Scottish warmth of the noble and learned Lord the Lord Advocate. I understood him to say that these powers already existed; for example, in Section 56. I hope that the forces of obfuscation have not triumphed yet again. I am encouraged by his kindness in saying that he will look at this matter. Accordingly, I will retire to a very quiet place with six tonnes of ice and, I hope, the advice of numerous people and reserve the right to come back to this matter perhaps at a later date. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
Clauses 38 and 39 agreed to.
Clause 40 [Curfew orders]:
On Question, Whether Clause 40 shall stand part of the Bill?
The Earl of Mar and Kellie: I am not keen on the inclusion in the Bill of Clause 40. The extension of curfew orders to children under 16 leaves a lot of questions unanswered. While I see the desirability of a curfew being imposed on youngsters who have committed many very annoying offences, I am still unsure and unconvinced about the efficiency of using electronic and remote monitoring for children on a stand-alone basis. If the monitoring is being done by a human monitor, perhaps in conjunction with an electronic tag, possibly there is some good in it, but I do not believe that the human monitoring element will be there. I assert that everything done with children must be backed up with human guidance. The Committee does not need to be told about the state of flux and disorganisation in which many young offenders tend to live.
My other concern is about the process of tagging and its effect on the usually low self-esteem of the young offender. I start from the basis that low self-esteem
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allows the young person to do bad things to others because the young offender already feels bad about himself or herself. In his or her eyes there is no reputation to defend. The social work task is to build up self-esteem so that the young offender does not want to lose his or her reputation, and hence does not want to do bad things to others. The presence of an electronic tag has all the marks of permanence and confirmation of outlaw status or a new offender identity. This argument concedes that electronic tags on a stand-alone basis could be used on high self-esteem individuals who would be ashamed of having to wear them and therefore would be reasonably happy to comply with a curfew. However, high self-esteem offenders are few and far between. For this reason, I oppose Clause 40.
Lord McIntosh of Haringey: As the Government know, I have not been as resistant to electronic tagging as some other noble Lords. My worries about electronic tagging for adults have been restricted largely to my concern about the cavalier attitude of the Government to the research that they themselves have commissioned into the effects of electronic tagging and their willingness to commit themselves to legislation before the results of that research are available. But my acceptance of electronic tagging for adults under certain circumstances arises from an overriding desire to have as wide a range of alternatives to prison as possible.
I am bound to say that I do not believe that that can be extended to children as is proposed here. I am sure that the noble Earl is right that the low self-esteem of offenders under the age of 16 would be enormously reduced if they had to carry electronic tags. For example, what would be the position of a girl whose school uniform required her to wear a skirt rather than trousers so therefore the tag was visible to everyone? What would be the position of a child who had to wear an electronic tag at school and participate in games and physical education? The mind boggles at the degree of humiliation to which children may be subjected by their fellows if they were carrying electronic tags. I cannot see the justification for it, particularly as the research evidence even in relation to adults is not yet available.
Earl Russell: My noble friend Lord Mar and Kellie has referred to cases where the young person feels a sense of disgrace and low self-esteem as a result of wearing a tag. Those cases happen. But the problem may be even worse if they do not. It is not only the noble Baroness who travels on buses. A couple of weeks ago I opened my local paper and read a letter from our PPC for the Regents Park constituency. She described an occasion when she was travelling on a bus and found two rather violently-spoken young men next to her. They were exchanging boasts about the gravity of their crimes and the severity of the sentences that they had earned. The more severe the sentence, the greater the prestige. Some cases will fit my noble friend's description; others will fit this. In either case I do not see that anything is gained.
I very much share the concern of the noble Lord, Lord McIntosh of Haringey, about the indifference of the Home Office to research. It was only one week ago

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today that the Home Secretary commissioned extended trials—an extension of pre-existing trials—of the procedure for tagging. He might have waited for that. The Home Secretary's attitude to research increasingly reminds me of Sydney Smith's attitude to reviewing. He said that he never read a book before reviewing it because it prejudiced a man so.
I have here the report on the first instalment of those trials entitled Curfew orders with electronic monitoring (Home Office Research Study 163). To give it the most favourable gloss possible, it is not an entirely conclusive report. It also leads me to think again about the point made by my noble friend about the difficulty of using tagging as an exclusive way of dealing with the situation.
The economies proposed for tagging of course depend quite heavily on the idea that it can be used exclusively. I quote here from page 31 of the Home Office research report which states:
"The staff were keen on their work and took pride in it. They were rather surprised at the amount and type of help they had to give to offenders at times which had nothing to do with electronic monitoring itself; this was a probation service task as they saw it, but if no probation order was made alongside the curfew order probation officers had nothing to do with it".
That seems to suggest that if tagging was going to work it would work in conjunction with probation. That may be worth further thought, but it rather gets rid of the argument of immediate economy.
The argument of costs, too, should be causing us some concern. The average cost per type of order is probation orders £2,425, community service orders £1,773 and tagging orders £2,295. That of course is all right if you consider it per order, but the trouble is that you cannot do it that way because courts are imposing so few tagging orders.
We seem to have a problem here, as we have had in earlier stages of the Bill, of courts being asked to impose orders which they do not want to impose. That is part of a much wider problem in the relationship between the Government and all the professions—the Government wishing to get everyone to exercise their professional judgment as the Government wish. It is not that simple.
Of course, if courts are not going to impose tagging orders in large numbers, then their alleged virtues will be very much diminished. The more I listen to any debate on tagging, the more I am struck by the fact that everyone who does not know anything about it is strongly enthusiastic about it and, with the single exception of the Home Office, everyone who does know anything about it is extremely doubtful. This may be an idea which has something to show us in future, but I do not believe that its time has yet come.
6 p.m.
Baroness Blatch: The point the noble Earl made about young people boasting about their crime and the severity of the punishment made me wonder what
1320
message he intended to give. It seemed to me that it was a case for the admonition: no punishment on low punishment.
Lord McIntosh of Haringey: Perhaps I may suggest an answer to that, if the noble Earl, Lord Russell, will allow me. If they are boasting about their crime, are they not going to boast about their electronic tags as well?
Baroness Blatch: They may well boast about their electronic tags, but what they may not boast about is the hours that they will have their liberty restricted from going about their wrongdoing in the evenings or playing with their friends. It is the period of restriction that is the punishment. That is the whole purpose of the curfew order. There are many young people on our streets out of control. Not only do I believe that it will be helpful to keep them in one place at one time; it helps also with some adjustment in the family. There are some parents who will be jolly relieved to know where their children are, even if it is an enforced period, because there are some parents who just put up their hands and say, "I just can't control him or her". I believe that this will be a pilot scheme worth piloting for that alone.
Earl Russell: Perhaps I may interrupt the Minister. I think this underlines the point made earlier by my noble friend Lord Thomas of Gresford about the need to restore confidence in the criminal justice system. There is a lot of truth in the remark made by the first Earl of Strafford:
"A prince that loses the force and example of his punishment, loses with all the greatest part of his dominion".
Baroness Blatch: The point I am making almost makes the point that the noble Earl is just trying to make: the young people riding on buses and out in the streets among the public boasting about their crime and their punishment will not be boasting so much when they are tethered at home and curfewed at home by electronic tagging. It will at least ensure a period, determined by the courts, when they will need to be at home and not out on the streets boasting to anyone. It is that punishment that I hope the Committee will agree is at least worth trying in the pilot schemes.
The noble Earl made another point about reading the report. He referred to it as not being conclusive. It is not conclusive because the pilot scheme has not yet been concluded.
Lord McIntosh of Haringey: Exactly!
Baroness Blatch: Not only is it not conclusive, that report refers to the early part of the pilot. It is well advanced now. I believe that the subsequent report will be positive. There are many positive parts of that report, too.
The measures in the clause will operate initially on a trial basis. For instance, in our existing curfew pilot areas—greater Manchester, Norfolk and Berkshire—the present pilot schemes for offenders aged 16 and over which have been operating there are working extremely well. The research report which we published on

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30th December shows that curfew orders are becoming very effective. The research found that the tagging equipment consistently performed effectively and that 75 per cent. of offenders were tagged successfully. Tagging therefore looks likely to compare well with other community sentences in terms of completion and cost.
We now believe that there is also a role for curfew orders for young offenders enforced through electronic monitoring. They will be a means of keeping them at home, off the streets and away from shopping centres, clubs and other places where they may get into trouble. By keeping young people out of harm's way we believe that the curfew order should be able to help prevent young offenders from re-offending and help protect the public.
That links in with the point that the noble Earl made. It is about restoring public confidence in the judicial system, which is at a very low ebb at the moment. Young people are seen hanging around shopping centres and street corners. I am reminded of the words of my right honourable friend John Patten when he was Secretary of State for Education. He talked about street corner to prison cell—that awful downward cycle, when there is no early intervention with children. This is at least one opportunity to bring family and child together, enforced though that may be. There may well be positive aspects of that. We would at least like to see whether it will work.
Courts already have a power to impose a night restriction order on a young offender as part of a supervision order—the point made by the noble Earl, Lord Mar and Kellie—but those night restriction orders are more limited in scope than the curfew order. They can be imposed only as part of a supervision order and can operate only during the evening and the night. What is more, they are difficult to enforce. A curfew order is more flexible. Because it is monitored electronically, it is properly and strictly enforced. Its virtue so far has been that any movement of the individual who is subject to electronic tagging outside of the area is detected immediately and dealt with.
That is what gives the courts confidence that the order that they will make will be carried out. The curfew order will apply in the same way as it does for offenders over 16, but with modifications to reflect the younger age of the offenders. First, the order will be for a maximum length of three months and not six months; secondly, we have provided that in the case of offenders under the age of 16 one of the penalties for a breach should be an attendance centre order, which again I believe will answer one of the noble Earl's concerns which is one which I share—I believe that human contact is an important part of this.
Under existing powers, the courts may deal with the breach of curfew order by re-sentencing the offender for the original offence or varying or continuing the order and imposing a fine or community service order. As a community service order is available for those 16 and over only, we have filled that gap by giving courts the power to impose an attendance centre order on breach where the offender is under 16.
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Thirdly, as with the proposals for community sentences in the Bill, there will be no need for the offender to consent to the order. However, we will require the courts to obtain and to consider, before making a curfew order, information about the family circumstances and the effect that it will have on the family. That procedure should enable the courts to apply the new order appropriately. As with older offenders, a curfew order will be available for any offence as well as on breach of a release supervision order, as provided for in Clause 14.
I was asked whether or not it is irresponsible to extend tagging to juveniles before the trials finish in March next year and before the scheme is fully assessed. We do not believe that it is. I need to make the powers available to the courts so that pilot trials running in parallel with the main trials can take place. Given that they will be pilot schemes, decisions will not be taken about whether to make the sentence available nationally until there has been a fuller evaluation of the effectiveness and value for money of electronically monitored curfew orders. However, we need to have the powers in place if we are to be in a position to obtain the necessary information from appropriate pilot schemes. The noble Earl, Lord Mar, referred to the report that is already in the public domain.
I was also asked whether or not the tag will be worn as a badge of honour. Again, there will always be some young offenders who see a trip to court as something to boast about. However, that is not a reason for refusing to proceed with any action. Even if some young offenders wear their tags with pride they will still have to comply with the curfew orders imposed on them. What is important is the restriction of their liberty not to roam the streets and not to hang around the areas where they have been getting up to no good. We believe that the scheme is at least worth trying.
The night restriction order can be imposed as a condition of a supervision order, which is a longstanding provision. A night restriction order cannot be combined with electronic monitoring. A curfew order is separate from a supervision order, but the court can impose both a curfew and a supervision order. It must be for the court to determine which is appropriate. If the court regards close supervision as important it can impose such an order to run in conjunction with a curfew order. I share the point which the noble Earl made and I believe that we have covered it for the purpose of the pilot scheme.
Lord McIntosh of Haringey: Again, the Minister prays in aid the research which she acknowledges is incomplete, but she does not answer my question about how such schemes can be applied to school children. Do the trials show that any school children aged 16 or over have been sentenced to curfew orders? Do the trials show experience of older schoolchildren being given curfew sentences and the effect of those? I should have thought that that was at least relevant.
Baroness Blatch: I shall write to the noble Lord giving the statistics of all those who have been electronically tagged showing their ages, the sentences and the successful completion. However, perhaps I may

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apologise to him because I did not answer his concern about the visibility of the tag on young children. It is fair to say that for every-day wear the tag can be easily secreted. I have seen both tags which operate in the scheme in Manchester, which was repeated in Berkshire, and the scheme in Norfolk. Those tags can be easily secreted either under the sleeve or under the sock, and socks are worn by most school children.
The noble Lord is right in saying that if children were doing PE, or an activity for which they would strip away socks and/or sleeves, the tags would indeed be visible. We must judge the effect of that under the pilot scheme. However, we are talking about young people who have offended. They have come before the courts, been convicted and the courts believed that a curfew order was an appropriate sentence. The noble Earl has already given the Committee evidence of the fact that they are young people who go about boasting of their wrongdoing and of their sentences. Only recently I heard of a young person boasting to all his friends in school about his own personal social worker. That will continue for a long time, but some young people will not want to be seen with a tag. Those who appear before the courts and who must wear them may have a deterrent effect on those who do not want to wear them.
Lord McIntosh of Haringey: That means that it is an extra, more severe punishment for those children than it is for adults who can successfully conceal their tags.
Baroness Blatch: The full impact of a sentence will be a matter for consideration by the courts. Any magistrate awarding a penalty to an offender before him will think through the impact of that and will make a judgment about the degree to which it is a punishment that fits the crime.
6.15 p.m.
Baroness Carnegy of Lour: My noble friend mentioned the fact that the court must consider how the home will be affected and what the reaction will be of the family of the child being curfewed in the home. Can she assure the Committee about the thoroughness with which that will be evaluated in the pilot schemes? How will it be done? Perhaps a variety of ways can be examined.
It is of the greatest importance that the family life should not create a worse situation for the child. That has been drawn to my attention in relation to the Scottish Bill. It should not be imposed if the family life will be wrecked by the fact that the child is forced to be at home for many hours over a period of three months, which is a long time in the life of a young child.
Baroness Blatch: My noble friend raises a very important point. I can give her an absolute assurance that those very aspects of the penalty will be evaluated. In view of my noble friend's concern about young people, I wish to mention another point with which she might agree. In addition to the penalty being effective, I believe that we should look to see whether it has a
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positive as opposed to a negative effect on a family. The point made by my noble friend will certainly be taken into account in evaluating the pilot scheme.
Earl Russell: I listened to the Minister with a great deal of interest on the need to restore respect for the criminal justice system. She made many good points, but does she see any merit in the view that we can do more good for this problem by the example we set than by any legislation we pass in the Bill?
Sadly, our own reputation, our own legitimacy, rightly or wrongly—and I believe often wrongly—is rather low. Until we can put that right, is there any use in imposing more draconian punishments? Should we not be concerned with restoring our own sense of legitimacy? Would not that perhaps do rather more good?
Baroness Blatch: I am obviously missing a point. I am not aware of our illegitimacy. I am not aware of what the noble Earl means by not attending to our own legitimacy. He cannot be unaware of the public anxiety about too many young people who are not at home in the evenings, who are out after school, who are hanging around places where they ought not to be, who are indulging in behaviour which is socially very unacceptable, and who are sometimes breaking the law.
That is most disturbing and we are all concerned about it. A great deal is being done about early intervention, but where that has failed and young people begin to behave criminally we are evaluating ways of coping with that. We believe that this is one way of coping with it and that the pilot scheme is worthwhile. The public have expressed that anxiety very volubly. We are responding to that and believe that confidence will be restored. However, I do not know what the noble Earl means about our illegitimacy.
Earl Russell: I am sorry that I did not explain myself. We have a large body of evidence which shows that respect for politics as a profession—that is what I meant when I referred to us—has fallen lower than it has ever been since opinion surveys began. We have fallen below everybody except journalists. If the public believe, often wrongly, that we are all on the fiddle it is very hard to stop them being on the fiddle.
The noble Baroness may know St. Augustine's story of Alexander the Great and the pirate. The pirate caused great damage around the Eastern Mediterranean and was arrested by Alexander, who was about to execute him, when the pirate said, "Because you do it with a great army and a great fleet, you are called a great emperor. Because I do it with one ship, I am called a contemptible pirate". It is that reaction that we are getting from the public. It worries me very deeply and I do not see that this Bill goes anywhere near addressing the problem.
Baroness Blatch: In a few weeks' time, I shall have been in this House for 10 years. Throughout that time, there has not been a day when I have not been deeply impressed by the way in which this House sets about its business; the seriousness with which it takes all the work that comes before it; and the thoroughness of the

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work done in this House. I believe that the proof of the pudding is how we perform in this House. I cannot possibly agree with some of the things that the noble Earl said.
I am not accounting for other people. I am accounting for this House and the way that it does its business. I believe that the matter before us is important. It has been properly discussed and I hope now that the Committee will accept that the clause shall stand part of the Bill.
Earl Russell: Perhaps I may very briefly clear my own honour. I do not disagree with anything that the noble Baroness said about this House; I think she knows that I do not disagree with her. But that is not the way that we are perceived outside and I do not believe that the noble Baroness disagrees with that either.
The Earl of Mar and Kellie: First, the story that my noble friend told us about people boasting on top of the bus shows that there is a certain point in any offender's life when he is so basking in his outlaw status that no amount of encouragement will make him alter his ways. Clearly, we must intervene at the point at which the offender is beginning to doubt the wisdom of his outlaw status.
Here we are considering a form of house arrest which I contend should be backed up by human monitoring. However, it is proposed that the monitoring should be done electronically, remotely and without any social work contact and that the monitoring should be done on a stand-alone basis. I am not happy about that. I am very worried about the exemplary justice aspect of it; that is, the so-called deterrent effect of seeing someone else wearing a tag. We do not normally use exemplary justice as a part of the criminal justice system. It is more a characteristic of military justice.
I am unconvinced by this proposal. However, I recognise that we have debated the matter quite thoroughly. I am still not convinced about this clause, but I shall withdraw my opposition to it.
Clause 40 agreed to.
Clause 41 agreed to.
Clause 42 [Publication of reports]:
On Question, Whether Clause 42 shall stand part of the Bill?
The Earl of Mar and Kellie: I turn now to Clause 42 which, once again, I do not believe should stand part of the Bill. The clause deals with the publication of reports and the giving of names of those under the age of 16.
I see the provisions of this clause as being generally counter-productive to the social work task. Allowing the naming of a child is counter-productive to the task of behaviour modification and reintegration into the community. As I see it, the risk is that the child or young person will bathe in notoriety and enjoy the confirmation of his outlaw status, to which I referred earlier.
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The use of this measure must be the absolute last resort. It would be a deliberate decision to identify a child as an offender beyond redemption and in fact, to leave him at that point.
There may be a small number of children for whom that must be true. But I believe that only very few people are evil; many are extremely misguided. This measure must not be used except in the most extreme cases, as I believe is the practice at present. I hope that the Minister will tell me about the guidance which will be given as regards the use of Clause 42 in an attempt to persuade me that it may be efficient and not counter-productive.
Lord Bingham of Cornhill: Perhaps I may mention a neutral point which has occurred to me while listening to the noble Earl, although I may be quite wrong. I wonder whether the reference should be to Section 49 of the 1933 Act or, as I think it should be, to Section 39.
Baroness Blatch: I shall take advice and return to the noble and learned Lord on that matter.
Under Clause 42, the Youth Court and a court dealing with an appeal from a Youth Court will have a discretion, where a juvenile has been convicted of an offence and where the court judges it to be in the public interest, to dispense with the existing prohibition on identifying juveniles which applies where juveniles are concerned in proceedings before such a court.
Under the existing provisions, the prohibition on the identification of juveniles may be lifted only where either it is appropriate to do so for the purpose of avoiding injustice to the child or young person concerned or where a child or young person charged with or convicted of a serious offence is unlawfully at large, so as to apprehend him.
The existing prohibition on identification reflects the principle that in view of their age and vulnerability, juveniles should be offered greater protection in court. The protection which the existing legislation affords to victims, witnesses or those who are acquitted will rightly remain.
But there is a balance to be struck between protecting the interests and identity of juveniles involved in court proceedings and protecting the public. It is important that members of the public should be protected from young offenders and there are circumstances in which the public has a right to know when those youngsters have been convicted; for example, when they are released back into the community having committed a crime which has had a particular impact on that community. In such cases, public awareness may also help to prevent further offences from being committed.
There may also be instances where it is right that the public should be reassured that an offender has been caught; for example, when he has been responsible for a spate of local crimes. Moreover, the prospect of being identified publicly should prompt many young offenders and their families to think more carefully about their actions.

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Juveniles convicted of serious crimes in the Crown Court can already be identified. It cannot be right that offenders convicted in the Youth Court should automatically have their identity protected. Of course, there is a balance to be struck between protecting the interests of the juvenile offender and protecting the public. For example, the court may consider identification to be inappropriate in the case of a first-time offender convicted of a less serious offence. But the court should be able to decide where the balance lies between the interests of the public and the welfare of the child. This provision, which is permissive, will allow the court to do that.
I understand that the answer to the noble and learned Lord's question is that the reference is correct. Section 39 covers Crown Courts and adult magistrates' courts. Section 49 covers proceedings in Youth Courts.
Lord Bingham of Cornhill: I am sorry. Next time I shall try to verify my references in advance.
The Earl of Mar and Kellie: The noble Baroness has given an explanation. I still feel that children, however much of a nuisance, should not be placed in a situation in which they are beyond redemption. The maintenance of their status as offenders I continue to see as counter-productive. I wonder whether any offender has been helped by being named and by being seen by others as an identified offender. That is particularly true in rural areas. It is probably easier to be reintegrated into an urban social environment than it is in a rural area.
I believe that it conflicts with the welfare principle with which we normally approach young offenders. However, we have had a wee debate about this matter and I shall not oppose the inclusion of the clause at this stage.
Clause 42 agreed to.
6.30 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 104:
After Clause 42, insert the following new clause—
ENDING OF REMAND OF JUVENILES TO ADULT PRISONS
(" . The Secretary of State shall lay before Parliament within three months of the passing of this Act a report containing an assessment of progress towards the implementation of sections 60 and 61 of the Criminal Justice Act 1991 and specifying the day which he will appoint for the coming into force of those sections.").
The noble Lord said: The purpose of the amendment is to force the Government to do something about their intention, which has been expressed for a number of years, to keep juveniles on remand out of prison. I believe that we have all been in agreement on that objective; but, if we look back at the history, it is a sorry story of delay and one which ought no longer to be accepted. When I say that we have all been agreed about it, the Minister herself said in the debate on 10th January last year:
"We are committed also to ending the remand of juveniles to prison custody once sufficient local authority secure accommodation is available"—[Official Report, 10/1/96: col. 215.]
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That might be thought to be a restriction on the Minister's intention but, at the same time, and subsequently when we talked, for example, about secure training centres, the Government have boasted about the way in which additional local authority secure accommodation has indeed been provided and the extent to which the additional 100 places, which were required by the provisions of the Criminal Justice Act 1991, have been achieved.
As I said, this is a sorry history but there has been some progress. Between 1976 and 1981 we progressively excluded all girls under the age of 17 from custody of the Prison Service and we excluded 14 year-old boys from such custody in 1981. We have indeed made some progress in that time as regards the number of boys aged 15 and 16. The number of unsentenced juveniles entering prisons and remand centres fell from 4,812 in 1976 to 1,098 in 1992. The trouble is that that has gone up again and the most recent figure that I have is for 1995 when there were 1,899. This is true not only of that measure but also of the daily population of juveniles in Prison Service custody: the figure was 54 in 1992 but 319 at the latest count in 1997. To make it worse, the average number of days served by juveniles on remand in Prison Service custody increased from 36 in 1992 to 46 in 1997. Those are very disturbing figures.
We can all remember the public debate that took place at the time of the Criminal Justice Act 1991 when, I believe, many people were shocked by the suicide of a 15 year-old boy, Philip Knight, who hanged himself while on remand in Swansea prison in July 1990. That is why these provisions were placed in the Criminal Justice Act 1991 and that is why the opinion of the country was so strong that such detention should no longer be allowed.
In a number of annual reports, the then Chief Inspector of Prisons Judge Stephen Tumim pointed out the horrific effect of young boys of 15 and 16 being in the same prisons and remand centres as young men of 17 to 20. If ever there was a case for the opportunity for corruption and for becoming a university of crime, that is indeed what we have. Whether remand juveniles are held in local prisons or in remand centres, the inspections of those individual prisons and centres have produced very severe criticisms from the chief inspector of prisons.
In the report on Hull Prison of July 1995, Judge Tumim again made a recommendation that juveniles should be removed as soon as possible from that prison. That was the view of the governor, the board of visitors and the director of social services. The inspectorate said that the youngsters,
"were held together on a landing in a Victorian prison … This is totally unacceptable. We were appalled at the Dickensian picture of children in a Victorian prison who were there because of lack of provision in the community".
That is simply no longer acceptable in 1997
The amendment would require the Secretary of State to lay before Parliament within three months of the passing of this Act a report containing an assessment of progress—let us hope that it is not as gloomy as the assessment that I have just given the Committee—and

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specifying the day which he will appoint for the coming into force of the relevant sections of the 1991 Act. I beg to move.
Lord Hylton: I should like to support the amendment. In moving the amendment, the noble Lord, Lord McIntosh, did not mention the disruptive effect on the education of these young people while on remand in adult prisons.
Earl Russell: I also took part in the debate on the imprisonment of young offenders on 10th January 1996, as indeed did the Minister. I have just been checking through Hansard to ascertain what the noble Baroness actually said in that debate. She said:
"We"—
that is, the Government—
"are committed also to ending the remand of juveniles to prison custody once sufficient local authority secure accommodation is available"—[Official Report, 10/1/96; col. 215.]
Well, it does not seem to be so as yet. As I understand it, the numbers are actually increasing. The report from the Howard League that we debated on that occasion gave an extremely disturbing picture of what was going on. In fact, it cast a great deal of doubt on the claim that prison reduces crime because the amount of crime that is taking place inside prisons is so immense. For example, we find cases like a prisoner who was found in Doncaster prison wearing only a towel because all of his clothes had been "taxed" off him.
The problem at that prison seems very largely to be one of overcrowding. The numbers of staff are simply not sufficient to supervise the number of people who are in the gaol. Until we can put people into what can properly be described as "safe custody", I think that we should be careful about increasing the prison population. Where we have young offenders in adult institutions, that sort of trouble seems to arise with quite alarming frequency. The Minister has said that the Government mean to do something about it: I do wish that they would get on with it.
Baroness Blatch: I should be most grateful if the noble Earl would kindly complete the overcrowding details of Doncaster prison. My information is that that prison is not overcrowded. Therefore, I am slightly alarmed at the story that he has just given us. However, if the picture that he has just outlined is a true one, I share the noble Earl's horror. Of course that is very much a management issue for the prison. Nevertheless, I should like to look into the specific case raised by the noble Earl. I should certainly be interested to know his source for the cause being one of overcrowding.
The Criminal Justice Act 1991 makes the necessary provision for replacing prison remands for 15 and 16 year-old boys with court-ordered remands to local authority accommodation with a security requirement. It also provides for the court to direct that 15 and 16 year-old girls be held in secure local authority accommodation. Such secure remands would be subject to strict criteria so as to ensure that they are only used in appropriate cases where it is important to protect the
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public from such juveniles. But that can only realistically happen when there is enough local authority secure accommodation available to replace the existing prison custody. In addition, the Criminal Justice and Public Order Act 1994 provides for the provision to be widened to include 12 to 14 year-olds.
With that aim, the Government are funding a 170-place expansion programme to provide more accommodation of this sort and, by the end of this building programme, we will have spent over £30 million. The first places came on stream at the end of 1995 and the vast majority should be in place by summer of this year. However, the Government would be failing in their public duty, and in their priority to protect the public, if they ended prison remands without making workable alternatives for the secure containment of such youngsters. As the noble Earl has already said, the fact of the matter is that the number of 15 and 16 year-old remands is increasing—270 15 and 16 year-old boys were remanded to prison custody on 30th June 1996, as compared to 211 on the same date in 1995. The latest figures show around 300 juveniles remanded to prison custody.
We have no single explanation for this increase. It may be that the courts are taking greater account than before of the need to protect the public; it may even be something else, for example, demographic reasons. Decisions about the use of remands to prison custody in individual cases are, of course, matters for the courts. But whatever the reasons for these increases it will be clear to the Committee that careful consideration must be given to the implications of this rising remand population for the implementation of the 1991 Act provisions. I can assure the Committee that we are doing just that, and that it is our intention to report to Parliament at the earliest possible opportunity on the implications for implementation. I believe I now know Members of this Chamber well and I know that they will not be reticent in making sure that pressure is maintained on the Government to give an explanation and progress reports.
The new clause proposed by the noble Lord, Lord McIntosh, would require the Secretary of State to lay before Parliament within three months of this Act being passed a report assessing progress towards implementing Sections 60 and 61 of the 1991 Act, and specifying an implementation day for these provisions. I understand the thinking behind the proposed new clause and its aim and I am sympathetic to that; indeed, I am extremely sympathetic. I know that there is a good deal of interest in these provisions within this Chamber and in another place. It is right that there should be. It is also right that Parliament should be informed of progress in moving towards implementation. However, I do not think that the new clause as proposed is either necessary or desirable. Certainly the achievement of the policy aim is desirable.
The amendment is technically flawed and on that ground alone it is difficult to invite the Committee to accept it today. The two sections to which the new clause refers are already in force, but as modified by Section 62 of the 1991 Act. Section 62 has the effect of preserving the use of prison remands for 15 and

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16 year-old boys until such time as an order made under Section 62(1) of the 1991 Act is laid. It does not therefore make sense to require a report on progress in implementing Sections 60 and 61.
What is more important, I believe that it would be quite wrong to include a provision in this Bill at this time which would in effect place a statutory requirement on a government of whatever complexion to provide Parliament with a report on progress and a specific implementation date for these provisions within what would be the first few weeks of a new Parliament. I remind the Committee that it would occur about six weeks after the new Parliament assembled, because if nothing untoward prevents this Bill from receiving Royal Assent that will occur during the month of March. Therefore, if one accepts this amendment, the clock starts ticking from that point. The measure would not affect the present situation to any significant or worthwhile extent. In addition, little of value would be achieved by requiring any Secretary of State to identify a specific implementation date for these provisions until the necessary accommodation is available. As I said, it would be difficult to give a specific implementation date until the additional expenditure—over and above the money that has been made available for the 170 places—has been approved to provide the additional accommodation that is needed to accommodate what appears at the moment to be an inexorable rise of young people remanded to custody and has been included in new spending programmes. The noble Lord will know much about new spending programmes because it is a current topic in his party. The public would not be properly served and nor would they be protected by bringing these provisions into effect before there is available sufficient secure accommodation. At this moment it is difficult to be specific about when these additional places—that is, additional to the 170 places—can be brought on stream.
I have said that I am sympathetic to the amendment. I am happy to put on record an assurance that a full report on progress should and will be made to Parliament. Today I have outlined progress in the planned building programme and explained the difficulties that we face in keeping pace with the rising demand for secure places for remanded juveniles. I have also indicated that we are looking closely at the situation and that we intend to report further to Parliament at the earliest opportunity.
I hope that with that assurance the noble Lord will not press the amendment. I say to those who have sympathy for this provision—I refer also to the noble Lord, Lord Hylton—that we are as concerned as anyone that 15 or 16 year-olds remanded to prison should be kept in a separate wing as far as is practicable. If that cannot be accommodated, efforts should be made to ensure that they are kept as separate as possible from adult convicted prisoners. Special attention should be paid to their regime while they are in prison to ensure that their education and training needs are not neglected. We are concerned about that and we shall continue to examine ways to ensure those needs are met.
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With the assurance that we shall produce a progress report and that attempts will he made to provide a timescale for when this policy will be implemented—the noble Lord referred to my saying in January of last year that that remains the policy aim; namely, that these young people will not be remanded to prison but rather to properly secure homes of local authorities—
Earl Russell: The noble Baroness asked me my source for the incident at Doncaster. It was from the Howard League report Banged Up, Beaten Up, Cutting Up which we debated on 10th January last year. However, I was not making any specific statement about overcrowding at Doncaster. I said the problem was generally one of overcrowding. I stand by that, but I made no specific statement about overcrowding at Doncaster.
Lord Acton: I was not quite clear about something that the Minister said. We have been told about these 170 fresh local authority places for some years now. I think it has been three years. Is the Minister's department pressing for more places, and if so how many?
6.45 p.m.
Baroness Blatch: The 170 places are almost all provided. They will all be in place later this year. I have already said that about 300 young people are remanded at this moment. It is a technical difficulty that we have at the moment. Those 170 places will be available, but at the moment the court remands to the local authority, and the local authority finds the places in secure accommodation. We want to give the courts the power to remand to custody direct from court. Until we can give some guarantee to the court that the provision will be there, it is difficult technically to give the courts that power because we would do so knowing there is a deficit at the moment of about 130 places. It is important that we ensure there is not a continuing rising curve of these young offenders and that we have some understanding of the eventual figure so that when we give this power to the courts we do so knowing the places will be available.
Viscount Tenby: I must take the noble Baroness up on this because it is a matter of great importance. How is it proposed that that power will be given to the courts? The courts desperately need to be able to send these people straight into secure local accommodation.
Baroness Blatch: The power is there in the Act; it is a question of commencing the provision in the Act. The noble Lord, Lord McIntosh, wants to know when we shall implement that provision of the Act. It had its birth in the 1991 Act and was amended in the 1994 Act. It is our intention to implement the provision by means of a commencement order. The power is there; it is a question of when the Government will implement it. What we want is a proper match between the courts having the power, and having the places available to enable the courts to exercise that power.
Lord McIntosh of Haringey: It is impossible to avoid saying "We told you so". This undertaking was

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made six years ago in the 1991 Act. As has been said, the figure of 170 extra places has been referred to over a long period of time. As recently as last year the Government promised that they would be completed by the end of the year. The Minister is now saying that it will he later on this year. That is exactly why the amendment seeks to force the hand of Government, not merely to demand a report but to demand completion. However, instead of pushing ahead for local authority secure accommodation, as would have been required if the 1991 Act had been brought into force, the Government decided to spend far greater amounts of money per head on their publicity seeking initiative of secure training centres. The expenditure was £30 million for 200 places, not one of which exists after the 1994 Act. It was not just £30 million capital expenditure but £30 million a year to keep those centres going. Had the Government not used that diversionary tactic, we could now have had the places that we need in local authority secure accommodation and we would not have this problem and this quite unnecessary delay.
I recognise that the secure training centres are for younger people. But local authority secure accommodation is for a much wider range of ages. A further increase in local authority secure accommodation could have gone much further to solve the problem than the Government have done. They failed to anticipate the effects of their own propaganda resulting in increased remand in custody. As the review of delay in the criminal justice system published only today acknowledges, the delays in reaching decisions in the youth courts are totally unacceptable. I do not say that; the review, the Lord Chancellor and the Home Secretary say that.
Baroness Blatch: Is the noble Lord saying that he is absolutely against high quality secure training places with high quality education and training provision for 12 to 14 year-old very persistent offenders who appear in court having breached community service orders and having exhausted a number of convictions? What would the noble Lord propose should be done for that age group with that persistent level of offending?
Lord McIntosh of Haringey: We have always said that we were opposed to the initiative of secure training centres. We have always said that the same quality of training and education as well as security could be provided in local authority secure accommodation. There is no change in our attitude on that point. I said, "I told you so", and that is still the case. We have been proved right. Neither the secure training centres nor the necessary increase in local authority secure accommodation have been provided. In her speech the noble Baroness tacitly admitted that there is danger that the Bill will run up against the buffers; and she tacitly admitted that it would not be her party in Government to implement it. I suppose that should give me cause for concern.
Noble Lords: Oh!
Lord McIntosh of Haringey: Yes, because commitments are commitments for the Government in
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power. If this Government have not made the provision, it will be for the next Government to deal with the commitments which the Government have failed to honour. That is a problem which faces us across the whole range of the criminal justice system.
The Minister says that the new clause is technically defective. I have no way of rebutting that claim. Therefore on that basis alone, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
McIntosh of Haringey McIntosh of Haringey moved Amendment No. 105:
After Clause 42, insert the following new clause—
BAIL SUPPORT SCHEMES
(" . Every local authority shall provide for the support and supervision of children and young persons granted bail after a conviction in criminal proceedings, either directly or by making arrangements for the provision of such services with such persons as appear to them appropriate.").
The noble Lord said: I believe that we are talking about something less controversial. I think that it has been generally agreed across party lines that bail support schemes have been extremely valuable in reducing the likelihood of those who are not locked up on remand offending again during the crucial period awaiting trial. It comes back to the points made by the noble Earl, Lord Mar and Kellie, from his own experience. The schemes include regular reporting to probation officers, placements with volunteers in the evening and weekends, monitored attendance at youth activities, monitoring school attendance, reintroduction of truants to school, negotiation of specialist economic provision, assistance with employment, involvement in youth training schemes and many other services. In some cases they involve curfews and supervision throughout the day and regular daily reporting. This is a really sensible alternative to remand in custody and should be encouraged as far as possible.
The new clause places a duty on every local authority either itself to provide or to make arrangements with other persons—that could include the private sector or neighbouring local authorities—to provide the bail support schemes for the support and supervision of children and young persons granted bail in criminal proceedings. That will need financial support from the Treasury. However, I hope that the Minister will acknowledge that bail support schemes cannot cost as much as remands in custody. If they become an effective alternative, there will be saving to the public purse as well as a reduction in the likelihood of reoffending. I beg to move.
Baroness Blatch: The noble Lord is absolutely right. These are excellent schemes across the country. They were funded centrally for quite a long time but the Government then pushed the money down to the probation service areas for them to have control over both the money and the bail support schemes that they supported.
Bail must only be granted where it is safe to do so. Decisions about bail are, of course, a matter for the courts, but their decisions about granting bail will take

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into account the availability of bail support services locally which might help to prevent re-offending or breach of bail conditions.
The Government encourage the provision of bail support services where they can help to avoid the need for remands to custody. Bail support projects focusing mainly on juveniles are usually run by, or in partnership with, social services departments of local authorities; this may be in partnership with the Probation Service or voluntary organisations, of which there are some excellent ones. The Government believe that it should be for each local authority to decide on the whole range of services, including bail support, that it provides for young people in its area, in the light of local needs and priorities.
A recent research project funded by the Home Office and carried out by the National Association for the Care and Resettlement of Offenders showed that various kinds of bail support schemes are already in place throughout the country, provided by local authorities, social services departments, probation services, or both. The grant to NACRO also funded the production of a directory of bail support projects, published in November 1995, which is useful for practitioners. Probation services have been empowered to fund, or otherwise support, bail support schemes, depending on local needs and priorities. The Home Office has over the past couple of years devolved some £18 million to the Probation Service for local grants to the private and voluntary sector working with offenders and those on bail in the community. The probation service has also been set a target of spending at least 5 per cent. of its revenue, by the end of 1996–97, on partnership projects which can include bail support schemes.
National standards for the supervision of offenders in the community include standards for the management of approved bail hostels. There are currently 101 approved hostels—92 probation/bail hostels and nine bail hostels—providing a total of 2,314 places. Funding for these hostels is provided by the Home Office, local authorities and residents. They provide a total residential service under 24-hour supervision and are intended as a base from which residents can take full advantage of community facilities for work, education, training, treatment and recreation.
I hope that the Committee will agree from what I have said that the Government are already doing much to encourage the development and use of bail support schemes. But, as I have also said, decisions about provision of this kind should be made by local authorities in the light of their assessment of local needs and priorities.
Moreover, the amendment proposed by the noble Lord, Lord McIntosh of Haringey, is limited to youngsters who have been convicted; that is, those awaiting sentence or pending appeal. My experience through contact with bail support schemes up and down the country is that they are of greatest value during the period when a person has been charged and is waiting for a case to be heard in court. That is the most vulnerable time for young people. A very high proportion of young people, once they have been in court and convicted, are very quickly sentenced, and the sentence is put into play. The numbers involved would be
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very small. For those very few people bail support schemes are available in many parts of the country. We expect local authorities to give priority to young people.
As I said, it is for local authorities to decide on the allocation of their resources in the light of local needs and circumstances. I do not think that it would be right for us at this point to place a statutory burden on local authorities, particularly in respect of such a specific group of offenders. The point will not have been missed by the noble Lord that, were we to place a statutory burden on local authorities, it would have to go hand in hand with the resources to fund it. We still believe that local authorities do a very good job in providing bail support schemes, and, unlike the proposal in this amendment, at a time when it is more fruitful; namely, the time between the person being charged with an offence and the case being heard in court.
7 p.m.
Viscount Colville of Culross: Before the noble Lord, Lord McIntosh, replies, I ask him to examine the words "Every local authority". I take the Minister's point about people awaiting trial as well as those who have already been convicted and who are awaiting sentence.
One of the difficulties in a large conurbation, of which we have a number (I operate in the London area), is that one does not want the local authority where the person normally lives to be providing that facility. It may only be possible to grant bail or await events if the person is away from the place where it all happened, where all the witnesses or all the victims are. "The" local authority is not the right organisation to organise this. A group of local authorities, and possibly a regional group, could very well provide exactly the sort of system we have been talking about. However, were it to be done on the basis of an individual local authority, the difficulty would merely be compounded.
Lord McIntosh of Haringey: The noble Viscount is right; however, I hoped that I had covered that point in introducing the amendment. The amendment states that local authorities shall make provision,
"either directly or by making arrangements for the provision of such services with such persons as appear to them appropriate".
In moving the amendment, I said that that could be other neighbouring local authorities.
The noble Viscount is also right in saying that this should not be too far away, because of the availability of witnesses and the general desirability of children being close to their homes if at all possible. However, I believe that my introduction to the amendment met his point.
However, it did not meet the very valid point made by the Minister that the amendment is wrongly restricted to bail after conviction in criminal proceedings. From the figures to which I referred in moving the previous amendment regarding the length of time spent on remand in custody, it is clear that the time preceding conviction after the charge is too great. As we have already agreed, the review of delay in the criminal justice system relates to that problem and is in recognition of the fact that it has not been solved. To that extent, my amendment is defective.

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However, I do not believe it is defective in the way suggested by the Minister regarding the responsibility of local authorities. Her statement about local authorities having to make arrangements suitable for conditions in their area is music to my ears. That is subsidiarity as it should be. She and I, coming as we do from local government, will certainly agree on that point. Although the rubric of my amendment is "Bail support schemes", the amendment does not lay down the nature of the provision that shall be made. It says,
"provide for the support and supervision of children and young persons granted bail".
I began to list a whole range of measures that local authorities might take which could be covered by the general phrase "bail support schemes" but could, as the Minister suggests, vary from one local authority to another according to local need.
I acknowledge also that the Minister is right in saying that initiatives of local authorities and NACRO, often with financial support from central government, have been very valuable. However, that was the thrust of the amendment. The time has come to move on from pilot schemes, to build on the success of the schemes that the Minister described and try to make sure that they are available all over the country.
Baroness Blatch: I am grateful to the noble Lord. I now have a rather different understanding of what the amendment is about. I apologise if I spoke specifically about bail support schemes. The noble Lord referred to the range of support given to children on bail in local authority areas. There is not a local authority area in the country that does not have some provision for supporting children—the word "children" is used in the amendment—in one way or another. But if we are to put a statutory duty on local authorities, we need to have some view as to what the range should be and some specific prescription. I cannot think of a single local authority area, certainly a single Probation Service area within each local authority area, that does not provide some range of support for children on bail or awaiting a hearing of their case.
Lord McIntosh of Haringey: Again it is no pain to me to say that we are reasonably close together on this matter. We want the provision to be all over the country, and we want it to be flexible. If there is to be a statutory duty I am doubtful as to whether it is necessary to prescribe too tightly the nature of the fulfilment of that statutory duty. But let us not pursue that issue. We want the same thing. We have to make sure that the money is available for it to be done everywhere and to keep young people, whenever possible, out of custody pending conviction and the application of their sentence. When I say "whenever possible", I mean also with due regard to the safety of the public. Bearing in mind the defects of the amendment that have been pointed out, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
The Earl of Courtown: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before ten minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Royal Assent
The Deputy Speaker (Lord Ampthill): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Horserace Totalisator Board Act,

Land Registration Act,

Sea Fisheries (Shellfish) (Amendment) Act,

Telecommunications (Fraud) Act,

Firearms (Amendment) Act,

Local Government (Gaelic Names) (Scotland) Act,

Northern Ireland Arms Decommissioning Act,

Town and Country Planning (Scotland) Act,

Planning (Listed Buildings and Conservation Areas) (Scotland) Act,

Planning (Hazardous Substances) (Scotland) Act,

Planning (Consequential Provisions) (Scotland) Act,

Civil Procedure Act,

United Nations Personnel Act,

National Heritage Act.

Excise Duties
7.10 p.m.
The Earl of Northesk The Earl of Northesk rose to ask Her Majesty's Government, in the light of the Chancellor's Budget provisions with respect to excise duties, what impact these are having and will continue to have upon independent retailers and wider society.
The noble Earl said: My Lords, my purpose in tabling this Question is to bring the attention of your Lordships to the issues of cross-border shopping and smuggling. Of course, these have an economic context. In 1995–96, UK revenue receipts from alcoholic product amounted to some £9.5 billion and from tobacco product some £9 billion. But it is an error to view these issues from the economic perspective alone. They have infinitely wider consequences than this. They have implications with respect to law and order, health and social cohesion. They have implications for the formulation of UK/European policy in so far as there may or may not be merit in obtaining harmonisation of excise duties within the Union. It is perhaps no accident that these threads are so topical at the moment and I look forward to the possibility of some of them being expounded in greater depth by others of your Lordships during this debate.
Let me begin with cross-border shopping. I can accept that this legitimate activity acts neutrally in pure terms upon the Treasury. Yes, it creates a diminution in revenue take, notably from alcohol and tobacco

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products, but this is compensated for by the desire of some of our continental neighbours to come to our shores to purchase other products, principally, as I understand it, a number of luxury items. Scandinavian expeditions to the north-east are a case in point. That said, while the Treasury may be relatively unaffected by this trade, I am less certain that the small retailer is similarly blessed. For example, it is worth noting that 9.5 per cent. of the UK market share for wine is currently accounted for by cross-border shopping. However, suffice it to say that relative to smuggling, I do not believe this to be a particularly acute problem.
So what of cross-border smuggling? Customs and Excise revealed the results of its survey on excise evasion through smuggling in a news release dated 19th September last. It revealed that:
"the total revenue—excise duty and VAT—evaded on alcoholic drinks and tobacco products smuggled from other European Union member states could amount to some £770 million a year".
It further states that:
"The amount evaded is substantial but nevertheless represents less than 5% of the annual excise duty and VAT collected on alcohol and tobacco".
The inference to be drawn is that while cross-border smuggling is, in the words of my honourable friend the Customs Minister, an,
"activity [which] damages legitimate UK businesses and defrauds the ordinary British taxpayer",
at least it remains under relative control. This perception is perhaps endorsed by the further observation from the news release that:
"some of the smuggling is likely to represent additional consumption, rather than substituting for similar goods bought in the UK".
The news release also provides an overview of some more specific detail. Thus:
"Of the £770 million total, £210 million is for alcoholic drinks … and £560 million for tobacco products".
Indeed, the survey's analysis of market share reveals that, whereas somewhere between 1.5 and 2.5 per cent. of UK beer, wine, spirit and cigarette consumption is represented by smuggled product, the corresponding figure for hand-rolled tobacco stands at 59 per cent.
Reading between the lines, it may be that the Customs and Excise survey understates the problem. For example,
"The estimate for smuggling does not include amounts for commercial fraud (where revenue is evaded by use of false documentation)."
Perhaps the Minister is in a position today to quantify the loss to the Exchequer arising from such activity. The survey covers only product smuggled from other European Union member states. What is the scale of smuggling from other territories throughout the world?
Furthermore, the survey gives no indication as to whether any discernible trend as to an increase or decrease in smuggling activity can be extrapolated from its figures. I am mindful here that in November of last year Customs staff uncovered their biggest ever excise duty fraud: a single haul of 20 containers of cigarettes and alcohol worth £65 million. Again, perhaps my noble friend the Minister may wish to comment on that aspect in due course.
I accept, of course, that my right honourable friend the Chancellor in his Budget last November held excise duty for wines and beers at the previous year's levels. He even reduced the duty on whisky and he made allowance for the increased staffing levels at Customs points in the south-east. All these measures are, in my view, to be applauded. In addition, they are a tacit admission on the part of the Treasury that cross-border smuggling of dutiable product is a problem that requires redress.
More than this, Customs officers are the front line in our battle against drugs and pornography. The fight against the importation of these illegal materials to our shores should, of necessity, take precedence over that against dutiable product. By inference, without in any way understating the extremely valuable work of HMC and E in this area, addressing the problem of cross-border smuggling must, to a greater or lesser extent, play second fiddle to this priority.
What of the impact upon the small independent trader? The BRC has estimated that the lack of growth in the UK trade of alcoholic drinks against the pre-single market trend was £1.25 billion in 1995, directly attributable to cross-border shopping alone. Indeed, there is evidence that annual losses to individual shopkeepers may be running as high as £20,000 of turnover per annum. In addition, a national survey of 3,515 independent retailers has revealed that 89 per cent. of those surveyed believe that the situation with respect to cross-border smuggling will get worse.
In this context we should not lose sight of the fact that the small independent retailer, the corner shop, often provides the focus for a community's social cohesion. I should add at this point that the phenomenon of smuggling is also impacting very seriously upon the pub trade. Factors which act detrimentally upon the trade of such enterprises also seriously damage the community in which they operate. If such businesses cannot sustain themselves, the services they provide—the local post office, the National Lottery outlet, the focal point of their community—are then denied to that community.
I do not question the desirability of the competitive marketplace. That is an entirely worthy ambition. However, in this context the capacity of the multinationals to weather the storm of the smuggling phenomenon—it is salutary to reflect upon the selling presence of some of our major retailers in places such as Calais—is in stark contrast to the experience of the small independent trader. For these businesses, it is one thing to feel the cold competitive chill from the major supermarket operators. It is quite another to feel the weight of fiscal policy, albeit inadvertently, bearing down on them as well.
It is also salutary to reflect that the potential size of profit to be derived from the smuggled product, combined with an apparent minimal risk, is so great that it is a market that has attracted organised crime. We are not simply talking about individuals being somewhat over-generous with their duty-free allowances here. The problem is much bigger than that, as evidenced by, for example, the circumstantial evidence suggesting that

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some independent traders are being intimidated into accepting delivery of smuggled product. In effect, they are damned if they do participate in this illicit trade—in terms of the legality of so doing—and damned if they do not, not only in terms of compromising their viability but also in terms of incurring the wrath of the smugglers.
An article that appeared in the Sunday Telegraph on 15th December last year provides us with a snapshot of the current situation. It reported on HMC and E's Christmas blitz against cross-Channel bootleggers in these terms:
"There is concern … among some officers, at how many bootleggers continue to escape. One said: 'There is room for only eight vans in the examination area and at peak bootlegging time-4 to 5 a.m.—you see 30 to 40 vans rolling off those ferries—.
It may well be that there is much to commend the opinion expressed by my noble friend the Minister on 4th June last that he is,
"convinced, as are the Government, that the health reasons for imposing considerable duty on tobacco are unanswerable".
It is a moot point whether a similar argument could be applied to alcohol products. However right my noble friend's contention may be, the differentials created in excise duties between ourselves and our continental neighbours are now pitched at levels which are extremely difficult to justify—more so if we measure them against the scale of and damage being done by cross-border smuggling and shopping. I would go further. It is not unreasonable to suggest that those differentials are now beginning to act almost as an inducement to smuggling.
Nor would I wish to take issue with the Minister in his observations that,
"we should not get the size of the problem out of proportion".
It is interesting to note that VAT and excise duty raise around £80 billion a year—£10 billion more than income tax. Nonetheless, I trust that my comments today—based, as they are, upon the Government's figures—go some way towards persuading my noble friend that the proportionality of the problem is such that it requires further and more appropriate action to be taken to stem the tide of cross-border smuggling before it becomes a flood and before it does irreparable damage.
7.20 p.m.
Lord Harris of High Cross: My Lords, I am glad of the opportunity provided by the noble Earl, Lord Northesk, to discuss some of the consequences of high taxation of tobacco and alcohol. I am sorry to keep the Minister from his dinner; I had rather hoped that either the noble Viscount, Lord Long, or the noble Baroness, Lady Trumpington, would have been let loose on the Treasury Benches on this occasion—they being rather more smoker friendly.
Since I shall be speaking mainly about tobacco, I am pleased to declare a number of interests. I have been chairman of FOREST since 1989; I have been a pipe smoker for half a century, and a lifelong member of the "awkward squad". In all those capacities I am seriously outraged that the Government's rake-off from smokers
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alone now exceeds £10,000 million a year. That is equivalent to over £1 million during the short hour allotted to this debate. Smokers finance one-fifth of the entire cost of the National Health Service. Of the retail price of a packet of cigarettes, 80 per cent. is taxation. It is as though the Government help themselves to 16 cigarettes out of every packet of 20. It is the highest level of tax in Europe and, perversely, the Government are widening the gap with each Budget.
I must say at the outset that tobacco has become something of a fiscal racket. The attitude that politicians display is more than tinged with hypocrisy. They rely on this huge revenue to finance their bloated budgets, while parading their political correctness by boasting of a high-minded assault on the unfavoured smoker. Yet if they succeed in extinguishing the last cigarette and dousing the last pipe, the Exchequer stands to lose £10,000 million.
This is not a party matter. Politicians on both the Government and Opposition Benches are equally guilty. I say without meaning any personal offence that they are like pimps: living well off immoral earnings while protesting that their higher charges are only intended to reduce demand and spread virtue.
The Government rely on the demand for tobacco being relatively inelastic, thereby maintaining total revenue as consumption falls. So they pile on the agony in the sly expectation that most customers will go on paying those extortionate, regressive levies. In their zeal to punish smokers—who still make up 30 per cent. of the adult population—Labour should be more troubled than the Government that their victims are drawn disproportionately from social classes C2/DE who can least afford higher prices and have fewer other pleasures to fall back on. At the same time our persecutors have the audacity to boast that it is all for our own good. Tobacco duties are like the sumptuary taxes of a bygone age—imposed by religious bigotry as an alternative to torture and confession, all for the spiritual welfare of the wretched victim.
Predictably, extortion on this scale has provoked the corrective of avoidance and, alas, evasion. As a result of the Government raising taxes so much higher than in the rest of Europe, over 60 per cent. of hand-rolling tobacco is legally bought in Belgium and smuggled into Britain, with a loss of around £650 million in tax revenue. It is sold in pubs, clubs and boot sales, thereby bypassing the retail trade and contributing to the destruction of the corner shop. Hand-rolling tobacco is only 8 per cent. of the total market. But if smugglers were to shift their attention to the much larger cigarette market, it would be far more damaging to industry, employment and tax revenue. On my figures, the total present loss to the Exchequer, including cross-border shopping, is already approaching £1.6 billion.
What is the justification of this tax mayhem? Of course, we all know that tobacco is the greatest single cause of—statistics. But many of those statistics are misleading. One that is finding increasingly wide acceptance by the scientific community is that diet, not smoking, is the largest single cause of cancer. Let me therefore conclude with a question for the Minister and one for the Opposition.

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If I can persuade the World Cancer Research Fund to send the noble Lord, Lord Mackay, a list of the most dangerous foods, would the Government consider imposing taxes of 200 or 300 per cent. on the chief offending delicacies? If so, the resulting revenue could be used to reduce the wholly disproportionate tax discrimination against tobacco and alcoholic drinks. That would bring a number of advantages. It would not only strike a blow against smuggling and the decline of the corner shop; it would also help to check the danger of smuggling spreading from hand-rolling tobacco to regular cigarettes. Such a development could otherwise strike a devastating blow at one of the brand leaders of British industry struggling to maintain cigarette and tobacco exports of £1,125 million, earning a net trade surplus of £650 million, directly employing 8,000 people and supporting over 120,000 other jobs in manufacture, distribution and retailing.
Impartial as ever from the Cross-Benches, I direct a final question at the noble Lord, Lord Eatwell. It is simple. If a Labour Government harry smokers further towards extinction, how will Mr. Brown fill the increasing hole in his budget?
7.27 p.m.
Lord Lucas of Chilworth: My Lords, like the noble Lord, Lord Harris of High Cross, I too am grateful to my noble friend Lord Northesk for posing this Question and giving us the opportunity to think about the pure statistics involved. Although my noble friend said that the Customs and Excise states in its press release that the amount of money evaded amounts to less than 5 per cent. of the total taxes from alcohol and tobacco, that does not in any way minimize the seriousness of a much wider position.
In his speech, my noble friend referred briefly to the potential profit from smuggling, with minimal risk. He said that it is now so great that it has attracted some organised crime. The evidence available to us in this country is, of course, anecdotal, so far as I am aware. However, it is that aspect of organised crime that I should like to address this evening.
I should declare my interest in this matter in that I have been a member for some four or five years of the North Atlantic Assembly and have served on the Civilian Affairs Committee of that organisation. During 1995-96 the committee engaged upon an inquiry into the effect of smuggling on the stability of society in member countries. As my noble friend said in his opening remarks, this has implications with respect to law and order, health and social cohesion. During the course of the inquiry, five visits were made to seven countries. Indeed, I went on a number of visits during which we talked with law enforcement agencies and in some countries with government ministers.
In both New York and Chicago, law enforcement agencies emphasised the necessity to crack down on any misdemeanour so as to stifle petty crime growing to the greater proportions that both those cities had endured. In New York, new policies were introduced by police commissioner Bratton and are indeed continuing. It was
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claimed there that this has resulted in a 27 per cent. drop in seven major categories of crime compared with two years before.
In Chicago, city dwellers expressed greater concern about organised crime than New Yorkers because they see more directly the connection between the insecurity they feel personally and larger criminal organisations. In both those cities the growth of crime stems initially from the peddling of alcohol, tobacco and of course drugs by gangs who create territories. They take over one from the other until they are sufficiently large and wealthy to engage in larger-scale criminal activities. In Germany, tobacco smuggling, particularly from Poland and eastern countries, and car trafficking from the West to eastern Europe through Germany provided what was described to us as "nursery funding". We heard evidence that this leads to a greater evil, the trafficking in people—both migrant and immigrant—largely for prostitution in the West and for the trade in human organs.
What I am suggesting is that trafficking in profit-making goods such as tobacco generates the rolling stock on the back of which criminal gangs engage in other and more evil activities. In so doing they generate even greater wealth, and with it the clout to exercise political and economic influence in societies.
On Friday 14th February, the Financial Times carried a short report of a conference in Prague. The report stated:
"Mr. Bickford, a former legal adviser to UK intelligence agencies and the Foreign Office, said the US mafia grossed criminal profits which made it the 20th richest organisation in the world—'richer than 150 sovereign states'"
The report also stated:
"The 'gross criminal product' from global organised crime and drug trafficking reached $1,000 bn … last year".
From the figures given by my noble friend, the total revenue excise duty and VAT evaded on alcohol and tobacco products smuggled from other European Union member states could amount to £770 million a year. That figure may appear insignificant against a world total, but it is nevertheless sufficiently significant to warrant action before a much greater problem presents itself. Indeed, turning a blind eye on this aspect of crime can only encourage other and more pernicious criminal activities which we in this country have fortunately so far avoided. Nevertheless, the influence of the money generated by this crime is already evident in this country. I believe that the necessity to shield citizens from this influence is one that the Government cannot shirk.
7.35 p.m.
The Viscount of Oxfuird: My Lords, my noble friend Lord Northesk has placed the nature of the problem in context. I am grateful to him.
The numbers associated with the Government's revenue are impressive and the numbers associated with the incidence of smuggling are disturbing. However, behind the numbers lurks a question, and that is: what function is taxation designed to perform? At its most simplistic it can be defined as the price that qualifying

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citizens have to pay for the services and goods provided by the state which are administered by the government of the day. It could be stated that the payment of tax is a straight commercial deal. That being so, excise duty on alcohol and tobacco products would seem to be set at levels where the consumer—or call him the taxpayer—is being overcharged, and the vendor—or call him the Government—is profiteering. This is underlined by the rationale that both cross-border shopping and smuggling appear to be on the increase. Obviously, product being "sold" by our continental neighbours is proving to be more attractive to our taxpayers because in terms of duty it represents better value for money.
If we look at this situation in purely commercial terms we find that if the price of a product is consistently pushed up in order to sustain the levels of revenue, the purchasers will seek either alternative product or cheaper sources of supply, thereby resulting ultimately in a serious diminution of revenue. Because excise duty is perceived to be a mechanism that can dictate the viability of a market, it is also perceived as the mechanism that can shape the attitudes of those purchasing into that market. Thus excise duty on tobacco product is used to prevent people taking up or continuing to partake of the "dreaded weed". Leaving aside any ethical arguments, this can only have a very limited impact on anything other than an entirely closed market. Where alternative sources of supply at better value for money exist, the market will sniff them out. The proliferation and apparent growth in smuggling bears this out.
For example, smuggled product, as indicated by my noble friend, accounts for 59 per cent. of the hand rolling tobacco sales in the United Kingdom. The inference must therefore be that this is an entirely unregulated market with many sales being made to those most at risk and to those who are most vulnerable; for example, the under-16s. It may therefore be said that in a perverse way the maintenance of high excise duty differentials in a free market works against the best interests of both the Government and the health lobby—so far as putative medical aspirations are concerned—by militating against reduced consumption of tobacco and alcohol by minors and others.
I follow the noble Lord, Lord Harris of High Cross, when I comment that it will be interesting to gather the views of the Opposition in this matter, particularly as Members on the Benches opposite are assuring your Lordships and the country at large that, should they ever have the opportunity, it is their intention not to raise taxes above their current level.
7.40 p.m.
The Earl of Liverpool: My Lords, I should like to join with other noble Lords in thanking my noble friend Lord Northesk for giving us the opportunity of discussing tonight matters relating to excise duty. As has already been pointed out, the scale of revenue which accrues to the Treasury each year from excise duty and VAT is enormous. For beer, the figure is some £5.5 billion or, if one includes corporation tax, income tax and business rate, the figure is
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£11.4 billion; for tobacco, as we have already been told by the noble Lord, Lord Harris of High Cross, it is £10 billion. So, without taking into account wines and spirits, this represents a massive figure of approximately £21 billion.
I suppose it may have crossed the mind of my right honourable friend the Chancellor of the Exchequer to wonder, if he were to reduce the burden of tax on these products, where would he get the funds he would need to replace the shortfall. But I believe that it is necessary to question whether a reduction in excise rate would lead to a diminution of revenue to the Exchequer. Moving towards equalising cross-border tax would remove the incentive to smuggle, thereby quite possibly maintaining the tax take overall. There is no doubt, as other noble Lords have said, that the current high level of excise duty is at best an incentive to indulge in creative buying sprees in France and other countries and, at worst, an incentive to crime. So far as beer is concerned, I understand that the amount brought into this country each day from France is 1.1 million pints. That amounts to 16.5 per cent. of the entire UK take-home market. It is estimated that 33 per cent. of that is imported for illegal resale. This illegal trade is costing the country £210 million in lost beer duty and VAT, as has already been said by my noble friend Lord Northesk, but it can also be argued that it is costing a further £540 million in lost retail sales.
The situation is just as bad as regards tobacco products. The revenue loss from smuggled tobacco—I apologise if my figures do not exactly coincide with those of other noble Lords—is £560 million a year. Customs and Excise figures for seizures indicate that smuggling is on the increase. It is estimated that 60 per cent. of all hand-rolled tobacco consumption arises from cross-border trade, the majority of which is illegally imported. Once smuggled goods are peddled that leads to widespread subversion of the rule of law and is socially damaging. We must not forget that the uncontrolled sale to children is a serious problem which we really must face up to.
I believe that these trends are very worrying indeed and we cannot afford to ignore them. The point made by my noble friend Lord Northesk—and I paraphrase—about the impact the excise duties are having on independent retailers and on society at large is a very pertinent one. I am sure that no one, including my right honourable friend the Chancellor of the Exchequer, wants to encourage crime, but with beer duty approximately seven times higher here than in France, what else can one expect?
Apart from the Exchequer, independent retailers are generally the hardest hit financially by illicit trade in alcohol and tobacco. The typical corner shop—and this has been mentioned by other noble Lords—is already under threat from the ever-increasing numbers of out-of-town superstores, and their plight will only get worse if the smuggling trend continues to grow. So I hope that my noble friend the Minister can reassure the House that every effort is being made to

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establish greater tax harmony with our neighbours by reducing our excise rates, thereby removing the root cause of crime in this sector.
7.45 p.m.
Lord Eatwell: My Lords, the Red Book published at the time of the Budget contains a summary of the Government's objectives with respect to taxation. Included in the list of tax objectives are,
"apply it fairly and evenly, closing loopholes so that commercial decisions are not distorted by attempts to avoid tax".
There then follows,
"raise revenue in ways which do least harm to the economy and take account of the competitive position of UK business".
I think it will be evident from the discussion this evening that the Government have singularly failed to meet either of those objectives with respect to the excise duties levied on alcohol and on tobacco.
What have been rather less clear, apart from calls for those duties to be reduced, are the reasons for the Government's failure in this case. I would like to suggest that there are two reasons. First, during their time in office and until this past year, the Government have been notably complacent in their attitude towards the problem of tax and revenue evasion. If only the same effort had been put into reducing tax evasion as has been put into the campaign against social security fraud, the problems that we are discussing this evening would be far less severe. The neglect of the Customs Service, manifest in the significant reductions in the numbers of customs officers, is an important element in the growth of smuggling.
The second reason for the Government's failure to meet their objectives is the fact that their influence in Europe, due to their general haphazard European policy, is really negligible. Also, the Government have shown a general hostility towards all questions of fiscal harmonisation. They have therefore totally failed to secure appropriate action from other EU governments to reduce the bizarre differentials in taxation on drink and tobacco which are, of course, the main motivation for the smuggling which has been discussed this evening. I note that in his Budget speech the Chancellor made a nod towards harmonisation in respect of the duty on spirits, but the Government have achieved little in that direction in respect of action by EU partners.
As a corollary, the Government also obviously stand accused of failing to anticipate what was a totally predictable outcome of the completion of the single market. Perhaps I may deal with tax differentials first. It is clear that Britain is suffering from substantial revenue losses from what might be called the legal cross-border shopping, which was one of the outcomes of the single market Act. These losses are of course to be expected in any single market in which there are different sales and excise tax regimes. For example, it is a familiar problem on the borders between US states.
The problem is generally regarded as "bearable" because the advantages of the single market, and for the individual states of the fiscal regime, are felt to offset losses caused by smuggling. Will the Minister tell us what is the Treasury's current estimate of the revenue
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losses due to "legal" cross-border shopping? If these are balanced out by shoppers coming from the Continent to Britain, what is the estimate of the loss of jobs in Britain due to cross-border shopping and does the Minister consider this loss of jobs to be a price worth paying?
Of far greater importance, of course—and it has been referred to this evening—is the illegal import of alcohol and tobacco. The incentive to smuggle derives from the differential in duty. Yet, despite the fact that many EU members are desperately short of fiscal revenue, in an attempt to reduce their deficits the Government have totally failed to persuade other states to raise their duties to reduce the incentive to smuggle. Why have the Government failed? Does it have anything to do with hostility towards fiscal harmonisation? Can the Minister tell us what steps are being taken to encourage other member states to raise their excise duties on alcohol and tobacco?
It cannot be emphasised too strongly that what we are discussing this evening is an illegal trade, which is doing considerable harm to British retailers, damaging British producers and which is costing British jobs. As noble Lords have already commented, it creates a culture of criminality surrounding the distribution of alcohol and tobacco which can do nothing but harm, particularly to young people.
The fundamental question which the Minister must answer this evening is why the Government are condoning systematic illegal acts which are costing the Treasury such enormous amounts of money? What action are the Government taking to reduce the incidence of those illegal acts and is that action proving effective?
Will the Minister begin by telling the House what has been the scale of staff reductions at Customs and Excise over the past 18 years and will he confirm that there has been a systematic reduction in staff year on year to the detriment of both revenue protection and protection against the illegal import of narcotics? The Minister will, of course, confirm that that policy was reversed only this year when the sheer scale of damage which had been done to the ability of the Customs and Excise to protect revenue had become evident even to this complacent Government.
In the Budget the Chancellor announced a number of measures which were designed to reduce tax evasion. However, of the total expenditure of £680 million, only £88 million was directed towards Customs and Excise although the table on page 106 of the Red Book makes it clear that that is by far the most cost-effective means of tackling tax evasion. When we turn to the Customs and Excise press release which accompanied the Budget, we are told that there are to be a grand total of 100 new staff to combat cross-border smuggling. What a pathetic reaction! The noble Earl, Lord Northesk, quoted a Customs officer's assessment of the inadequacy of the Customs protection provided to this country by this Government.
We were told at the time of the Budget that there would be 100 new staff, so will the Minister tell us exactly how many new staff have been hired to date? What has been the net gain in staff in the Customs

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Service since the Budget? Will the Minister tell us the number of additional staff assigned to combat and control smuggling and the total number of Customs officers as compared to two years ago? How many successful prosecutions have there been for the smuggling of tobacco and alcohol?
Several times during this debate noble Lords have directed questions at me. It is unusual for the Opposition to be asked questions in this House, but given that we have only three months before the general election, perhaps I ought to get in a little practice. I can assure noble Lords that there will be no holes in Labour's Budget of the sort that have been exposed in the Government's Budget in this debate. This short debate has revealed that the Government have not only failed to meet their own declared tax objectives, but they have failed to display even a minimum level of competence in dealing with a fiscal problem which was totally predictable prior to 1st January 1993. In particular, the Government have failed to provide the Customs protection against illegal activity that this country deserves. It is the Government's failure which is doing such damage to small retailers and which is costing jobs in Britain's shops and factories. The Government are again letting down the small businesses of this country.
The Viscount of Oxfuird: My Lords, before the noble Lord sits down, perhaps he could answer my question and tell the House his intentions in this regard or those of his party.
Lord Eatwell: My Lords, our intentions are to maintain the fiscal probity which will give this country the level of monetary and fiscal stability which it deserves but which this Government have failed to provide.
7.52 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, we have had an interesting debate. Perhaps I may advise my noble friend Lord Oxfuird that the real answer to the question that he has just asked is that the party opposite is saying that in the unlikely event that it becomes the Government, it will over the next two years follow the expenditure totals laid out by my right honourable friend the Chancellor in his Budget. That means inevitably that there will be no further spending above that which we have planned. I take that to be a vote of confidence by the Opposition in the spending plans that Her Majesty's Government have laid out for the next two years.
I cannot resist starting with the noble Lord, Lord Eatwell, who as usual was extremely good at scattering your Lordships' Chamber with questions. He then said that he would answer some questions, but I suspect that some of your Lordships who asked him a question will feel that you did not receive much, if anything, in the way of an answer. Perhaps I may try to answer some of those questions. Inevitably, however, I shall not be able to answer all of the questions put by the noble Lord because he can ask questions at a far faster rate than
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I am capable of answering them and given the time limit on this debate, I do not think that I shall manage to answer all of the detailed questions that he asked.
This has been an interesting short debate and I congratulate my noble friend Lord Northesk on introducing the subject. From the Treasury's point of view, the yield on duty alone last year from alcoholic drinks was £5.5 billion and £8 billion from tobacco. That gives a total on duty alone of £13.5 billion. If value added tax is added to that, we are talking about a total of £19.5 billion from those two sources alone. I must advise some of my noble friends that significant reductions to those duties would leave an awkward gap to be filled by increased taxation elsewhere. I shall read the comments of the noble Lord, Lord Eatwell, with interest because I was puzzled about whether he was suggesting that we should reduce the duty and value added tax on those items. That would certainly add to the £12.5 billion hole which we already know to be in Mr. Gordon Brown's theoretical Budget.
If we were to reduce the rates in this country to French levels, it would cost in the region of £7 billion—I underline the fact that that is the figure for duty. I repeat that £7 billion of the £13.5 billion would be lost if we were to reduce our rates to the level of the French. That would be a significant budgetary problem and we would have to find that sum from taxation elsewhere. As I shall show later, it would also have significant social consequences for the policy that we are pursuing on smoking.
I understand that since January 1993 cross-border shopping and smuggling problems have caused difficulties for British retailers and, to a lesser extent, for British industry. In his last Budget, the Chancellor took careful account of those issues when reaching the decisions that he did. Indeed, in his 1996 Budget, for the second Budget running, the duties on beer, on most wines and on most ciders remained unchanged and the duty on spirits was reduced. I believe that my noble friend Lord Oxfuird mentioned that. However, the duty on alcopops was increased in order to meet two objectives: first, to remove the duty advantage and, secondly, to address public concern regarding teenage and under-age drinking of those products.
Turning to smoking, the Budget increased the duty on hand-rolled tobacco in line with inflation by 2.1 per cent. All other tobacco duties were increased by 5 per cent. in real terms. I suspect that I am in a minority in this debate in being not only a non-smoker but someone who has never smoked. I am not sure whether that makes me a minority of one—but perhaps I am in a minority of two because the noble Lord, Lord Eatwell, is signalling that we agree on that at least. As we do not agree on much else, it is nice to find something on which we do agree. That is in line with the Chancellor's undertaking that tobacco duties will on average be increased by at least 3 per cent. a year in real terms, thus using taxation to reduce smoking and the number of people who take up the habit.
I must advise the noble Lord, Lord Harris of High Cross, that I object to being accused, even mildly, of political correctness. I belong to that minority which

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believes that a "chair" is an inanimate object on which one sits and that the person who sits on it is a "chairman". Therefore, the noble Lord was a bit wide of the mark in suggesting that I was being politically correct.
Although this is not really an argument for this evening or this debate, I believe that the argument against tobacco smoking can be made entirely on health grounds. Although I suspect that the noble Lord, Lord Harris, will not agree with me, I believe that the case is unanswerable. Hardly anyone argues against the proposition that tobacco smoking is one of the major causes of cancer, heart disease and other horrible diseases such as emphysema. Tobacco smoking is undoubtedly a major cause—in some cases, it is the major cause—of some of those problems. If a food is discovered to be severely carcinogenic, governments around the world will take steps to prevent it getting into the food chain or to remove the carcinogenic element. I do not make any apology to either the noble Lord, Lord Harris, or to some of my noble friends for saying that I agree absolutely with the arguments advanced by my right honourable friend the Chancellor on tobacco smoking and health, as do vast numbers of the medical profession; and, dare I say, people who, following a lifetime of smoking, in my view self-inflicted and self-decided, proceed to take the tobacco companies to court. I saw on television this morning that there was quite a stir in France along just those lines.
As my noble friend Lord Liverpool has said, if harmonisation or approximation of duties across the European Union comes about, cross-border activity and fraud will wither on the vine (if I may put it that way). We very much favour some movement towards convergence. Equally, we are determined to maintain the position where taxation remains a matter for each member state. I want to make that point clear to the noble Lord, Lord Eatwell. I was not sure whether he was saying that we should give away our tax-raising powers to the European Union, which would be one way of moving towards convergence. For example, we should like to see beer levels move up in countries where they are low at present. The French have just increased their rates, and that is a hopeful sign. We should also like to see the introduction of a positive minimum rate on wine and secure an upward convergence on the duty rates for tobacco. But, like all member states, we have strong views about excise taxation and unanimity is required on tax matters.
There are other potential allies on the Continent. Denmark, Finland and Sweden have high excise duties and much higher VAT. A few years ago Denmark, in order to counter cross-border shopping, brought down its duty rates on beer and wine considerably and as a consequence lost a great deal of revenue. The inevitable result was the introduction of compensation tax increases in other areas. Of course, legitimate cross-border shopping goes on and the excise duty loss there is about £200 million per year. Balanced against that, there is other cross-border shopping that works the other way. For example, in particular people from Scandinavian countries come to Scotland. I have seen
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Scandinavians arrive by plane at Glasgow airport in order to do very high value shopping. They come to the north-east of England—the Newcastle area—because of the ferry links. I am informed that people come from France to Kent to take advantage of the supermarkets there. It is difficult to decide those issues on the basis of a balance sheet, but we should not turn a blind eye to the fact that there are some advantages in the other direction.
As to illegal activity, it is difficult to determine the exact quantity. In the case of cigarettes and tobacco products we believe that it accounts for about 1.5 per cent. of the market. The smuggling of hand-rolled tobacco is a cause for concern. It accounts for about 60 per cent. of UK consumption. It was for that reason that the Chancellor did not increase duty on hand-rolled tobacco at the same rate as for other tobacco products.
Clearly, there is an effect on the retail drinks trade but I do not believe that the picture is a simple one. Since 1993 sales through legitimate UK outlets have increased for all drink categories with the exception of spirits. Most major and many regional brewers report increased profit levels. There have been pub closures particularly among smaller pubs that rely mainly on beer sales. Cross-border shopping aside, there are a number of other reasons why this has happened. We can all see the shift of public taste upmarket as hotel chains, restaurants and wine bars increase their stake in the eating and drinking-out markets. The off-licence trade has over the years taken business from the pubs; and within the off-licence sales sector supermarkets have increased at the expense of specialist off-licence shops, as my noble friend Lord Liverpool said.
Other factors include a shift in drink preferences from beer to other drinks such as wine. More people are drinking at home because of drink-driving laws, home entertainment but, most significantly, cheaper drinks from off-licences and supermarkets than can be obtained in pubs. It is important that these longer-term trends are recognised and that not all the changes that the industries are experiencing are a direct consequence of the single market. There is loss of trade and duty, but that is only part of the argument.
What are we doing about smuggling? Our top priority is to catch smugglers. The ordinary consumers who go to another EU member state to buy for their own consumption are doing nothing illegal. Smuggling goods from another member state with the intention of reselling them is a crime; dealing in smuggled goods is a crime; buying smuggled goods is a crime. Customers estimates that the revenue evaded through smuggling from other member states is £210 million for alcoholic goods and £560 million for tobacco products. Some of these figures will represent additional consumption. It is interesting to note that, according to Customs estimates, the volume of smuggled wine is less than 25 per cent. of that represented by legitimate cross-border trade. There is no available estimate of smuggling from outside the EU, but evidence from seizures suggests it is not on the same scale as intra-EU smuggling.

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In his November Budget the Chancellor announced proposals for the deployment of a further 70 officers specifically to target excise smuggling and illegal trade throughout the country. This will take the number of Customs' single market excise anti-smuggling staff to more than 330 over the next year. Front-line officers are backed up by a specialist intelligence and investigation teams whose resources are also being increased.
Lord Eatwell: My Lords, perhaps the noble Lord will allow me to intervene. We are all aware of the Chancellor's announcement. Can the Minister say how many new Customs officers have actually been placed in post since the Budget?
Lord Mackay of Ardbrecknish: My Lords, I do not have the figure to demonstrate how we are progressing with recruitment of the further 70 officers. However, I have explained that over the next year we will be approaching the total of 330 Customs officers. I am sure that the noble Lord approves of that. Obviously he would like more money to be spent on that. During the 12 months ending on 31st October Customs recorded 2,600 seizures involving 57.5 tonnes of hand-rolled tobacco and an increased quantity of alcohol. We take the trade concerns very seriously. Customs has a forum with the trade called the Excise Alliance which develops co-operative approaches to smuggling detection and exchanges high level information on smuggling and fraud.
There is no official estimate of the extent of large-scale commercial fraud. By their nature such activities are very difficult to quantify, as I am sure my noble friend Lord Northesk, who raised this matter, appreciates. We take it very seriously and continue to combat it. This will be aided by additional staff, numbering some 130, who are also to be deployed under the Chancellor's Spend to Save initiative.
My noble friend Lord Lucas of Chilworth raised questions about "serious crime" smuggling, in particular smuggling related to other aspects of criminality. He told us about matters that he had learnt as a UK delegate to the North Atlantic Assembly. It appears that the majority of revenue smugglers are individuals who simply look for enhanced profit from their illegal trade. Sometimes they work in very large rings, but there is little proof that such criminals are connected with organised crime or drug smuggling. In the words of my noble friend, there is little proof that the money earned from alcohol and tobacco smuggling is being used as nursery funding for other types of criminal activity. We continue to watch this matter very carefully.
At operational level Customs officials have a very good working relationship with their counterparts overseas. That co-operation has led to significant numbers of seizures of smuggled excise goods. We should pay tribute to the work that is done by Customs and Excise officers in protecting society by the investigation of drug smuggling and dismantling the trafficking organisations, which is one of the department's highest priorities. They work closely with the police. A terrific spirit of co-operation is engendered
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in the Government's strategy Tackling Drugs Together, to which both we and HM Customs and Excise are fully committed. Of course, Customs also gives high priority to the smuggling of commercial pornography, paedophilia, firearms, endangered species and other prohibitions and restrictions. The resources available to Customs must be balanced between front-line anti-smuggling officers, investigation officers and intelligence staff. Their joint efforts achieve significant results. For example, to date in this financial year about £1.5 billion worth of drugs have been prevented from entering the UK. The other day in the Scottish courts individuals were brought to justice for some very serious drug smuggling.
To sum up, we recognise the problems of cross-border shopping and the smuggling that we have discussed this evening. We recognise the threat that that poses to UK revenue and to legitimate trade. Consumers are entitled to benefit from the single market but smugglers are not. I assure my noble friends and other noble Lords that we are determined to pursue them with the utmost vigour and will continue to fight our corner with our friends in the Community. In making his Budget decisions, the Chancellor will balance a whole range of factors. One of those factors will be, as in the past, cross-border shopping, the smuggling of goods and the impact that that has on legitimate trade in this country.
This has been a most interesting debate. Again, I congratulate my noble friend Lord Northesk on introducing it.

Crime (Sentences) Bill
House again in Committee.
Clause 43 [Power to make hospital and limitation directions]:
Lord Dubs Lord Dubs moved Amendment No. 106:
Page 30, line 25, leave out ("is likely to") and insert ("may").
The noble Lord said: I move the amendment tabled in my name and that of the noble Lords, Lord Hacking and Lord Alderdice. The noble Lord, Lord Hacking, has informed me that he is unfortunately unable to be here as he has had to go aborad. He very much regrets being unable to move the amendment. I shall speak also to Amendment No. 108.
At the outset, I should perhaps declare an interest in that I am a non-executive director of an NHS mental health trust in South West London called Pathfinder. That trust has a medium secure unit as part of its provision.
In Clause 43 we are dealing with what has been called the hybrid order; namely, the power of courts to impose a combined hospital and prison sentence. It is that which has given rise to a certain amount of concern. A working group on psychopathic disorder chaired by Dr. John Reid was established by the Department of Health and the Home Office. It reached certain conclusions. It recommended a type of hybrid order. What is now being

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proposed in the Bill goes a long way beyond what the working group suggested, and in some ways is counter to its intentions and what it put forward.
Let us take the case of a mentally disordered offender who has committed an offence, who is then given such a hybrid order. He might spend the first three years of an eight-year prison sentence in a secure unit. During that time he or she would receive the benefit of medical treatment. Let us suppose that at the end of those three years that individual is better. Under the Bill, that individual will then have to go to goal and serve the remaining seven years of a 10-year sentence. It is that removal from a secure unit where an individual has had treatment back to prison, or perhaps to prison for the first time, which is the cause of concern.
Let me summarise the concerns. There will be difficulty in establishing continuity of care. A hospital can establish a regime of care continuity. That could hardly survive transition to a prison—at least, not in the same way. Many doctors would be unhappy about transferring an individual back to prison, because prison is not conducive to mental health. Indeed, a person who has got better in a secure unit might well suffer a relapse through being put back into prison.
A further consideration relates to conditions on release and post-discharge supervision. Arrangements provided by a hospital are normally different from those provided by a prison. There are certain complications, particularly as an individual might be in a prison further away from his or her home than the hospital is. There is also the difficulty of a prison a long way away providing supervision and help on discharge, because of the geography. The hospital could do that better, because the hospital is more likely—not inevitably—to be located not so far away from the individual's home.
Another concern is that as a result of all that, clinicians might well feel that it is so inappropriate to return such an individual to prison that they might keep him or her in hospital longer than was clinically necessary. They would do so from the best of motives: to protect the public and in the interests of the patient's well being, because they might be worried about the possible consequences of sending that person to prison, which it would be in their power to do. If they felt the treatment was over, there would be no choice but to send that individual back to prison.
Indeterminate restriction orders under the Mental Health Act 1983 might result in some of those individuals being held longer than they would be under the determinate sentence provisions of the Bill. So, if we are talking about protecting the public, it does not necessarily mean that the public would be better protected; it just means that the individual might well have a relapse in prison, and would then be released with less adequate supervision than there might be.
The difficulty with the way the Bill is drafted is plain. I think I have explained the difficulties, but so much concern has been expressed by the Law Society, the Royal College, and other organisations working in this field, that it is only right to take their concerns seriously. What the amendments would effectively do would be to give an element of discretion to the doctors in such a
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secure unit so that they would not necessarily in all cases have to send an individual back to prison. In some instances, of course, they would. That might be the right thing to do. But it would not be the right thing to do in all circumstances. That is the effect of the two amendments taken together. I beg to move.
8.15 p.m.
Lord Alderdice: I shall speak to these two amendments and refer also to Amendment No. 107 which is involved in this whole matter. First, I declare a possible interest as medical director of a health and social services trust in Northern Ireland which has mental health facilities although at this stage not a secure unit.
My noble friend Lord Thomas of Gresford, on Second Reading, at which I was unable to be present, referred to the difficulties that might arise. He observed that the clause would leave a psychiatrist in the position of a gaoler who determines at what point his patient, who may have been cured of the illness from which he suffered, is sent to prison. The relationship between the doctor and the patient is at the heart of the problem. It may be worthwhile for us to reflect upon the history and background of the notion of the hybrid order.
In 1994 the Reid Committee made the suggestion because of the dilemma in which psychiatrists found themselves in relation to psychopathic personality disorder and offences. The dilemma was that it is not easy to know how far one can modify, change, help, mature, or develop, the personality of someone with such a demeanour. It is difficult in the generality of things. It is exceedingly difficult with any particular individual. So psychiatrists found themselves in the difficulty that if they took on a particular psychopathic personality disordered offender they would be stuck with working with him for a long period of time, although perhaps discovering after six or nine months that they could not modify that person's behaviour: he was not prepared to co-operate; the mechanisms which were to hand were not sufficiently strong, or for whatever.
That led to a dilemma for psychiatrists. If they were to take such psychopathic personality disordered offenders into their care, they might find that they would have someone with them for a long time whose behaviour and personality they could not modify. The bed would then be blocked. They would then be unable to take into their care someone who might well be able to benefit from it. So the suggestion was made at that stage that if there could be some mechanism whereby a patient could be taken on for a period of time, almost, as it were, for assessment to see whether it were possible to do something about him, and, if it were possible, they could continue to work; and if it were impossible, for whatever reason, the person could be returned to serve out the rest of his or her prison sentence.
Two things have happened with regard to the notion of a possible hybrid order. First, it has been suggested that, when the patient is taken by the psychiatrist and some modification has been engineered in his personality, he should subsequently go back to prison.

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The problem is that much of the development that has taken place is likely to be taken to pieces on return to prison. The circumstances to which he will return are in no way predisposing of the betterment to his approach to life, but quite the contrary. Therefore, the psychiatrist will be put in the position of saying, "I know that if this person goes back to prison all the good work that I have done will fall to pieces. On the other hand, if I keep him here I am blocking a bed, which means that no one else will be able to come in. I know that he is not going to make any more progress because he has made all the reasonable progress that he can". What he really needs for his own betterment and that of society is to go outside and to have a continuity of care. In the health service we have tried to create a seamless service from in-patient to community care. That seamless service is completely impractical when we are talking about someone coming out of prison and going to a different area with a different service.
In extending the notion from the Reid Committee, the first dilemma is that, instead of the psychiatrist working to enable the person to return to the community, he will be committed to putting the person back into prison, where his work will be taken to pieces and the person will deteriorate in the interests of no one. The second dilemma is that the Reid Committee at no time considered that this subject should be expanded to include the whole remit of mental illness.
There are fundamental differences between psychopathic personality disorders and mental illnesses. Clearly, that is not very well understood. That is evidenced by the reply of the Under-Secretary, Mr. Sackville, when the matter was considered in another place. The rationale that he gave—indeed, it was the only example that he gave—was based on a drug trafficker who would normally receive a sentence of, say, 10 years, who was at the time of sentencing suffering from schizophrenia. He suggested that schizophrenia was merely a temporary disorder and that when the person was cured he would return to drug trafficking. That showed little understanding of the mechanisms of schizophrenic disorders or their relationship to drug trafficking.
Schizophrenia is not a single but a whole group of disorders and it is clear that those who suffer from it are not well ordered drug traffickers involved in a criminal conspiracy. They are generally vulnerable people whose life is in a complete shambles. The fact that such an example was given, and that it was the only example given, shows a manifest lack of understanding of the mental illness from which many such people suffer. Such a person would not be a drug trafficker in the sense in which the expression is being applied in the Bill. The kind of disorder from which someone suffers in a schizophrenic disorder is a chronic debilitating disorder from which he is not likely to recover and for which he is likely to need continued care. He will not operate in an organised fashion as a drug trafficker.
To save the Committee's time, I have responded to Amendments Nos. 106 and 108 and also to No. 107—the proposition of the noble Lord, Lord Mottistone, that the notion of other mental illnesses should be
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taken right outside the Bill and that, in so far as it should apply at all, it should apply only to the group of people that the Reid Committee recommended; that is, those with psychopathic personality disorders. As regards the amendment tabled by the noble Lord, Lord Hacking, and introduced in his absence by the noble Lord, Lord Dubs, in so far as it applies to psychopathic personality disorders, where an improvement has been achieved, let us not put all that at risk again by returning the person to prison, destroying the relationship with his psychiatrist, undoing all the good work that has been done and sending him eventually back into the community with no appropriate care as we would see it.
Lord Mottistone: I shall speak only to my Amendment No. 107. As the Committee is aware, I am advised on mental health matters by the National Schizophrenia Fellowship. Before the Bill came to this House my noble friend Lady Blatch wrote me a long letter giving an explanation of Clause 43. My understanding of the views of psychiatrists on Clause 43 is that Home Office Ministers had responded definitely to the discussions last summer on their White Paper, Protecting the Public, which was published last year. The Government are to be congratulated upon listening to those discussions—they do not always do so—and for taking some resulting action in the preparation of Clause 43. However, there is an underlying worry among all psychiatrists that schizophrenia sufferers being in an ordinary prison for whatever reason and however justifiably is most unwelcome. I do not know whether the noble Lord, Lord Alderdice, would agree with that. That is because such sufferers are often treated badly by other prisoners, however much the prison staff wish to protect them.
The long letter to me from my noble friend the Minister explains at some length how limited the use of hospital direction as described in Clause 43 is expected to be. That letter is dated 21st January and a copy of it is in the Library. On reflection, I believe that the powers given to the courts by Clause 43 are necessary for certain intractable and dangerous cases of mental illness. I believe that there must be some ways of protecting the public—the strangers who are attacked and from time to time killed—from people who are shown to have a mental illness in a form which leads to that kind of conclusion. Accordingly, I have tabled Amendment No. 107 as a probing amendment in order to give my noble friend an opportunity to put before the Committee for the record the relevant parts of her letter to me. I trust that, in replying to my amendment and to those moved by the noble Lord, Lord Dubs, my noble friend will take such action.
The Lord Bishop of Chichester: I agree with what has been said by the previous speakers, but there is also a moral issue. If a person after trial has been found mentally unfit and committed for treatment at the end of which he is transferred to prison he is, in effect, receiving a double punishment because he is being treated as though he is not mentally unfit. I can follow

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the argument that if after the treatment he is still a risk he should be detained, but I do not believe that prison is the right place to deal with that. I understand that there are great problems as regards sufficient accommodation, but that is another question. I believe that a real moral issue of double punishment needs to be addressed.
8.30 p.m.
Baroness Blotch: The hospital direction power has been prepared to meet a difficulty which the courts sometimes face when sentencing mentally disordered offenders. The circumstances are unusual, but when they arise they create serious difficulties in dealing with some of the most dangerous offenders. They occur when a serious offence has been committed. The court has heard the evidence that the offender is mentally disordered, but is not satisfied that dealing with the mental disorder will prevent further serious offences after he is released. My noble friend Lord Mottistone was right to say that that issue has not been addressed by these amendments.
Under the existing terms of the Mental Health Act 1983, the court must choose between a hospital order or a prison sentence. A prison sentence cannot guarantee that an offender will receive the specialist treatment he needs for his disorder. A hospital order is likely to lead to his discharge as soon as medical treatment is completed. It may also lead to his discharge if his condition proves untreatable, regardless of the severity of his offence. At best he will take up a hospital bed even though doctors can do nothing further for him.
The new hospital direction would resolve that dilemma. It is a power for the higher courts to direct that an offender who has received a prison sentence be admitted at once to hospital for medical treatment. It combines the security of a custodial sentence with the immediate availability of medical treatment.
The offender made subject to a hospital direction will serve his sentence, securely detained. But as long as his doctor is satisfied that he is benefiting from treatment in hospital, he can remain there. At the end of sentence, he can be discharged from hospital or he can remain there under civil powers if he still requires treatment. Alternatively, if his doctor finds that he is not benefiting from treatment, he can recommend that the Home Secretary remit him to prison to serve the balance of his sentence. In that way he will not be occupying a valuable hospital bed to no avail.
I know that some professionals in the mental health services have concerns about the new hospital direction. They fear that this is a fundamental shift of emphasis in the treatment of mentally disordered offenders; that the courts will use it to punish mentally ill people whose offences resulted from their illness; that hospitals will somehow be required to act as gaols, detaining people who no longer need treatment. If I thought they were right, I should share their concern. But I do not.
The Government's position has not changed. Mentally disordered people who need treatment should receive it in hospital. The courts have a strong tradition of applying the existing hospital order in preference to a prison sentence where they are satisfied that medical
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evidence justifies it. The new hospital direction will not affect the availability of the existing hospital order. Far from seeking to change existing court practice, the proposal seeks to reinforce it. Clause 43 requires the sentencing court to have considered making a hospital order and concluded that a prison sentence is necessary before it can consider attaching the new hospital direction. That is a positive obligation on the court.
To provide further reassurance, Clause 43 has been drafted to enable introduction of the hospital direction in phases. Initially, it will be available only where the court has medical evidence that the offender is psychopathically disordered. Those are the offenders for whom the power is most likely to be appropriate. There are divisions of opinion among psychiatrists over the extent to which psychopathic disorder can be tackled by medical means. There is doubt about whether the risk that psychopaths will re-offend can be influenced through clinical treatment. So they are the category for whom the power is most likely to be used.
I am grateful to my noble friend Lord Mottistone for giving me notice of his intentions in bringing forward his amendment. My noble friend's amendment would remove from this provision the section which would permit extension of the power to enable courts to make hospital directions for other mentally disordered persons such as the mentally ill and mentally impaired. I believe it is appropriate that courts should have that discretion, not to punish the mentally ill or mentally impaired person whose offence is entirely bound up with his disorder but to deal with the cases where that may not be so—where the person was not ill when he committed his offence; where his illness is incidental to his offence; where doctors are not clear about the diagnosis at the time of sentencing or subsequently change their opinion in the light of experience. There are those who argue that mentally ill people should never have a custodial sentence. But the courts can already pass such sentences, and they do so where they think it necessary to protect the public from further offending. This amendment would remove the prospect of their having power to direct immediate hospital treatment for mentally ill people who received a custodial sentence.
I do not believe that is an outcome which my noble friend sought in proposing this amendment. There is no intention to replace the existing hospital order disposal for the great majority of mentally disordered offenders. Nor is there any evidence that the new power would have that effect. I hope that for those reasons my noble friend will not press his amendment. Indeed, he said that it was a probing amendment.
I turn now to the amendment tabled by my noble friend Lord Hacking but moved by the noble Lord, Lord Dubs. Clause 43 provides that to make a hospital direction the court will need exactly the same evidence from doctors as it does to make a hospital order under the Mental Health Act 1983. The court will need assurance that medical treatment is more likely than not to be of benefit. Amendment No. 106 would change that. Under his proposal, there would need only to be a possibility that medical treatment could he of benefit. This would enable the court to direct offenders to hospital where there was any chance that medical treatment could help. Precious hospital beds could be

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taken up by patients who did not need or refused to co-operate with treatment until arrangements could be made for their transfer to prison. In practice, those effects would be limited because doctors giving evidence would presumably be reluctant to offer beds in those circumstances.
Although my noble friend Lord Hacking is not here, I assume that the noble Lord, Lord Dubs, has communicated with him over presenting this amendment. However, I believe that his purpose in proposing the amendment is to facilitate the admission to hospital of psychopathically disordered offenders. Such people may need lengthy professional assessment before it can be concluded with confidence whether they are likely to benefit from medical treatment. That is a purpose which we share. But for the reasons I have given, this is not the best way to achieve it. It can, however, be achieved by the use of interim hospital orders under Section 38 of the Mental Health Act 1983. Professional advice has been that the existing maximum duration of the interim hospital order, at six months, is inadequate for this purpose. So we are extending that maximum period to 12 months in Clause 46 of the Bill.
My noble friend's second amendment would undermine the whole purpose of the hospital direction power. As I have said, the power is intended to address those situations where the court has concluded that a hospital order does not meet the needs of the case.
Except in cases where the law demands a life sentence, the court will have reached that conclusion by careful deliberation. It will have heard evidence about the offender's mental condition. It will have considered the likely effects of a custodial sentence on that condition and will have concluded nonetheless that the case demands a custodial sentence. Only then will it be able to attach a hospital direction.
The right reverend Prelate was concerned that those who need hospital treatment should receive it. We now have greater flexibility. There is no longer any need to choose between hospital and prison. Although there is a facility to make a hospital order under the previous Act, we propose also a hybrid arrangement which recognises the culpability of committing crimes which must be established for the purpose of a conviction but which recognises also the medical needs of the individual.
As I said, the amendment would render the court's decision meaningless. A custodial sentence which can be converted to a hospital order at the doctor's discretion is no different in effect from the hospital order which the court has rejected as inappropriate. It would be quite wrong to allow the doctor to override the sentencing court's decision in that way. But again, I give the assurance that what is important is not only addressing the offence but also addressing the medical needs of the individual offender.
I do not imagine that my noble friend intended the effects which I have described when proposing his amendments and I hope that they will not be pressed.
I should like to bring home to the Committee what I believe to be a serious lacuna in the arrangements behind the amendments presented to the Committee by
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the noble Lord, Lord Dubs. They would be a recipe for automatic release at any time. That automatic release may be at a time when a doctor has decided that he can do no more for the patient or when the patient has completed a session of treatment. Therefore, it is a recipe for automatic early release. In the case of some serious offenders, the medical treatment may have been found to be not beneficial or it may have been completed. It may be that a person is found to be untreatable. He would then be released and may re-offend without having served the sentence appropriate to the offence and without proper release arrangements being made. I do not believe that the Committee should be invited to accept that. The flexibility afforded by the Bill is very important.
My noble friend Lord Mottistone touched upon an important question. My noble friend has a very real concern for people who fall into the category of mentally ill but, nevertheless, he has always been realistic when referring to the public interest and the public safety interest. Where does the protection of the people and the protection of the public fit into the thinking behind the amendments? That seems to me to be a very real question which must be in the minds of those people who may feel an urge to support them.
Lord Alderdice: Perhaps I may briefly respond to the matter raised by the Minister. With many of those who come forward who are mentally ill, the truth is that their mental illness may only be somewhat mitigated by the treatment that is available. But, of course, it is also the case that where people by the nature of their mental illness are deemed to be a danger to themselves or others, it is entirely possible to invoke mental health legislation and ensure that they stay in hospital as long as is necessary, even beyond the question of any particular term of imprisonment if there is a real question of them being at risk.
While listening at an earlier stage, I was interested to learn that noble and learned Lords who are senior judges feel that they would be forced as professionals to make decisions that they did not believe in professionally because certain requirements were being laid upon them. The dilemma that is now being created for other professionals—and I speak of course as a psychiatrist in respect of my colleagues in forensic psychiatry—is that they are being pressed in the direction of having to take decisions which they do not believe they should be taking.
It is not possible to decide at an early stage what will necessarily be the course of the illness, how things will work out or whether or not the treatment will be effective. Indeed, it is not always possible to make such a decision at an early stage. So far as concerns the protection of the community, one of the greatest concerns is that if we do not abide by the professional treatment of such patients, they will come out less well treated and, by dint of their illness and other matters, they will be more likely to offend; they will be more likely to get into difficulty and the public will be less well protected. Sometimes, by setting things in stone, you can be less flexible and responsive to changing

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needs. In truth, in the long run, there will be less protection for the community than would appear to be the case on a more superficial reading.
Lord Hylton: I listened carefully to the Minister's reply, and I noted particularly what she said about extending interim hospital orders from six to 12 months. I am sure that that is a valuable extension and that it will give room and scope for better clinical judgments. However, I should like to invite the noble Baroness to consider the actual wording of Amendment No. 108 and, in particular, the combination of the words,
"medical treatment has substantially alleviated the mental condition of a person",
in conjunction with the "restriction order" mentioned in the last line of the amendment. Can the noble Baroness tell the Committee whether, in her opinion, that combination of things is likely, at least in some cases, to be sufficient protection for the public at large?
Lord Dubs: I very much agree with the comments made by the noble Lords, Lord Hylton and Lord Alderdice. The Minister has posed a question. I appreciate that we are dealing with a difficult area; there are no simple answers as to how to deal with mentally disordered offenders. Indeed, I am conscious that, throughout the world of mental health, clinicians are having to make difficult decisions all the time as regards people who are mentally disordered and who are not offenders in terms of when it is safe to release them. That means "safe" both for the individuals being released and safe for the public. Such difficult decisions are the stuff of the day-to-day work in the mental health field. Therefore, I am under no illusions that we are dealing with a very difficult area and I do not pretend that the answers are straightforward.
However, perhaps I may put one or two further points to the Minister. The noble Baroness indicated that the court would have at its disposal much advice about the mental state of a particular offender and that the court would take such advice into account when determining disposal. That is absolutely fine, if such advice is available and, in many cases, I assume that that would be the case. But, as the noble Lord, Lord Alderdice, said, the point behind the amendments is that it is not just a case of what happens at the outset when a person is convicted of an offence; it is the fact that there might be a period of several years during which clinicians would oversee the treatment of an offender in a secure unit. After a period of several years of such treatment, those clinicians would, I believe, be in a better position to decide the best way forward for that individual as opposed to a decision made by the court at one point in time when the offender was convicted. Indeed, I believe that we would all have a little more confidence in a diagnosis and a prognosis made after several years of experience in a secure unit with a patient.
In my view, the amendments have merit. I put them forward because I believe that protecting the public is essential. After a period of time in a secure unit and after being returned to prison and subsequently released, an individual might be more dangerous to the public than if he had not had that period in prison but had been
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released when the clinician in the secure unit thought it safe for the public that he should be released. I repeat, it is a very difficult decision to make. But, on balance. I still believe that the thrust of the amendments would make the public safer than would the current provisions in the Bill.
8.45 p.m.
Viscount Colville of Culross: I should just like to add a few words to the debate. I have to deal with such cases, although, happily, not all that often. I listened with enormous interest to the contributions made by the noble Lords, Lord Dubs and Lord Alderdice, from their different disciplines and different backgrounds. They are both interested in the mental health field. I believe that the noble Lord, Lord Alderdice, said that the judiciary is being threatened by some parts of the Bill into making decisions that it might not want to make.
As a matter of fact, when you have a case of this kind and you have to decide between a hospital order, with or without a restriction under Section 41 ←and, if you are making such a restriction, you have to have oral evidence from at least one qualified doctor before you can do so because you have to decide how long it is—you have the choice between making a Section 37/41 order under the Mental Health Act, or passing a prison sentence. If you make an order under that Act, whether or not it is accompanied by a restriction order, that is the end of the court's involvement in the case.
Although it is a long time ago, I well remember a case of a psychopath where the courts had, I believe, wholly conscientiously made a hospital order. After a very short time indeed the doctors, on good advice, had all said, "We are very sorry, this man is not treatable". So he had to be released; and, indeed, he would have had to be released even more so now, because I am talking about the days before the current legislation and before the days of "X" in front of the court at Strasbourg since when the mental health review tribunals have been given absolute powers to discharge—or conditional powers to discharge.
However, in that case, there was absolutely nothing that could be done because the court had had to take the view—and, indeed, it was a psychopath and these are very difficult cases—that the only option was to make a hospital order. That man walked out of the hospital. It was a very worrying case and there was a great deal of danger, especially to children. It was a very worrying matter that there was not the flexibility either for the Home Office at that time or, indeed, for the courts to establish a system whereby you combined the two.
I do not think that the right reverend Prelate need worry that someone who falls under this jurisdiction will get a double dose of treatment; that will certainly not be the case. If a determinate sentence is passed, whether that is served in hospital or in prison, it will be the same sentence. We shall come to that in due course. If it is an indeterminate sentence, the ordinary rules will apply, and the noble Lord, Lord Belstead, and his colleagues will deal with it.
I believe there is a gap at the moment in the powers that the courts have. They have to make an irrevocable decision, if they think it is a case for a hospital order,

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and that cannot be reversed. However, it does not work the other way round. If a prison sentence is passed, it can be converted by the Home Office into a transfer to a mental hospital, and then the same rules apply. But, if a court is confronted with a case where it appears that a hospital order is the proper thing to impose, and it imposes that, there is no way of converting that into a prison sentence. I think that is what this matter is about.
This is a proper amendment and it is not a provision that will be undertaken lightly by the courts. These decisions are extremely difficult and they are taken on learned advice from people such as the noble Lord, Lord Alderdice, and his colleagues. They are not taken without a great deal of care. As I say, at the moment there is the one obstacle that, if a hospital order is decided upon, that is it; it cannot be converted.
Baroness Blatch: The one thing that unites all of us in this Chamber is the difficulty of this issue. The noble Lord, Lord Alderdice, mentioned placing judges and doctors—particularly medical professionals—in difficult situations where they almost require the wisdom of Solomon to make decisions. However, I think it was the noble Lord, Lord Dubs, who said that that is the stuff of the life of a judge and of medical people, who make difficult decisions on an almost daily basis. I do not make that remark flippantly. We all appreciate just how difficult those decisions are.
I am grateful to the noble Viscount for what he has said. It was, in effect, another way of asking what the noble Lord. Lord Alderdice, had asked; namely, what do you do when the courts impose a hospital order? There is nothing in the amendments that refers to a timescale. Under the existing provisions, a person could have committed a serious offence and have been directed to hospital under a hospital order for something which otherwise could have attracted a long prison sentence. After a relatively short time, the medical professionals may reach the view that the person is either untreatable or the treatment he has received has not worked. In that case, the doctor may block a bed and turn the hospital into a secure unit for that person. However, I do not think he would have any right in law to do that. The doctor would simply have to allow that person to walk out of the hospital. That is the dilemma that we have grappled with.
First of all, culpability would have to have been established by the courts in coming to a view about a sentence. The courts have the problem of imposing a sentence that fits the crime; in other words, taking into account the seriousness of the offence and reflecting that in the period of time it would have attracted had the person involved not been mentally disordered. If the person concerned requires treatment or assessment, he will be sent to hospital under a hospital direction. As I say, if a doctor found that he could not give that person further treatment or that the treatment was having no effect, there is the problem of whether to send that person to prison. That is possible under our flexible arrangements. If somebody is sent to prison it will be possible to return him to the hospital at some stage for further treatment if it is felt that he would benefit from
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treatment. I argue that the flexibility that exists under this Bill meets many of the concerns that the Committee has expressed.
The noble Lord, Lord Alderdice, referred to an offender being detained under existing mental health legislation and to doctors being placed in a difficult position. The problem with relying on the 1983 mental health legislation—which has been mentioned by the noble Viscount—to protect the public is that, in the more difficult cases that we are discussing, offenders cannot be detained under the legislation. The noble Lord, Lord Dubs, appeared to be talking about the more serious offenders, as he referred to many years of medical treatment. Therefore one has to assume that the original offence was serious.
A hospital direction is a possibility for an offender who has received a prison sentence. A doctor's dilemma in sending such an offender to prison is no different from that which arises if a prisoner has been transferred to hospital under the existing legislation. The noble Lord, Lord Hylton, asked about the restriction order. I believe that the noble Viscount mentioned that in passing. The court will already have decided that a hospital order and a restriction order do not provide sufficient protection in the few cases where a hospital direction is made. Therefore that matter will have been considered. A hybrid order will be put in place if that is considered more appropriate.
The noble Lord, Lord Dubs, said that the doctor knows best what the future of the patient should be. If treatment continues to be needed and can be provided by medical professionals, that person will stay in hospital, or even be returned to hospital if that becomes necessary. If that person is ill in prison, he can always be returned to hospital for further treatment.
I do not want this debate to be seen as me, on behalf of the Government, versus the rest. I end where I began. What unites us all is the dilemma involved in this matter. However, we believe that the flexibility that has been provided in the Bill will allow the courts greater opportunities to address the varying needs of mentally disordered offenders.
Lord Dubs: I thank the Minister for her full response. I shall wish to think hard about what the Minister has said when I read Hansard. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 107 and 108 not moved.]
Clause 43 agreed to.
Clauses 44 to 46 agreed to.
Lord Dubs Lord Dubs moved Amendment No. 108A:
After Clause 46, insert the following new clause—
ESTABLISHMENT OF COURT PSYCHIATRIC ASSESSMENT SCHEME
(" .—(1) The Secretary of State shall by regulations make provision for the establishment in magistrates' courts of schemes which provide for the psychiatric examination on court premises after conviction and before sentence of persons who are or appear to be mentally disordered.
(2) Regulations made under this section may be made so as to apply only in specified areas.").
The noble Lord said: I think it is generally agreed that too many mentally ill and mentally disordered individuals are in our prisons, and that prison is not necessarily the right place for a person with a mental disorder. Various surveys have been undertaken to establish the truth of that proposition.
In December 1996 the British Medical Journal published a research study of 750 male remand prisoners in 13 adult prisons and three young offender institutions. That study found that psychiatric disorder (widely defined) was present in 63 per cent. of inmates. Apart from substance abuse, which was diagnosed in 38 per cent. of cases, the main diagnoses were neurotic illness, 26 per cent., personality disorder, 11 per cent., and psychosis, 5 per cent. The researchers judged that 9 per cent. needed transfer to an NHS hospital.
Other studies have been undertaken which support that general conclusion. The psychiatric liaison service at Clerkenwell Magistrates' Court published a study in 1991. The psychiatrists attending Clerkenwell court recommended hospital admissions in 39 of the 80 cases. The average number of days from arrest to admission for those who reached hospitals through the scheme was 8.7. In contrast, for those remanded to Brixton Prison, the average time from arrest to hospital admission was nearly 51 days. Having a proper assessment at the level of the magistrates' court not only helps the court in its disposals but also gets treatment carried out far more quickly and is of widespread benefit.
Some schemes are already in existence. The amendment ensures the availability throughout the country of psychiatric examination,
"on court premises after conviction and before sentence of persons who are or appear to be mentally disordered".
I believe that the amendment commends itself. However, perhaps I may make a few comments in support of the provision. The Law Society and the Royal College of Psychiatrists are keen on such court based mental health assessment schemes because they ensure early identification of defendants suffering from mental disorder and provide magistrates with appropriate information and expert advice to assist them in the exercise of their powers.
During the previous debate, the Minister talked about courts having the benefit of such advice. In that case she referred to courts for more serious offenders. I refer to magistrates' courts. For magistrates' courts, decisions involve, as in other cases, balancing the mental health needs of the defendant against the interest of public safety and the need to minimise the likelihood of reoffending. Such a scheme gives magistrates information about all possible options in the disposal of such an offender. At present, the service is patchy. If the amendment were to become law, it would assist throughout the country.
There are some harsh instances of mentally ill people in prison. A letter was sent to one of my noble colleagues from a family whose son was in prison. I do not wish to refer too much to the details. He suffered from a form of mental illness. He was murdered in the prison cell by another prisoner who was also mentally ill—a very tragic experience indeed. The parents who
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wrote the letter suggested that had there been a proper system of assessment that outcome might well have been prevented. That was an extremely sad and tragic case. But I believe that the experience of magistrates' courts is that many mentally ill or mentally disordered people would benefit if such assessment schemes were on court premises. I beg to move.
9 p.m.
Baroness Blatch: Again there is little between us on this issue. The importance and value added by such schemes are not in doubt. The value of mental health assessment schemes at magistrates' courts is fully accepted by the Government. There is no need for legislation to promote such schemes which are being readily set up in response to specific local needs. However, I respect what the noble Lord seeks to achieve. He is trying to chivvy on this policy. I wholly accept that.
The Home Office has been active in encouraging its development. Guidance was issued in 1990 and 1995, and funds made available to assist with the salary costs of medical staff who attend court. Support has increased from £500,000 in 1993 to over £1 million this year, and additional funding will be available from the next financial year.
In 1990 there were a handful of local arrangements. Now there are some 130 schemes already in operation around the country. We are helping to pay for 53 this year, and more will be funded from local resources.
It is important not to be prescriptive about how these schemes operate. I do not believe that the noble Lord argued that point. They are local initiatives, and it would be unhelpful to tie the hands of local agencies. They are best placed to devise the right response to local needs and to make the most effective use of local resources.
It would be a step back to restrict assessment to the pre-sentence stage, as this proposed clause would do. That would limit examination to convicted persons and exclude people on remand. A major benefit of assessment schemes is the early identification of mental disorder and the availability of advice to the court at first hearings. This can avoid unnecessary remands to prison.
This amendment is unnecessary. There is no dispute over the value of court assessment schemes. But prescriptive central regulation is not needed to promote what is already being achieved at local level. There has been an enthusiastic response to Home Office encouragement and financial support to get new schemes off the ground. These have quickly demonstrated their effectiveness, including their cost-effectiveness. But to be durable, they need to be part of a wider local inter-agency strategy for dealing with mentally disordered offenders. In that way, their success and continuation are likely to be assured.
We agree with what the noble Lord seeks. We should like to move faster if we possibly could. We believe that local initiatives are best encouraged. We are working through NACRO in research and promotion projects.

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We need no prodding in this respect. As always, it is a matter of making sure that the resources match the provision.
Lord Dubs: I thank the Minister for her helpful reply. As a general proposition I would say that governments always need prodding, so I differ from her in that respect. However, it was a helpful reply. I am pleased she made the point about the need for prisoners held on remand. I had wanted the amendment to include that, but I understand that there are difficulties as regards the Long Title of the Bill. Otherwise the amendment would have included "remand". I understand from that that the Minister sees such schemes as applying to prisoners on remand as well as to convicted prisoners. Therefore beyond my wish that we make faster progress towards establishing those schemes, there is no difference between us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 108B:
After Clause 46, insert the following new clause—
REPORT ON COMPENSATION PAYMENTS TO VICTIM
(" . It shall be the duty of the Secretary of State to lay before Parliament within one year of the passing of this Act a report containing an assessment of the feasibility of arrangements for the payment to the victim, at the time when a court makes a compensation order, of the full amount of compensation ordered by the court.").
The noble Lord said: The new clause prods the Government to make amends for their treatment of the victims of crime when they virtually halved the budget of the criminal injuries compensation board. As I recall—it may well still be the case—when an order was made by the criminal injuries compensation board a compensation order made in the magistrates' court or the Crown Court was taken into effect. At the time the award is made, anything that is outstanding under the compensation order will then be collected and retained by the court itself. I see that the noble Lord, Lord Carlisle, nods his assent to that proposition so I assume that it is still the practice.
This clause suggests a feasibility study which would try to ensure that the victims of crime received a lump sum from the magistrates' court or the Crown Court at the time of the disposal of the offender. The suggestion is that, instead of receiving the money in dribs and drabs over a long period of time, or not receiving it at all, the court itself should pay out a lump sum and then be responsible for collecting it from the offender through the usual court system. It is an idea which this Government proposed in the Green Paper, Punishment, Custody, and the Community in 1988. A White Paper, Crime, Justice and Protecting the Public published in 1990, states:
"At present, many offenders pay compensation by instalments, which are then sent on by the court to the victims. There is considerable support for the idea that when a compensation order is made, the court should be able to pay the total sum awarded for the victim immediately, and then recover the money from the offender".
The Parliamentary All-Party Penal Affairs Group, in a report in 1996 entitled Increasing the Rights of Victims of Crime, said that it supported the proposal in principle. It continued:
"However, we recognise that without an improvement in the enforcement of compensation orders and fines it has substantial resource implications: at present the annual shortfall between the amount of compensation orders imposed and the amount collected has been estimated at £18 million".
In other words, compensation orders exceed the amount collected by £18 million per annum. That is the kind of level of resources that would be required to implement a scheme of this sort.
It has to be said in relation to that figure that, first, it is only a relatively small proportion of the amounts of awards made annually now by the Criminal Injuries Compensation Board; and, to the extent that the court makes a lump sum award initially when the offender is disposed of, that would be taken into account and set against any money that might otherwise come from government funds through criminal injuries compensation payments. Therefore it is not a straight payment out of £18 million per annum. There would be set-offs against that which would reduce the figure very considerably.
The benefits of such a scheme can be imagined. Victims complain, perhaps less now than they did, about delay over the payment of awards under the CICB scheme. They are also very concerned to see that the recompense that they receive is at least partly from the pocket of the person who caused the particular injury to them. So from all points of view it is desirable that victims should receive their money promptly and that the sums should be collected through the court system and be retained by the courts themselves. I beg to move.
Lord Carlisle of Bucklow: An issue as complex and far-ranging as this is difficult to decide at this hour of the night at the end of the Bill's passage through this place. As the noble Lord, Lord Thomas, said, at present if a compensation order is made by the court in favour of the victim of a crime of violence, and if that victim then applies to the Criminal Injuries Compensation Board, the board deducts from the amount which it grants that which the person has received under the order made by the court.
As the noble Lord said, that means that, since usually only part of the money has been paid, that part is deducted financially from the order and the board then takes over the responsibility of attempting to enforce the remaining part of the order against the individual. It is a cumbersome organisation, but we do recover a certain amount of money.
I have a lot of sympathy with the argument of the noble Lord, Lord Thomas, that people want their compensation early and if we could devise a scheme whereby they received a sum of money quickly rather than paid over weeks, it would be to the advantage of the victim. The difficulty is how the court arrives at what that figure of compensation should be, and also what area it would cover. Perhaps the whole question of the relationship between the compensation

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paid by the individual and the compensation covered by the state through the Criminal Injuries Compensation Board deserves detailed study.
I believe that the Minister will confirm that although the delays are bad, they are better than they used to be. We are conscious, as we are always reminded by Victim Support, that the desire of the victim is to get something quickly rather than perhaps a greater sum at a later date.
9.15 p.m.
Baroness Blatch: Two points trouble me about the amendment. First, there is no compensation clause in the Bill. We are committing a new Parliament to considering a new issue in 12 months' time: to carry out a feasibility study and to come forward presumably with the results of that study on a compensation scheme. That is the first point: the proposal is not linked to any clause in the Bill.
Secondly, it is a considerable and open-ended extension of the criminal injuries compensation legislation because we are not talking specifically about criminal injuries. This concerns any compensation order made by any court to any offender which would be met immediately by the court from state funds. It would then have to be recovered. We are talking of a pretty considerable blank cheque on the part of the state.
There have been repeated proposals for immediate payment of court compensation orders in the past and the arguments have been rehearsed on many occasions. Immediate payment would of course remove from the victims the problem of spasmodic and incomplete payment of compensation by offenders. But the objections—primarily cost—have proved compelling.
I take absolutely the points made by the noble Lord, Lord Thomas, and my noble friend Lord Carlisle about frustration over the speed at which payments are made. That will always be an issue and I pay tribute to the progress that is being made. I know that my noble friend would wish to make yet more progress in clearing the backlog and getting on top of current claims.
There are no central records of default, but we have estimated that the cost of immediate payment could be up to £10 million a year to start with, taking into account loss of interest on the sums awarded and outright loss through amounts written off as a result of default and, indeed, as a result of the Criminal Injuries Compensation Board finding at the end of the day that a payment is not due. That initial cost could be expected to escalate if the Government agreed to underwrite compensation orders at the taxpayers' expense.
Apart from the cost argument, underwriting compensation orders would appear unfair to others with equal or perhaps greater need, for example, beneficiaries of maintenance or debt orders. It could also be unfair to victims who were not awarded compensation, for example, where the offender had been imprisoned and there was no prospect of obtaining or enforcing payment, or in cases where there was uncertainty or dispute as to the amount of compensation which it might be appropriate to award. Furthermore, immediate
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payment of compensation from public funds would also tend to distance the offender from the sense of having wronged the victim.
Thus, while we can see the superficial attraction of the underlying idea, we find the practical objections compelling. We think the better answer is for the courts to set compensation at an appropriate and reasonable level, and then to enforce payment vigorously. It is, after all, the courts' responsibility to ensure as far as possible that the penalties which they impose are correctly assessed and are made to stick. They already have the powers they need to do this with respect to compensation orders.
It is my understanding that about 80 per cent. of compensation orders are met by the offender and about 20 per cent. are not met either in part or in whole. It will be clear from the foregoing that we see no good purpose in revisiting the issue yet again. I cannot imagine that we would arrive at a different conclusion. I therefore ask the noble Lord not to press his amendment.
Lord Thomas of Gresford: I am grateful but somewhat disappointed at the Minister's considered reply to the proposal. I sought through the amendment not to put in place a scheme that would immediately cost money, but to ask for a feasibility study so that all the issues to which the Minister referred could be properly examined and a report could be made on which action could be taken.
I have aired the matter as far as I propose and I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford had given notice of his intention to move Amendment No. 108C:
After Clause 46, insert the following new clause—
DEFERMENT OF COMMENCEMENT DATE OF CUSTODIAL SENTENCE
(" .—(1) When a court passes a custodial sentence, it may order the deferment of the commencement of that sentence until such date as it shall specify, not being more than six months after the date on which the deferment is announced by the court.
(2) The power conferred by this section shall be exercisable only if the court is satisfied, having regard to the nature of the offence and the character and circumstances of the offender, that it would be in the interests of justice to exercise the power.").
The noble Lord said: In view of the time, I prefer to reserve my remarks on this amendment until a later stage.
[Amendment No. 108C not moved.]
[Amendments Nos. 108D and 108E not moved.]
Clauses 47 to 50 agreed to.
Clause 51 [Short title, commencement and extent]:
Earl Russell Earl Russell moved Amendment No. 109:
Page 34, line 26, at end insert—
("( ) Sections 35 and 36 shall not come into force until the Department of Transport and the Department of Social Security have calculated the resultant cost to the Department of Social Security, as required by Treasury guidelines, and have reported the result, and the methods, of such calculations to Parliament.").
The noble Earl said: The noble Baroness gave us a brief preview of the Government's reply to this amendment when we debated Clause 35 stand part on Thursday last. I have read and re-read recently what she said then. The point she made was that the amendment, in her view, would be self-defeating. The noble Baroness said that it would prevent the conducting of pilot studies, which would prevent the possibility of arriving at accurate costs.
I do not take that point as conclusive but I take it extremely seriously. I therefore say to the noble Baroness that if she will give me an assurance that, after the pilot studies, the costing assessment will be made and reported to this House before any further disqualifications are made under Clause 35 of the Bill, I will beg leave to withdraw my amendment and say nothing further. If the noble Baroness can give me that assurance, it will meet everything I have to say.
However, if she cannot, there are still some points to be made which are of substance. It is true that one cannot assess the costs of disqualifying people from driving with complete accuracy until pilot studies are made. But it is true also—I am sure that the Treasury has already made this point—that if one is introducing a measure, one needs at least a ball park estimate of the costs it will incur. One needs to know whether by disqualifying people from driving we are, in particular, increasing the social security budget by preventing them from working. There are ways in which such estimates can be made. I am not only concerned with the figures; I am concerned also with how the Government arrive at the figures when they set out to estimate the cost to one department of a measure introduced by another.
I have spent a lot of time questioning the Department of Social Security about how it undertakes those assessments. I have not received particularly lucid or transparent replies. Therefore, while the amendment is before the Committee, I hope to obtain some idea of how the Home Office will set about assessing the costs to social security of depriving people of their driving licences. For example, is it able to do studies which find out what proportion of the population today cannot go to work by public transport? It is a question to which I should like an answer and to which sample surveys could supply at least an approximation to an answer.
Will the Home Office study the rate at which people come off benefit? Will it compare the rate at which people with access to public transport come off benefit with the rate at which people who do not have access to public transport come off benefit? Among people without access to public transport, will the Home Office compare the rate at which car owners come off benefit with the rate at which non-car owners come off benefit?
Those are all perfectly possible exercises. If the Home Office does not intend to address them, I should like to know what other exercises it intends to attempt. The whole issue of costings is shrouded in too much mystery: we make something of a fetish of it. If we want—as I am sure the Government want and as I want—people to make reasonably realistic estimates of the costs of what they propose, we cannot keep the
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methods by which costings are arrived at a secret. That is often the most interesting and fascinating part of the whole exercise. I hope at the least that the Minister can tell me how the Government intend to address the question of working out the costs of Clause 35 to other government departments. I beg to move.
Lord McIntosh of Haringey: The noble Earl tempts me to my feet by talking of survey research. I am a great devotee of it, having earned a living all my life through it. How one can possibly estimate the costs of a provision which provides for the courts to use driving disqualification as a penalty if one does not know how often or on what occasions they will use it and on what kind of people they will impose it is beyond me.
Earl Russell: Cannot one attempt to assess the average cost per disqualification? Would not that be a start?
Lord McIntosh of Haringey: No, it would not—if I may comment again as a survey researcher. One could say it is £100, £1,000 or £20,000. But if one does not know whether it is happening once, 1,000 or 20,000 times, it does not help.
Baroness Blatch: I am deeply grateful to the noble Lord, Lord McIntosh. An almost perverse result of such an evaluation comes to mind. Someone could confess to using a car a great deal where disqualification would represent a very serious financial loss, whereas for someone on social security the actual financial loss might be deemed to be very little.
The main evaluation will be the effectiveness of disqualification from driving as a punishment and a deterrent to committing crime. One does not have to wait for these pilot schemes to carry out the kind of survey the noble Earl would like to see carried out, even if it were possible. I agree with the noble Lord, Lord McIntosh—I just do not believe it is. But even if it were, we already have disqualification from driving as a penalty at the disposal of the courts. Except in very exceptional circumstances, the magistrates' courts do not even have flexibility to consider whether someone needs or does not need a car to go to work. Disqualification is automatic in drink-driving cases. I have sat in court and witnessed the same disqualification from driving dispensed as a penalty. I have seen it having very different effects as between someone who can afford to have a chauffeur or have someone drive him around and someone who is self-employed and finds himself unable to work.
We have said in earlier discussions that we would expect magistrates to consider disqualification from driving along with other penalties. The kind of factor we would expect them to take into account is whether the person is entirely dependent on his own transport to get him to and from work. It would be an insensitive magistrate who awarded disqualification from driving as a penalty to someone who could not get to work rather than resorting to another form of community sentence or other sentence available to the court.

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I cannot give the assurance the noble Earl seeks. I understand his concerns but I hope he will allow us to leave it to the courts to balance the need for punishment and the sensitivity of the appropriateness of the disposal the courts would use. What I can say to the noble Earl is that we shall make the evaluation public for all to see.
Earl Russell: I congratulate the noble Lord, Lord McIntosh of Haringey, on his rehearsal. He sounded exactly like Prince Hal trying on the crown. I also congratulate the Minister on proving that this exercise was premature. I listened very carefully to her reply. I take her point that she will be primarily concerned with the effect of the penalty as a deterrent. But she went a little way at the end of her reply to reassure me that that is not the only factor that will be taken into account. I take her point that most magistrates would not impose this penalty on someone who could not otherwise go to work. But it would help if we could be certain that it was a requirement on the magistrate to inquire before passing sentence whether that was the case.
I have the greatest respect for magistrates. However, like all the rest of us, magistrates come in all shapes and forms. There is no profession on earth in which everyone is good. So, if there could be a requirement on the face of the Bill that magistrates should take that information into account, it would go a long way to reassure me further. That, I think, is a matter for a further amendment. Meanwhile, I beg leave to withdraw this one.
Amendment, by leave, withdrawn.
9.30 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 109A:
Page 34, line 40, leave out ("5") and insert ("4A").
The noble and learned Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 110A to 110F and 110H to 110P and also to Amendment No. 113A. This group of technical amendments is designed to put beyond doubt the application to prisoners who have been sentenced abroad and repatriated to the United Kingdom the legislative provisions which relate to their early release.
The amendments make clear that repatriated prisoners are to be treated, in terms of their eligibility for early release and any licence conditions, according to the legislation in England and Wales (or as the case may be Scotland), applicable to prisoners who were sentenced in this country on the same date on which the repatriated prisoners were sentenced abroad. That will ensure that repatriated prisoners continue to be treated as near as humanly possible on a par with equivalent prisoners sentenced here.
Thus a prisoner sentenced abroad prior to the coming into force of the Criminal Justice Act 1991, but who was repatriated here after the coming into force of that Act, would be treated on return here as an existing prisoner—that is, in accordance with the transitional provisions in the 1991 Act. He would benefit from eligibility for parole at the one-third point in his
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sentence rather than be treated under the provisions of the 1991 Act under which parole eligibility for long-term prisoners is at the one-half stage.
The amendments put forward make similar alterations to the Scottish legislation, which is slightly more complex than is set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993. The additional complication arises because in that Act there were no transitional provisions. However, the objective is to achieve the same result for prisoners who are repatriated to Scotland as for those who may be repatriated to England and Wales.
No amendments are necessary in relation to Northern Ireland, which has no equivalent early release provisions to those applying in England and Wales and Scotland. The amendments are numerous and fairly detailed, but their objective is quite clear and I hope that they are acceptable to the Committee. I beg to move.
Lord Dubs: The amendments are detailed and they sound a bit technical. However, can I draw comfort from what the Minister said that the intention is that no prisoners who are repatriated will he disadvantaged in any way and that they will have the same rights as previously? I believe that I have got it right and I hope I have not done injustice to what the Minister said. I would like to carry that principle into Amendment No. 110G when I move it.
Lord Mackay of Drumadoon: The noble Lord is quite correct, subject to the qualification that I indicated that it would be as near as possible. It is not possible to achieve exact equality, but that is the general objective. I fully accept that there are implications for a later amendment.
On Question, amendment agreed to.
On Question, Whether Clause 51, as amended, shall stand part of the Bill?
Viscount Colville of Culross: I gave notice earlier on this evening that I wanted to ask a question about Clause 51. I hope that the message got through to the noble Baroness. My question is about the training which will be necessary before commencement. I am assuming that in due time commencement orders will be made to bring into effect the various provisions in the Bill. I did not hear the noble Earl, Lord Russell, last Thursday because I was myself the subject of a very useful piece of judicial training by the Judicial Studies Board. There is not a word in the financial effects of the Bill about provision for training. I do not believe that it will be just the judiciary who will be involved; the CPS and a considerable number of other people will be involved.
What is the timetable that we are all having to anticipate? The fact remains that there will be a day when the sort of calculations that the noble Lord, Lord Carlisle, has been embarking on, whereby under Clause 22 you pass an equivalent sentence today to what you would have done yesterday, will be implemented. The result is truly amazing. I do not think that any of us will do it in exactly that way; but, nevertheless, there will be a marked difference.

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Before that happens, a number of things will have to take place. The whole of the junior judiciary—and that includes all the magistrates, and certainly people such as myself and all those who sit as Recorders and Assistant Recorders—will have to be trained in the provisions of the Bill in relation to sentencing. They do not normally get more than one sentencing conference a year and there is a limit to what can be put into that one day. There are a number of other provisions in the Bill which will have to be absorbed and applied by the judiciary at all levels before they can properly implement it.
The other difficulty is this: there is in existence—it is of very great help in guiding those who have to pass sentence—an encyclopaedia which does not lay down rules, but it does include all the guideline cases that have been produced by the Court of Appeal over a period of time and gives a selection of other decisions by the Court of Appeal either on appeal against sentence or on the Attorney-General's references, which gives one an idea of the range of sentence within which one should be working. It also does something to help those who are prosecuting to decide on the type of offence that they are going to put on the indictment that comes before the court.
None of that will be quick. There is no provision whatever for it in the Financial Effects of the Bill. It may be that in the Government's view it is chicken feed, but from the point of view of those who have to carry out the legislation, it may be cheap in terms of what the Treasury has to pay, but it is critical for them as they attempt to do that which Parliament has laid down. I may have missed something because I have not been present in the Chamber all the time and if so, I apologise to the Committee, but my colleagues and I would be grateful to know something of what the noble Baroness has in mind in terms of a timetable for the implementation of the Bill, and particularly the provisions of Part II, Chapter I, which includes Clause 22, and a number of provisions which are rather more complicated than those in the first part of the Bill. If the Minister could tell us about that, we would be greatly comforted by what I imagine will be a period of time during which we can learn how to implement the Bill's provisions. It would be most helpful if the Minister could give me an answer on that.
Lord Carlisle of Bucklow: The whole Committee should be grateful to the noble Viscount, Lord Colville, for raising this vitally important matter on Clause 51 which deals with the appointment of the different days for the introduction of different parts of the Bill. The noble Viscount pointed out the degree of training of the judiciary that will be needed before the Bill can be implemented and the time that that will take, yet nowhere in the Bill is any recognition given to that point.
I should like to raise another point and to ask the Minister whether she will give the Committee at least this assurance—that it is not the Government's intention to bring into force any part of the Bill until adequate resources and provisions are available to meet its effects. I say that for this reason: as we have already
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discovered during our earlier debate on Clause 7, apparently against the stated intention of the Home Secretary—or so he always says—the Bill will increase the average time spent in gaol by every prisoner serving less than four years by at least 11 per cent., which in itself means an increase of several thousand in the daily population of our prisons. I suggested to my noble friend that since the White Paper claimed that that part of the Bill was intended to be neutral in terms of prison population it was difficult to believe that it had been taken into account in the chapter dealing with resources. It was suggested that a number of new prisons would be required to meet the provisions of the first part of the Bill. It is clear that if we move to a system of real time sentencing of the nature proposed by the Bill, it will lead to a substantial increase in the prison population, despite the proposals in Clause 22 of the Bill.
Realistically, how long does the Home Office believe that it will take to provide the necessary resources to meet the demand? It says glibly that it will require so many new prisons and they can be built in such and such a time. The noble Viscount, Lord Colville, well remembers that in the early 1970s when he and I were fellow Ministers in the Home Office there were problems in changing a prison in the Midlands so that it could take life prisoners, which it did not have the power to do at that time. It aroused enormous local reaction. One cannot easily provide prisons.
In the past few days one has witnessed the reaction to the suggestion that a former Pontins holiday camp in Blackpool should be used as a prison. One has witnessed the reaction of the local authority to the intention to bring a hulk across the sea from America and put it in Portland harbour. The noble Viscount is far more familiar with this because he had to face an angry meeting of residents of the area at the time. Having myself been in charge of prisons for a short time before him, I question whether the glib assumption in the White Paper that the department will just have to build so many more prisons is realistic in a short timescale.
I believe that the Committee is entitled to an assurance that if, the Government, for reasons that I still find difficult to accept, have decided to alter the whole sentencing policy in a way that gratuitously increases the prison population—which is already straining available resources—they have no intention of implementing that part of the Bill until the resources have been provided and the prisons are actually there.
Lord Ackner: The noble Lord, Lord Carlisle, has referred to an 11 per cent. increase in the calculations made before the Bill was debated. There are other matters to be taken into account. The overall figure has been discounted by the Government by approximately 20 per cent. because of the alleged deterrent effect of the provisions that they seek to enact. Everyone on the Opposition side doubts that this deterrent effect is realistic. In so far as the minimum sentence provisions are thought to have a deterrent effect, for the moment it has gone. It is the noble Baroness's own observation that a coach and horses have been driven through the Bill, so that source of deterrence has gone.

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Then there is a further point. It seems to have been the Government's assumption that sentences were accurately defined in terms of a particular figure. They are not. They are a range. It has been pointed out that judges who have been harassed, particularly by the press, with regard to the sentences which they impose at the moment are not likely to tolerate even further harassment when they reduce, as the Government would wish, the sentence by two thirds. They will therefore, I anticipate, sentence at the top of the range, as they are perfectly entitled to do. That will put up the prison population.
Reference has been made to Clause 22. In due course, as a final wind-up, having given notice that I shall seek to attack the whole of Schedule 5, which is the schedule which shows the enormous complication of the transitional period, I will seek to show that to explain that on its own will require a seminar of several days' duration.
9.45 p.m.
Lord McIntosh of Haringey: I do not wish to be tempted into a general discussion of commencement, particularly after the remarks about rehearsals by the noble Earl, Lord Russell, beyond saying that clearly no government can commence any part of any legislation until they have the resources to implement it. We have seen that in respect of the custody of juveniles on remand under the Prison Service.
However, I think that it is worth saying, in the light of what the noble Viscount, Lord Colville, and the noble Lord, Lord Carlisle, have said, that the Minister will know that I have put down Written Questions about the financial memorandum to the Bill. At the moment the estimation of financial effects merely says that the implementation of Parts I and II of the Bill will mean, by the time the process is completed in 12 years, approximately 11,000 extra prisoners and an extra cost of between £375 million and £425 million per annum.
That clearly is not an adequate financial memorandum. One has to have the division between Part I, concerned with mandatory minimum sentences, and Part II, concerned with the abolition of existing parole and admission procedures. My Written Questions have sought the division of those figures as between Parts I and II. Clearly the gross figure was arrived at by adding the estimates for Part I to the estimates for Part II. We are entitled to know what they are if we are to debate these matters properly. My purpose in rising now is to seek an assurance from the Minister that we will have a response to those Written Questions before we resume debate on Report, which I understand will not now be on 13th March.
Lord Mackay of Drumadoon: A number of interesting points have been raised by noble Lords. I shall deal first with that raised by the noble Viscount with regard to training. To set it in context, perhaps I may indicate that the current proposal is to introduce Chapter I of Part II, about which the noble Viscount spoke, some time in the latter part of 1999, which would leave adequate time for training matters to be addressed.
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As has been said on a number of occasions, and I would not wish to demur from it, issues of judicial training are to be dealt with by the judiciary. However, the Government will be interested to know what steps are being taken in that regard. It is a highly relevant factor in deciding when the relevant provisions can be commenced. Others, such as justices clerks, magistrates and many involved in the criminal justice system, will also require to address the issue of training. One imagines that, in order to assist any formal training that takes place, as frequently happens new books and editions of encyclopaedias will be published.
As regard the availability of prison places, the position is as set out in the Explanatory and Financial Memorandum to the Bill. I understand that the Questions referred to by the noble Lord, Lord McIntosh, were tabled today—
Lord McIntosh of Haringey: Yesterday!
Lord Mackay of Drumadoon: They came to our notice a matter of five minutes ago on the basis that they arrived this afternoon. If they arrived yesterday, I apologise for any breakdown in communications. Clearly, they will require to be answered in detail and there is no reason why they cannot be fully answered before the Report stage.
As indicated by my noble friend Lord Carlisle and the noble and leaned Lord, Lord Ackner, the availability of prison places is important. Any government would have to take regard of the existing prison estate and to plans for increasing that estate before bringing the relevant provisions into force.
I await to hear with interest what the noble and learned Lord may say about the extent to which judges will take account of the new provisions in the legislation. I fully accept that there is no precise, determinate sentence which applies to each and every commission of any specific offence. However, I must say with the greatest respect to the noble and learned Lord that if judges were to sentence at the top of the range purely in order to avoid criticism in the media, I should not regard that as a relevant fact for them to take into account. However, I say that as a man who has had only a brief career as a temporary sheriff in Scotland before my immediate predecessor, my noble and learned friend Lord Rodger of Earlsferry, sacked me from that position because I did not sit frequently enough.
Clause 51, as amended, agreed to.
Schedule 1 [Transfer of prisoners within the British Islands]:
[Amendment No. 110 had been withdrawn from the Marshalled List.]
Lord Alderdice Lord Alderdice moved Amendment No. 110ZA:
Page 43, line 19, column 1, at beginning insert ("local authority or").
The noble Lord said: I beg to move the amendment standing in the name of my noble friend Lord Mar and Kellie and to crave the indulgence of the Committee on his behalf. As a result of difficulties in travelling, he was unable to remain until this late hour. I assume that

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he asked me to move his amendment because the schedule component referred to restricts transfers from Scotland to Northern Ireland and not for any personal expertise, which I do not have in regard to this matter.
The amendment refers to the table on page 43 which shows equivalencies between those expressions in the right-hand column, which refer to Northern Ireland and with which I am familiar, and those in the left-hand column, which refer to Scotland. I am informed that the difficulty is that, while the right-hand column refers to the Probation Board for Northern Ireland and the left-hand column to Justices for a petty sessions area, the left-hand column should more properly read "local authority" in respect of Scotland. However, justices for a petty sessions area would apply in the event that the offender moved to England. Therefore, it is not a matter of taking anything out but simply inserting "local authority or" in that part of the table.
I find myself to some extent at the mercy of those wiser and more experienced in this regard, in particular the noble and learned Lord the Lord Advocate.
Lord Mackay of Drumadoon: The noble Lord has my sympathy in having to move this amendment. I had more notice given to me in order to oppose it and I find that it is a very technical matter. But looking at it carefully, I am satisfied that the amendment is unnecessary, and perhaps I should explain why.
Schedule 1 of the Bill sets out new arrangements for the transfer of prisoners and those released on supervision within the British Isles. It enables transferees to remain subject to the legislation in place where they are sentenced. That requires a small amount of translation of the words and phrases used in legislation for different parts of the United Kingdom. That is what is set out in the tables in the schedule.
The amendment proposed seeks to amend the substitution of Scottish expressions used in paragraph 11(6) of Schedule 1. Those are expressions used in Sections 15, 18 and 19 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 which will apply to the supervision of a released Scottish prisoner who is transferred to Northern Ireland.
Section 15 of the 1993 Act operates throughout Great Britain on the basis that a prisoner or his supervising officer may request the Secretary of State that a Scottish local authority or the justices for a petty sessions area in England and Wales be designated as the appropriate body to supervise the prisoner in place of the body first designated.
The Bill replaces the references in Section 15 to English justices with the reference to the Probation Board of Northern Ireland. That would be the appropriate body to supervise a Scottish prisoner who had been transferred to Northern Ireland. The amendment is unnecessary because the Bill would not permit a local authority in Northern Ireland to supervise a released prisoner here. It is also wrong because the 1993 Scottish Act refers to a local authority in ways which do not make sense when applied to the Probation Board of Northern Ireland. One example is that the 1993 Act refers to a local authority's director of social work.
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This is a detailed and technical matter. It is not easy to explain, even in the fairly extensive answer that I have given. But, in view of what I have said and with the assurance that I have looked at this myself and I am satisfied that it is correct, I hope that the noble Lord will not be slow to withdraw the amendment.
Lord Alderdice: I am very grateful to the noble and learned Lord the Lord Advocate for his detailed explanation. My colleagues can refer to that detailed answer in Hansard and, if necessary, can return to the matter. However, I am grateful to the noble and learned Lord for his reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Schedule 2 [Repatriation of prisoners to the British Islands]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 110A to 110F:
Page 48, line 16, leave out ("question") and insert ("following questions, namely—
(a)")
Page 48, line 17, after ("licence") insert ("and
(b) whether or not he is an existing prisoner for the purposes of paragraph 8 of Schedule 12 to the 1991 Act,").
Page 48, line 18, after ("length") insert ("or, as the case may require, commencement").
Page 48, line 40, leave out ("question") and insert ("following questions, namely—
(a)")
Page 48, line 41, after ("licence") insert ("and
(b) whether or not he is an existing prisoner for the purposes of paragraph 8 of Schedule 12 to the 1991 Act,").
Page 48, line 42, after ("length") insert ("or, as the case may require, commencement,").
On Question, amendments agreed to.
Lord Dubs Lord Dubs moved Amendment No. 110G:
Page 49, line 11, after ("Kingdom),") insert ("—
(a) in subsection (3), after paragraph (b) there shall be inserted "or
(c) would result in a prisoner serving longer than two thirds of the term which the Secretary of State would have considered appropriate if the transfer had taken place before the commencement of Chapter I of Part II of the Crime (Sentences) Act 1997.": and.
(b)").
The noble Lord said: The difficulty that this amendment refers to stems from a basic principle in the Bill; namely, that, while prison sentences will not be shortened, the actual sentence imposed by the courts will be less. I hope that I have that principle right because what I am about to say follows from that.
I am referring to prisoners who are transferred from prisons abroad to serve the remainder of their sentences in this country under the Repatriation of Prisoners Act 1984. That is essentially a humanitarian measure which has been accepted widely as being beneficial. It ensures that prisoners in countries with which we have an agreement who are serving a sentence abroad can, if

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they wish, if our government agree and if the foreign government agree, be transferred to serve the remainder of their sentences in this country.
The difficulty and unfairness is that a prisoner sentenced abroad comes back to this country and unless the British maximum sentence for a similar offence is less than that abroad, the prisoner will serve the remainder of that sentence here, deriving all the benefits of parole, remission, early release and so on. If the Bill is enacted, the position will change because the previous practice of applying remission and parole to a foreign-imposed sentence will no longer apply. Therefore, unless we do something about it, such prisoners will actually end up serving longer in prison under the Bill than would previously have been the case.
Therefore, it is paradoxical that foreigners sentenced in British courts and then transferred to serve the remainder of their sentences abroad under reciprocal arrangements will benefit. They will get a shorter nominal sentence in this country under the Bill's provisions and, presumably, that will be taken into account by the prison authorities in their own countries which will then release them earlier. So we have the paradoxical situation that Britons sentenced abroad and serving their sentences here will be penalised by the Bill, whereas foreigners sentenced here and serving the remainder of their sentence abroad will benefit. Clearly that it is not the intention, but it may well be the outcome.
I understand that the matter has been considered by the Government. Indeed, I appreciate the letter written to me by the Minister in which she referred me to a Written Answer given in the other place by a Mr. David Maclean, one of the Home Office Ministers. It was in answer to a Parliamentary Question put by Sir Ivan Lawrence and appeared in the Official Report of the other place on 17th February. That Written Answer refers to a scheme put forward by the Government which is an alternative to the one suggested in my amendment, although it is intended to achieve the same end; namely, to deal with the unfairness to which I have just referred. That is all well and good, except for one sentence in that Written Answer which reads:
"This method of calculating the period to be served in prison will not apply to prisoners repatriated from foreign jurisdiction operating sentencing provisions equivalent to those contained in chapter I of part II of the Crime (Sentences) Bill".—[Official Report, (Commons) 17/2/97; col. 361.]
Therefore, if the foreign jurisdiction has a sentencing system which is not equivalent to the one in the Bill, the Government's formula will apply and the prisoners transferred will benefit. However, if our Government judges that the sentencing provisions in the foreign jurisdiction are equivalent to those in the Bill, the formula suggested by them will not apply. I know that that sounds complicated, but I believe that the principle is very simple.
I believe that the Government have arrived at an interesting and sensible formula for dealing with the difficulty by administrative means. They have then qualified it by the sentence that I quoted. As it is difficult to see how that qualification will apply, I am afraid I am puzzled as to whether the formula put
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forward by the Government will work as well as they suggest or, indeed, in how many instances it will work. Frankly, it would be better if the Government were to drop the qualification and simply apply their administrative formula for dealing with the unfairness to all prisoners transferred from abroad under existing legislation—for example, the Repatriation of Prisoners Act 1984.
Why not apply the formula that the Government have just worked out to all prisoners transferred rather than say that it will only apply to prisoners from jurisdictions that behave differently from that envisaged in the Bill? It is very difficult to see how to apply that qualification. I hope that I have made my point clear. I welcome what the Government have done—or, indeed, what they have suggested they will do—under the administrative arrangements. I only hope that they will drop the qualification. Clearly my amendment is a probing one, designed to get the Government to help us resolve this particular difficulty. I beg to move.
Lord Mackay of Drumadoon: I am grateful to the noble Lord for raising this matter which is of concern. As he correctly said, it was raised in another place and responded to in detail in a Written Answer to which he has referred.
We do not believe that it would be appropriate to treat repatriated prisoners in line with this amendment. That would effectively mean re-sentencing the prisoner or, in other words, moving to a system of converting sentences. As the noble Lord, Lord Dubs, will he well aware, and as many other noble Lords will know, under the convention on the transfer of sentenced persons there are two methods by which the administering state—that is, the state to which the prisoner is transferred—can deal with the unexpired portion of a sentence. It can continue the enforcement of the sentence through a court or an administrative order or it can convert the sentence into a new sentence, thereby substituting for the sanction imposed by the sentencing state its own sanction.
We have traditionally believed that the method of operating the Council of Europe convention, to which the United Kingdom and many other countries are parties, would be impracticable if we embarked upon the approach of converting the unexpired portion of sentences. Our experience suggests that the conversion of such sentences by the receiving state—the administering state—frequently leads to a reduction in the length of time which the repatriated prisoner has to serve. The Government's policy has been to preserve the integrity of our own sentencing system by insisting on the continued enforcement procedure both in relation to prisoners that we are repatriating from this country to another country and, equally, those who are British who are returning to this country, and doing so, of course, as a matter of choice.
It would be quite inconsistent for us to operate one system for incoming prisoners and another for outgoing prisoners. It will not surprise the Committee to learn that other countries take a similar approach and would not be happy to do business with us—if that is the correct term to use—were there to be these differing approaches.

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Having considered the matter carefully we believe that we can administer the sentences of those repatriated here within the framework of the Bill as drafted in such a way as to alleviate the problems which the noble Lord has identified. A repatriated prisoner's sentence would be administered in the following way. At the point of repatriation, the remaining balance of the prisoner's sentence would, as at present, be calculated by deducting from the original sentence passed the length of time the prisoner had spent in a foreign prison, including, where appropriate, any time spent on remand, and also taking account of any remission to which he was eligible for the period he had spent in custody while abroad. However, rather than deeming this balance to be the prisoner's sentence in this country, what is proposed is that the period should be further reduced by taking into account the period of supervision which will be required under the provisions of this Bill.
As the Committee will recall, Clause 13 requires all prisoners sentenced to more than 12 months in prison to undergo a period of supervision equal to 25 per cent. of the term of imprisonment or a period of three months, whichever is the greater. A repatriated prisoner's balance in prison which he would require to serve would be reduced by the period of supervision required in his particular case. The result would be that the total time spent in prison here, when added to the supervision period required, would not exceed the balance of the sentence outstanding in the foreign jurisdiction as at the date of repatriation. In addition, the earned early release provisions in the Bill would apply to a repatriated prisoner. Members of the Committee will recall that these amount to the prisoner being able to earn up to a maximum of 12 days' early release provided he is of good behaviour and co-operates positively with the prison authorities.
The precise effect of calculating sentences in this way will vary from case to case depending on the rate of remission applicable in the sentencing jurisdiction and the stage in the particular sentence at which the prisoner is returned here.
It is important to stress that this new process of calculation would apply only to repatriated prisoners who had been convicted of offences after the coming into force of the provisions of Chapter I of Part II of the Bill. As I mentioned recently, that is a year or two off. Furthermore, they would be applicable only where the sentencing jurisdiction did not have sentencing provisions comparable with those provided for in the Bill. Where sentencing provisions in the foreign jurisdiction were on a par with our own, it would be inappropriate to adjust the balance here in the manner proposed. That is the practical issue which troubles the noble Lord, Lord Dubs.
Each case is looked at on a case by case basis. Once Chapter I of Part II of the Bill comes into force it would involve looking at the sentencing procedure in the sentencing jurisdiction to see whether it could properly be said to be comparable with that which will apply in this country. If it is, then the calculation I outlined would not be necessary; if it is not, it would.
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It is important to stress that any prisoner seeking repatriation from overseas will be provided with full information about the manner in which the unexpired proportion of his sentence would be administered were he to return to this country. This will enable him to make an informed decision as to whether or not he wishes to proceed with his application for repatriation. It is not a question that the first time prisoners will learn how long they have to serve is after they have come back to this country and are locked up in prison in accordance with the appropriate warrant. The procedure makes it clear—it is subject to the provisions of the convention—that full information is available to the prisoner before he chooses to come back.
We believe that these arrangements do not amount to resentencing, to converting the sentence, which is an approach to the administration of the convention we have never favoured. We believe that they will provide fairness. As I indicated, I assure noble Lords that, if each instance is considered on a case by case basis, the concern raised by the noble Lord, Lord Dubs—I understand why he wishes to raise it in Committee—is not one which in practice should have any unfair impact on prisoners who understandably wish to come back to this country to serve the outstanding balance of their sentence.
Lord Dubs: I thank the Minister for his clear explanation. There is so little between us that I wish he could have moved a little in my direction. I accept all his arguments. My amendment is purely a probing amendment. I have welcomed the scheme the government put forward. I believe that it will achieve substantially the aims set down for it.
The only issue—it is one which he did not explain in detail—is as regards the difficult decision that the Government will have to make when deciding that certain foreign jurisdictions have a system equivalent to our own. I believe that he used the word comparable. He said that the decision would be on a case by case basis. If the formula with which the Government have come forward for instances where the sentencing system in the country is different from ours is satisfactory, why not apply it in all instances? That would prevent the Government having to make the more difficult judgment as to whether the sentencing system is sufficiently close to ours for us to take that country's system as opposed to applying the Government's formula.
What the Government are doing is so good that they should do it in all cases. I am asking them to drop the exception. It will be very difficult to know whether any system is equivalent to ours. It will involve a lot of difficult judgments. We are having enough difficulty changing our own system from what it is now to what is envisaged in the Bill. To make detailed judgments about different systems, even in European countries, is unnecessarily complex. Why do the Government not simply drop the qualification and say that in all instances where the Council of Europe agreement applies, which includes certain countries outside Europe as well, we will apply the formula devised by the Government and simply drop the qualification which the

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Minister has not been able to justify and which will be difficult in practice? I urge the Minister at least to agree to re-examine the matter.
Lord Mackay of Drumadoon: I am happy to assure the Committee that I will do so. As I anticipate that we have two and a half years to do so, we shall do so thoroughly before October 1999, when Chapter I of Part II comes into effect.
Lord Dubs: I thank the Minister. Did he say that "there were" two and a half years to do so, or "we have" two and a half years to do so? I shall not press the point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Baroness Blatch Baroness Blatch moved Amendments Nos. 110H to 110P:
Page 49, line 39, at end insert—
("4A.—(1) This paragraph applies in relation to—
(a) prisoners repatriated to Scotland before 25th October 1996 (the "relevant date") who were still serving sentences, which were imposed before 1st October 1993 in the country or territory from which they were transferred, on the relevant date; and
(b) prisoners repatriated to Scotland in respect of such sentences on or after the relevant date.
(2) Paragraph 2 of the Schedule to the 1984 Act, as originally enacted, shall have effect, and shall he deemed to have had effect since 16th February 1990, as if—
(a) in sub-paragraph (1), for the words "section 60 of the Criminal Justice Act 1967" there were substituted the words "section 22 of the Prisons (Scotland) Act 1989"; and
(b) at the end there were added the following sub-paragraph—
"(3) In this paragraph "sentence" means the provision included in a warrant which is equivalent to a sentence.".").
Page 49, line 41, after ("1996") insert ("(the "relevant date")").
Page 49, line 42, leave out ("their sentences on that") and insert ("sentences, which were imposed on or after 1st October 1993 in the country or territory from which they were transferred, on the relevant").
Page 49, line 43, leave out ("on or after that") insert ("in respect of such sentences on or after the relevant").
Page 49, line 51, at end insert—
("( ) For the purposes of Schedule 6 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 a prisoner's sentence shall be deemed to have been imposed on the day on which the relevant provisions take effect.").
Page 50, line 9, after ("imposed") insert ("on or after 1st October 1993").
Page 50, line 25, at end insert—
("( ) For the purposes of Schedule 6 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 a prisoner's sentence shall be deemed to have been imposed on the day on which the relevant provisions take effect.").
The noble Baroness said: I spoke to these amendments with Amendment No. 109A. I beg to move them en bloc.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Schedule 4 [Minor and consequential amendments]:
Lord Ackner Lord Ackner moved Amendment No. 110Q
Page 58, line 14, at end insert—
("Indecency with Children Act 1960 (c. 33)
3A. In subsection (1) of section (1) of the Indecency with Children Act 1960 (indecent conduct towards young child), for the words "two years" there shall be substituted "seven years".").
The noble and learned Lord said: This amendment is designed quite simply to provide for what has become a lacuna in the sentencing powers. The case was raised and brought to my attention by his honour Judge Colin Colston on the basis that he had frequently to deal with cases under the Indecency with Children Act 1960. Section 1(1) of that Act provides that,
"Any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years".
That is to be contrasted with the Sexual Offences Act, under which, on an indecent assault, the maximum sentence has now been increased to 10 years.
What gives rise to the problem is the prosecution's belief, which may be quite justifiable, that in order to prosecute under the Sexual Offences Act there must be a touching amounting to an assault by the accused; whereas if a child is persuaded into itself committing an act of gross indecency or being a party to it, that can only be dealt with Under Section 1(1). He gives as an instance with which he frequently has to deal an adult, usually a parent, who persuades the child to be a party to an act of oral sexual intercourse. That does not involve an indecent assault but it does involve the incitement of the child to commit an act of gross indecency. Clearly, the maximum sentence of two years is quite inadequate to deal with that.
Judge Colston has provided me with a letter which comes from Mr. David MacLean and is dated as recently as 12th February, although I received it only today. It points out that the Government are committed to ensuring that the courts have the powers they need to deal with the offender who appears before them. The Government have decided that a full review of sexual offences penalties is required. The review would be undertaken by officials in the Home Office in due course.
That is reassuring, but this is such a short amendment and the need for it is so obviously serious that one would have thought that the limited amendment that I propose could be inserted while one is waiting—and the wait is always longer than one expects—for a review. Then one waits after the review for consultation on the review, and subsequently one waits for the occasion when the provision can be put in a criminal justice Bill. I beg to move.
Baroness Blatch: I start by saying to the noble and learned Lord that I am very sympathetic to his amendment. No right thinking person can regard indecent conduct towards a child with anything other than complete revulsion. We are concerned to ensure that the courts have the powers that they need to deal

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with the cases which come before them and we are always willing to increase the maximum penalty available for an offence when it is clear that the existing maximum is too low to reflect the seriousness of the offences which come before the courts.
We are aware that the maximum penalties may be inappropriate in the case of certain sex offences and also that there may be inconsistencies in the penalties available for different sexual offences. That is why my right honourable friend the Home Secretary announced last month in another place that he had decided to review the maximum penalties for all sexual offences. The purpose of the review is to identify any anomalies and to ensure that the maximum penalties available to the courts for different offences properly reflect their comparative gravity. The review will, of course, cover the offence of indecent conduct towards a child.
There would be an argument for resisting the proposal now on the grounds that the review will address the offence in the context of all the others. On the other hand, I see the force of the argument that if there is a serious shortcoming in the law on this point and it is sufficiently anomalous—and I suspect that the noble and learned Lord may be right in arguing that there is—we should act straightaway while we have an opportunity before us in the Bill.
I wonder whether the noble and learned Lord will allow me to reflect further on the point to ascertain whether it would be right to change the penalty for the offence now. In doing so, I should like also to reflect on whether the noble and learned Lord is right in proposing a seven-year maximum sentence or whether the model in the Crime and Punishment (Scotland) Bill which will raise the penalty for the roughly equivalent Scottish offence to 10 years would be a more appropriate course to follow. In the light of that promise to reflect and bring something forward at Report stage, perhaps the noble and learned Lord will not press his amendment now.
While I am on my feet I wish to put a correction on the record. The article by Alasdair Palmer in the Sunday Telegraph last Sunday was not correct. It referred to the offence of indecent assault on a child as carrying a maximum penalty of two years. I know that the noble and learned Lord did not make that mistake and made the proper distinction about conduct towards a child. But as the noble and learned Lord knows, the maximum penalty for indecent assault is 10 years. Furthermore, the article stated that the Home Office is resisting attempts to increase the maximum penalty. Again, that is simply not true. On the contrary, as I have said, we are actively reviewing the maximum penalties for sexual offences. We have already accepted that there is a strong case for reconsidering the offence which is the subject of the noble and learned Lord's amendment.
Viscount Colville of Culross: I support the noble and learned Lord, Lord Ackner. The noble Baroness said something extremely encouraging. It is quite right; it is too low.
Lord Ackner: I am grateful to the noble Baroness for her generous suggestion which, of course, I accept.
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I put down seven years because I knew that it was easier to get that figure increased than to get it reduced. As "Modesty" is my middle name, I felt that was a wise approach. On the basis of what has been said, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendments Nos. 110R and 110S:
Page 59, line 30, at beginning insert—
("( ) In subsection (4A) of section 82 of the 1980 Act (restriction on power to impose imprisonment for default), in paragraph (e) for the words "under the age of 21" there shall be substituted the words "under the age of 25".").
Page 59, line 30, leave out ("the 1980 Act") and insert ("that Act").
The noble Baroness said: With the leave of the Committee I shall move these amendments en bloc. They are minor amendments required as a consequence of Clause 32 of the Bill. That clause enables courts to impose an attendance centre order for fine defaulters up to the age of 25, rather than up to the age of 21 as now. The amendments do no more than make a similar change in the reference to the upper age limit for attendance centre orders in Section 82(4A) of the Magistrates' Courts Act 1980. It may be helpful for me to indicate that Section 82(4A) refers to ways in which a fine can be imposed by the courts. I beg to move.
On Question, amendments agreed to.
[Amendments Nos. 111 to 113 not moved.].
Baroness Blatch Baroness Blatch moved Amendment No. 113A:
Page 63, line 12, at end insert—
("( ) In Schedule 6 to that Act, in paragraph 1, in the definition of "new provisions", after "Act" where it last occurs, there shall he inserted the words "and the Repatriation of Prisoners Act 1984 as it has effect by virtue of paragraphs 5 and 6 of Schedule 2 to the Crime (Sentences) Act 1997".").
The noble Baroness said: Amendment No. 113A was spoken to with Amendment No. 109A. I beg to move.
On Question, amendment agreed to.
Lord Carlisle of Bucklow Lord Carlisle of Bucklow moved Amendment No. 114:
Page 63, line 21, leave out ("80 per cent") and insert ("two thirds").
The noble Lord said: In rising to speak to Amendment to No. 114 I am aware of the fact that there must be a feeling of relief throughout the Chamber as we come to the penultimate amendment in the Committee stage of the Bill. I can assure the Committee that at this time and at this stage of the Bill it would clearly not be appropriate for me to make a long speech. However, though it comes late and the amendment may seem small, it is a matter of principle which is of considerable importance. It is therefore with regret—though I do not suggest it is a regret for which anyone can take responsibility—that we must debate it at this hour.
The purpose of the amendment concerns the change proposed in the Bill to Section 48 of the Criminal Justice and Public Order Act 1994. That section gives statutory backing for the acceptance of the view that

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those who are willing to plead guilty should benefit from that plea in the sentence that is passed. The Committee will be aware that Section 48 says,
"In determining what sentence to pass on an offender who has pleaded guilty … the court shall take into account … the circumstances in which this indication was given",
and the stage at which he pleaded. It should be made clear in open court that those matters have been taken into account and that the sentence that would otherwise have been passed has consequently been reduced.
The importance of pleas of guilty in our criminal system must be obvious to anyone. The length of time taken up by unnecessary trials inevitably delays the whole procedure of the courts. Therefore, if those who are rightly guilty of offences are willing to admit their guilt and plead guilty, by that act they are not only saving the time of the court, but also expressing remorse for what they have done. It is accepted not only in our jurisdiction but also in every other jurisdiction that recognition of that fact should he met.
It is now accepted—I think it probably applies in Scotland as well—that the normal discount of sentence is a third. By tradition, you can advise your client with a degree of confidence that should he choose to plead and admit his guilt you would hope to get up to a third off the sentence he would otherwise receive. The implementation in Clauses 1, 2 and 3 of mandatory sentences inevitably substantially affects the advantage of guilty pleas. The Government have clearly recognised that. No one faced with a mandatory sentence, receiving any benefit from pleading, is likely willingly to plead if he thinks he has the slightest possible hope of being acquitted. I have no doubt that that will apply to anyone who is charged with an offence that comes within the provisions of Clause 1 of the Bill just as it will with those that come within the provisions of Clauses 2 and 3. As noble Lords on all sides of the Committee have warned the Home Office, the introduction of mandatory sentences, among other things, is bound to have the deleterious effect of reducing the number of pleas of guilty.
The Home Secretary has recognised that argument. The Bill proposes that there should be the power to reduce a sentence on a plea of guilty which is otherwise a mandatory sentence, but, perversely, the Home Office has not taken the normally accepted reduction of a third of the sentence for pleas of guilty, but says that a reduction of up to 80 per cent. may be allowed. I say to the Minister with respect that the Government should take seriously the arguments advanced, particularly by the noble and learned Lord the Lord Chief Justice, during the Second Reading of the Bill that a discount of 20 per cent. is not sufficient to cover many of the aspects that are required to be considered when people may be choosing to plead to charges involving serious crimes with considerable consequences to themselves.
I cannot understand why, having accepted the principle, the Home Secretary is not prepared to go along with the recognised provision that exists today of discount of a third. Perhaps I may make two brief points. First, the Home Secretary has said repeatedly that he is not aiming or intending by the Bill to increase sentences in general. Why, then, interfere with the
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discount normally allowed for pleas of guilty? Secondly, I pointed out to the Minister in a debate we had at about this hour on a day last week with regard to the reduction in the sentence of 66 per cent. that if she wished to be mathematically correct it should be reduced to 60 per cent. I said that I agreed to a certain extent that it was a teasing amendment because it sought to point out the absurdity to which that would lead.
The Government are themselves enacting the same absurdity by saying that the discount should be 80 per cent. rather than a third. My noble friend said, in explaining why the Government had chosen 66 per cent., that sentences are invariably found in areas that are divisible by three and that therefore if you say "take off a third" you can do it simply. But if you say "take off 40 per cent.", you come to an absurd example. Perhaps I may therefore do the reverse here. If you allow for the discount of a third in the mandatory sentence of three years passed for a burglar, you give a sentence of two years. It does not seem to require a calculator beneath the desk of counsel to work out that answer. If, on the other hand, you take a discount of 20 per cent., then you pass a sentence of 2 years, 4 months and 24 days. With seven years, if you take a quarter deduction, you come to 4 years and 8 months. If you take a deduction of 80 per cent. you come to some figure 1 cannot now work out—5 years, 7 months and 12 days.
So on the Minister's own argument the sensible thing is to stick to the normal provision that sentences are reduced by up to one-third for pleas of guilty. I hope very much that, having accepted the principle, the Minister is prepared to say that she will look again at the figure used in this case. I beg to move.
10.30 p.m.
Lord McIntosh of Haringey: This amendment is grouped with my Amendment No. 115, which suggests a proportion of 75 per cent. I am utterly convinced by the arguments of the noble Lord, Lord Carlisle of Bucklow, not least by his mathematical arguments. I too listened in disbelief to the long and utterly implausible explanation by the Minister in response to his amendment last week when she protested that unless a sentence was reduced by one-third or two-thirds one could not possibly calculate it. She is hoist with her own petard. She has to agree to the noble Lord's amendment.
But it is more serious than that. I believe that it is the experience of the courts that if one is going to attract a plea of guilty, which is enormously beneficial to the work of the courts and to the victims of serious crime in that there should be an acceptance of guilt in appropriate cases, there should be an adequate incentive to plead guilty. If one-third works now, why on earth change it?
Lord Bingham of Cornhill: I hope I shall be excused for returning to this matter since it is in my judgment of the greatest practical importance. The practice of reducing sentence where a defendant has pleaded guilty is very long established. It reflects a belief that it is in the public interest to encourage pleas of guilty. The reasons are obvious and several of them have been mentioned. It marks an acceptance of responsibility by the defendant; it spares the victim the ordeal of giving

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evidence; it encourages—and this is vital—the supply of valuable intelligence to the authorities; it eliminates the risk of unjust acquittals; it contributes to the efficient and cost-effective conduct of criminal business. Since the practice is endorsed by Section 48 of the 1994 Act, one may take it that Parliament shares the view that this is a beneficial practice.
The extent to which a sentence is reduced to take account of a plea of guilty, like almost everything else in properly conducted sentencing, depends on the facts of the individual case. If the plea comes late then the discount may be small. I encountered a case last week where a defendant pleaded guilty after 12½ weeks of trial. The judge said that she would give some discount, but not a very great one. The Committee may think that that was sensible.
However, if a plea of guilty is early and if it is accompanied by the supply of valuable information to the authorities which enables other criminals to be apprehended and other criminal activities to be stopped, then the discount may be very substantial. There is no rule of thumb. It is true, as the noble Lord, Lord Carlisle, has said, that in the ordinary case a plea of guilty entered early generally leads, in the common understanding, to a discount of approximately one-third. That is a rule which has evolved in practice because it has been judged to be the sort of discount which is necessary to encourage pleas of guilty while ensuring that offenders are realistically punished for their offences. Schedule 4(17) departs from the general understanding. It stipulates that the maximum discount shall be 20 per cent. for the mandatory sentences required under Clauses 2 and 3.
One is entitled to ask why that figure has been chosen. Is it based on research? If so, who has conducted the research and is it too late to see the results? Is it based on consultation? If so, who has been consulted and what answers were given? Is it based on experience? If so, on whose experience? Is the truth that it is a figure that has simply been plucked out of the air and deliberately pitched very low to prevent the courts reducing the mandatory sentences by the ordinary percentage? If so, I invite the Minister to ponder the consequences. Clause 2 provides that the minimum sentence for a timely plea, even if accompanied by valuable intelligence, is 20 per cent., so that the smallest sentence will, on my calculation, be 671/5 months; under Clause 3 it will be 284/5 months. Judges do not award terms of imprisonment in fifths of months, so in fact the discount will be less than the 20 per cent. as the courts will be obliged to round upwards since they cannot round downwards.
I repeat that the discount will be less than 20 per cent. I venture to suggest that no knowledgeable observer would regard a discount of 20 per cent. or less as sufficient to encourage a plea of guilty and a supply of information, which is a routine event with offences such as drugs and burglary. I look to the Minister for reassurance that that
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point has been considered and a satisfactory answer found, and I invite the noble Baroness to tell us what that answer is.
Lord Ackner: I should like to add two points. First, the application of the, so to speak, two-thirds rule—it sounds like the old days at the Bar—is one which is the product of this Bill. The judge has to reduce the sentence he would have given by two-thirds, so the two-thirds is something which is simply and easily applied. Secondly, we should proceed, should we not, on the basis of the amendment to Clauses 2 and 3—the amendment which produced the coach and horses; the amendment which restored the judge's discretion; the amendment which, according to the noble Baroness, brought us back to where we started. On that basis, there cannot be the slightest justification for applying other than what is normally applied because we are back to that normality.
Baroness Blatch: I fear that we shall have to agree to differ on this point. All noble Lords who have spoken have done so from the basic belief that they do not like minimum mandatory sentences. I accept that. That has been their consistent viewpoint.
The two amendments standing in the name of my noble friend Lord Carlisle of Bucklow and the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn, raise the important issue of discounts to the mandatory penalties set out in Clauses 2 and 3 of the Bill.
The Bill as it stands provides that a court may take a timely guilty plea into account so long as the sentence passed is not more than 20 per cent. below the mandatory minimum. As my noble friend has explained, the effect of these amendments would be to increase the proportion by which a court would be able to reduce a sentence below the mandatory minimum in order to take account of a guilty plea.
It is accepted on all sides, I know, that there needs to be an incentive for defendants who are guilty to plead guilty at the earliest opportunity, to save witnesses from having to give evidence unnecessarily and to avoid wasting the court's time. This is why the Bill as it stands makes statutory provision for a discount below the mandatory minimum.
Section 48 of the Criminal Justice and Public Order Act 1994 provides that the courts may reduce sentences to take account of guilty pleas but does not specify the proportion. The Court of Appeal's guidelines indicate a range of 20 per cent. to one third. No doubt that is why my noble friend Lord Carlisle proposes a maximum discount of one third in relation to mandatory minimum sentences. But we must also bear in mind the need for mandatory minimum sentences to be set, even in cases where the defendant pleads guilty, at such a level as to provide a real deterrent for persistent offenders. It will be open to the courts to allow more than a 20 per cent. discount in cases where, other than for a guilty plea, they would have sentenced above the mandatory minimum.

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Both burglary and drug dealing are crimes characterised by persistence. The aim of mandatory minimum sentences, which I accept that noble Lords who have spoken do not agree with, is to ensure that burglars and drug dealers know that they face a stiffer sentence if they persist in offending. If the mandatory minimum is substantially reduced I believe that we run the risk of undermining the very purpose and rationale of Clauses 2 and 3. If one takes into account remission, if earned, and the reduction, one is talking of a prisoner serving a minimum sentence of much less than two years for what would he a three-year mandatory minimum sentence.
The Bill provides that the discount given for a guilty plea may not reduce the sentence imposed under Clauses 2 and 3 of the Bill by more than 20 per cent. below the mandatory minimum, or seven years under Clause 2 and three years under Clause 3. But it does not provide that the discount can only be 20 per cent. If the court is minded to impose a higher sentence the discount can be at a much higher level.
10.45 p.m.
Lord Ackner: Perhaps the noble Baroness can assist me on one matter. Does that mean that in a drug case if the judge imposes seven and a half years he can apply the one third and if he imposes three and a half years in relation to burglary repetition he can apply one third? If one goes above the mandatory sentence one can bring it down by reason of applying the classic one third reduction, thereby circumventing what the noble Baroness has said.
Baroness Blatch: No. The point at issue between us is that the noble and learned Lord does not agree with mandatory sentences. We simply say that there should be a sentence below which the courts should not award a discount. If the offence is concerned with burglary or drugs and someone has been convicted a third time in court, the sentence should be three years or seven years. The discount for an early guilty plea should be no more than 20 per cent. In the particular case mentioned by the noble and learned Lord, if someone is given a seven and a half-year sentence one assumes that the offence is more serious than if someone receives a seven-year sentence. If the judge were so minded he would be allowed to give a discount up to no more than 20 per cent. below the minimum mandatory sentence in the context of both the three-year and the seven-year sentence.
Lord Ackner: With great respect, I understood the noble Baroness to say that if a sentence above the minimum were imposed the judge would be entitled to apply the ordinary one third reduction. I sought to point out that on that basis a small increase above the minimum sentence would produce a lesser sentence than to impose the minimum sentence which would then be cut down to the 20 per cent.
Baroness Blatch: I do not know whether the noble and learned Lord suggests that in such a case the judge might want to apply the third. I simply say that as long
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as the judge does not go below 20 per cent. of the mandatory minimum it must be for the court to decide what to apply. The general rule is to apply the third. We simply say that, consistent with the view that there should be a mandatory sentence, there should be a cut-off point below which no court should go for an early guilty plea. That would be 20 per cent. below the minimum both for drugs (a seven-year sentence) and burglary (a three-year sentence). We have taken the view that a balance must be struck. On the one hand, there must be sufficient incentive to encourage those who are guilty to plead guilty. On the other hand, the mandatory penalty must be such as to provide a real deterrent and salutary punishment of persistent offenders.
Our judgment is that a 20 per cent. discount, which represents the lower end of the normal range for guilty pleas—I did say that the guidance to the courts was between 20 per cent. and one third—strikes the right balance. For those reasons, I hope that the amendment will not be pressed.
Lord Bingham of Cornhill: Before the Minister sits down, could she address specifically the question of supplying information to the authorities, because that leads in practice to more than one third, as everyone will recognise. It is a valuable source of information which leads directly to the protection of the public. How is that taken care of with the 20 per cent?
Baroness Blatch: I entirely take the noble and learned Lord's point. First, if we are talking about a three-year or a seven-year sentence, we are talking about the bottom of the range, but persistent offenders who have offended for at least a third time. The kind of case about which the noble and learned Lord is talking is invariably the more serious one.
Lord McIntosh of Haringey: No.
Baroness Blatch: We are talking about sentences at the bottom of the range. The noble and learned Lord must be if we are talking about a sentence that attracts the minimum sentence for a persistent offender—a third time at least for drugs dealing and burglary. But where someone exposes a ring of people working, gives information to the court, pleads guilty, and is very helpful to the courts, it is normal for the courts to be very generous. What I am saying is that if a higher sentence is given, then a larger discount can be considered so long as the discount does not come below the 20 per cent. cut-off point below the mandatory minimum sentence.
Lord Bingham of Cornhill: What about the very case with which we are concerned—someone qualifying for a three-year or a seven-year sentence? I have encountered the very case this week—someone who gave valuable assistance to the authorities about other burglaries which led to a number of arrests. I do not think that anyone would expect that a 20 per cent. discount would encourage that degree of co-operation.
Baroness Blatch: In responding to the noble and learned Lord, I have to return to the fundamental point

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that I am making, which I agree is a difference between us. It is that we believe that someone who comes before the courts for the same offence persistently for drug dealing and/or for burglary who attracts the minimum sentence should also attract the minimum discount down to no greater than 20 per cent. below.
I said that doing the calculation if you have someone who receives a three-year sentence and earns the good behaviour discount plus the 20 per cent. discount for having helped the courts, you are talking about someone serving a mandatory sentence of much less than two years. That is not right. We believe that there has to be a cut off if we go down the road of accepting the principle of mandatory sentences, but I respect that the noble and learned Lord does not agree with that.
Lord Thomas of Gresford: The Minister does not understand the point that the noble and learned Lord the Lord Chief Justice was making a moment ago.
Lord Chesham: That is arrogance.
Noble Lords: Order!
Lord Thomas of Gresford: The point I want to make is that in a drugs case—of course we are dealing with drugs cases—the people who tend to get arrested are the minnows. It is the minnows who give the valuable assistance to the investigating authorities in order to have the larger people arrested.
The value of the information that they give is worth infinitely more than a 20 per cent. discount on a mandatory sentence of seven years. It may well be worth at least two thirds off the sentence for a minnow, a runner, a person who distributes drugs at the end of the chain, who gives detailed descriptions, and details of organisations at a much higher level. That is a frequent occurrence. That is the kind of thing that happens in the experience of the courts all the time.
Again, when it comes to persistent burglaries, it is that sort of instance where there is a well-organised gang and a person at a low level is caught. That is the person who breaks, who gives the information. That is the person on whose behalf one goes round to talk to the judge—of course with both sides being represented—to tell him the value of the information that has been received.
The problem with mandatory sentences is, first, they give no incentive to the smaller people in drugs, burglaries and organised crime of that kind to provide such information. The second point is that it is not always easy to persuade people to plead guilty. They appear fearful of the future and believe that there is a chance—indeed, there may be—either that the evidence will not come up to proof or that something will go wrong in the course of the trial. They believe that there may be a misdirection or that something will happen which will result in their acquittal; perhaps not a very meritorious acquittal, but certainly there is always the chance of an acquittal, a perverse verdict.
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In order to persuade a defendant to plead guilty one has to provide him with an incentive, never more so than with persistent offenders. From the very fact that they are persistent offenders one can derive that they will have been through the court system on other occasions, will have received sentences of imprisonment, will have had connections with the police and will be experienced. One has the greatest difficulty to persuade persistent offenders in their own interest—and it is in their own interest—to plead guilty.
The third point is that, as was said by the noble Lord, Lord Carlisle, by pleading guilty they are beginning to show remorse. They are possibly set upon a track which will prevent re-offending in the future. All those three practical reasons are based upon experience. The defendant has a free will and he cannot be ordered to do anything; not by the judge, his own counsel or the prosecution. He has to take the decision to plead guilty; he is the person who says the word "guilty". To that person you have to give a real incentive, and 20 per cent. is nowhere like it.
Earl Russell: The Minister has sought to evade the force of the argument for this amendment by alleging that all the arguments have come from those opposed to mandatory sentences. I am not certain whether that is the case, but if the Bill in any form becomes law all of us will have to live with it and attempt to operate it. Whichever way we go, it seems that some of us will have to live with a law which is not what we think it should be. Therefore, I do not believe that we can answer practical points about trying to make the law work by saying that they come from an alternative approach.
Let us take another issue on which there is rather more agreement. We have heard today a Statement about reducing delays in justice. Whether or not we agree with the methods suggested, we all agree with the objective. I ask the noble Baroness to consider the possibility that accepting this amendment might do more to reduce delays in justice than all 33 of the proposals in that Statement put together.
On the subject of that Statement, when my noble friend Lord Thomas of Gresford referred to the drug runner I was reminded of the proposal to deprive the CPS of discretion to discontinue prosecutions because the offence is minor. When we want evidence from a drug runner the two likely inducements that we have are refraining from prosecuting or a discount for a guilty plea. Today's Statement will take away one of those and this Bill will take away the other. Therefore, how will we obtain the evidence? Is this Bill really intended to protect the public? If so, it is very unsuccessful in its objective.
11 p.m.
Baroness Blatch: I found the last part of this debate quite depressing. This Bill is before Parliament because the public are particularly anxious about the daily scourge of drug dealing and domestic burglary. The Government address that anxiety in the Bill by

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proposing that there should be a sentence of no less than three years for those who commit burglary persistently and seven years for those who deal persistently in drugs.
We have also given incentives for good behaviour in terms of early release, and we have said that there should be some recognition of a guilty plea by reducing the sentence by 20 per cent. and no more than 20 per cent. of sentence.
I should say to the noble Earl that the only people who have spoken to the amendment are those who are implacably opposed to the Government's proposals for mandatory sentences. Does the noble Earl wish to indicate something different?
Earl Russell: I am not certain whether that applies to the noble Lord, Lord McIntosh of Haringey.
Baroness Blatch: It certainly applies to the noble Lord, Lord McIntosh of Haringey, who went into the Division Lobby on Clauses 1, 2 and 3 to vote against the Government.
Lord McIntosh of Haringey: I do not think it is proper to speculate on my motives or opinions.
Baroness Blatch: I was merely stating a fact that the noble Lord voted against the Government's proposals in the Bill.
The efforts which have been made by those opposed implacably to the Government's proposals to reduce by one means or another the amount of time that people have to spend in prison when they have persistently offended against the community seems to me to be extraordinary, and I find it quite depressing. However, I respect people's views. I said at the outset that I respect those who take the view that mandatory sentences are not the answer. We take the view that they are. If we are to have mandatory sentences and they are to mean anything, the reduction for a guilty plea should not be more than 20 per cent.
The noble Lord, Lord Thomas of Gresford, referred to informants. If an informant deserves a reduction of two-thirds of the sentence for valuable information, the route of awarding a discount under Section 48 will not be open to the court. In practice, that enables discounts of up to one-third for guilty pleas, not for providing useful information to the authorities.
The noble Lord said also that 20 per cent. was not worth having. I am not so sure. I did some arithmetic. I believe that to have almost 18 months—one year, five months—deducted from a seven-year sentence is not bad for someone who has been in and out of the courts at least three times for drug dealing. That is not to be dismissed lightly. All Members of the Committee who have spoken to the amendments have referred to the bottom of the range of sentences—the three-year range and the seven-year range. Many people in the courts who are guilty of persistent burgling and drug dealing will receive much greater sentences. There is then scope for the courts to be more liberal in the time that they deduct for being helpful to the courts. That is very much a matter for the courts.
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I end where I started. I accept that we must agree to differ. We have taken the view that mandatory sentences are an important response to public anxiety. I stand by that. We believe that not to give more than a 20 per cent. discount for a guilty plea is consistent with receiving a tough sentence on the third time of being convicted.
Lord Carlisle of Bucklow: The Minister said that she found the debate depressing. I hope that she will accept that, with regret, I am bound to say that I found her answer very depressing. What saddened me particularly was that in some ways it was predictable. She said what I expected would be said.
I find it very worrying that the Home Office is apparently so committed to the rightness of its views that it is not prepared to listen to the advice of the noble and learned Lord the Lord Chief Justice, his predecessors and others, or even to attempt to answer their arguments. I suspect that my noble friend Lord Colville is as surprised by that approach as I am. I do not believe that it is traditional for the Tory Party in government in any way to ignore the advice of those experienced in the field or, indeed, not to attempt to work with them.
My noble friend the Minister was specifically asked upon what 80 per cent. was based, but she offers no answer. She was asked who was consulted and whether the Lord Chief Justice, the judiciary or, indeed, anyone was consulted. Clearly the answer is, no. I have made my position clear. I do not like the idea of mandatory sentences. But, if we are going down that road, certain things are necessary. One upon which we succeeded was the proper exclusion clause and the second, I believe, is a proper provision for those who plead guilty.
Whether or not one is opposed to the principle of mandatory sentences does not, to my mind, affect where one stands on the issue of the amount to discount for pleas of guilty. However, clearly it would be irresponsible for me at this late hour to attempt to test the opinion of the Committee, but I hope to have the opportunity to return to the issue—perhaps by some other means—at an earlier hour during a later stage of the Bill's proceedings. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 115 not moved.]
Schedule 4, as amended, agreed to.
Schedule 5 [Transitional provisions and savings]:
Lord Ackner Lord Ackner moved Amendment No. 116:
Page 63, line 25, after ("65") insert ("and 67").
The noble and learned Lord said: The intention of the amendment is to preserve the effect of Section 67 of the Criminal Justice Act 1967 which deals with computation of sentences of imprisonment with particular regard to the extent and manner in which the imprisonment can be reduced by any period spent in custody prior to the sentence.
The amendment seeks to put Section 67 into paragraph 1 of Schedule 5, along with the other sections outlined there which are being preserved until this legislation is brought into force. If Members of the

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Committee will look at Clause 8 of the Bill, they will see that the provisions of the legislation apply only once the Act is brought into force. Clause 8(1)(a) applies where,
"a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section".
If one turns to the repeals which are set out at the end of the Bill on page 69, it will be seen that almost the first entry refers to the fact that Section 67 is to be repealed. This is designed to safeguard the entitlement to apply Section 67 in the calculation of the sentence until Section 8 comes into existence. I beg to move.
Baroness Blatch: As I understand it, the intention behind the amendment is to preserve the effect of Section 67 of the Criminal Justice Act 1967 and the existing provision for the crediting of remand time, which is to be repealed by the Bill, for all offences committed before the commencement of Chapter I, Part II of the Bill. I understand that the concern of the noble and learned is that since Clause 8 of the Bill (the new provision which deals with the crediting of remand time) is to apply only to those sentenced for offences committed after commencement of that clause, there will be no provision for the crediting—or such time relating—to those who committed their offences before commencement but are sentenced afterwards.
I have written to the noble and learned Lord on the point. I can assure him that we have taken account of the need for transitional arrangements and that the Bill, as it stands, allows adequate provision to be made in that respect. The concern of the noble and learned Lord will be dealt with by repealing Section 67 of the 1967 Act when Clause 8 is introduced by commencement order, subject to a transitional saving which will preserve the effect of Section 67 for those who have committed offences before the commencement date. I know that the noble and learned Lord has already discussed these points in some detail with my officials. I hope that on further consideration he will not press his amendment.
The majority of the transitional provisions in this schedule reflect the fact that Chapter I of Part II of the Bill will be introduced subsequent to other provisions in the Bill. If Chapter I were introduced at the same time as we intend to commence those other provisions, this would have serious resource implications over ensuring sufficient prison places and adequate judicial training. The schedule also contains provisions on transfers which, while apparently complex, clarify a currently unsatisfactory area of the law.
I think we have met the particular concern of the noble and learned Lord, but of course he will not be reticent in telling me if I have not.
Lord Ackner: I am grateful to the noble Baroness. I think the explanation is a convoluted one which may well be right. I want an opportunity to consider it. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
On Question, Whether Schedule 5 shall be agreed to?
Lord Ackner: I wish to contest this Question. I appreciate that it is late in the evening, gone 11 o'clock, but this is really a bonne-bouche to end the evening with. I hope the Committee will find a certain wry entertainment in what I propose to say because it has been part of the main philosophy of the Home Secretary and the Government to introduce greater honesty and clarity into the sentencing process so that all those involved, offenders, judges and the public, will know exactly where they stand.
I now turn to Schedule 5, which is concerned with transitional provisions and savings. I am grateful to Dr. Thomas, QC of Cambridge for providing the detail which I suspected but which I did not analyse with the thought that he has given to it.
The provisions of the Bill will apply only to offences committed after the commencement of the relevant sections. That is already common ground. There will be a transitional period and this may last—as I understand from what has been said in the past—for a decade or more during which both systems will be in force simultaneously. An offender sentenced after the commencement of the Bill for an offence committed before that commencement will be sentenced under the existing law. He will get the full sentence, not the reduced two-thirds of the sentence which Clause 22 requires, and he will serve it in accordance with Part II of the Criminal Justice Act 1991, as he does at the moment.
The relevant provisions are repealed by Schedule 6 to the Bill, but resurrected for the purpose of the transitional period. Schedule 5 also contains detailed provisions dealing with the case of offenders convicted of a number of offences, some committed before and some after the relevant commencement date. Where an offender is sentenced to consecutive terms for offences committed either side of the commencement date, the time to be served under each sentence is to be determined separately for each sentence under whichever of the Criminal Justice Act 1991 or the Crime (Sentences) Bill applies. An offender convicted of two offences, one committed each side of the commencement date, and who today would receive two years for each offence, will in future be sentenced for two years for the "old" offence and 16 months for the new offence—that is the two-thirds reduction. The offender will serve 12 months of the first sentence, and then begin to qualify for "early release days" in respect of the second. His position after release will be governed by whichever of the Acts applies to the final sentence.
If the sentencer orders the "old" sentence to be served first, the offender will be subject to a release supervision order for 25 per cent. of the "new" sentence—that is four months—with no liability to return to prison in the event of a conviction for an offence committed after that date. If for whatever reason the sentencer orders the sentences to be served in the reverse order, the offender will serve the 16 months required by the "new" sentence, less any early release days awarded. He will be able to earn a maximum, I believe, of something like 96 days; and he will then begin to serve the "old"

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sentence. He will be on licence for six months after release and subject to return to prison under Section 40 on conviction for an offence committed within 12 months following release.
If the sentences are ordered to run concurrently, (just to add to the jolly picture) the time to be served under each sentence will be calculated separately according to the relevant legislation. The offender's position after release will depend on which sentence is the "final sentence": that is, the sentence which will have the latest release date, allowing for any time which is deducted on account of time spent in custody on remand, but not for any "early release" days which the offender would be able to earn under the Bill.
An offender who today would be sentenced to three years on each count concurrently will, under the Bill, be sentenced to three years for the "old" offence, and two years for the "new" (post-commencement) offence. For the purpose of determining which is the "final" sentence, the three years will be treated as having a release date 18 months after the sentence, and a "new" sentence, which is treated as having a release date two years after the sentence, will be the "final" sentence. The offender will be subject to a release supervision order for six months after release and no liability to return under Section 40.
I repeat the philosophy of the Bill,
"to introduce greater honesty and clarity into the sentencing process",
so that,
"all those involved—offenders, judges and the public—will know exactly where they stand".
Dr. Thomas ends this helpful account by saying this:
"All that can be hoped is that in the cold light of day after the heat of an election campaign has dissipated, no Home Secretary, of whatever party, will be tempted to bring such nonsense into force".
11.15 p.m.
Baroness Blatch: The noble and learned Lord began by saying that this was a bonne-bouche. My noble and learned friend at my right hand wishes that he were ending the night with a whisky rather than a bonne-bouche from the noble and learned Lord.
Dr. Thomas has worked overtime on that submission. I rather anticipated the noble and learned Lord when I referred a moment ago to the amendment to Schedule 5 sweeping up what I knew to be his concern about the complexity of Schedule 5. I referred to the general point: we accept that it is complex. Moving from one system to another will always throw up complexities. But our underlying concern has always been to recognise the rights of those who committed offences and will be subject to the provisions that pertain at the moment and those whose offences will post-date the provisions of the Bill and will therefore be subject to the new provisions. The reason the schedule is so complex is precisely that the provisions preserve the rights of the offender which accrue on the date when the offence was committed. The detail of the schedule aims to cover every conceivable permutation of sentences in order to do justice to the individual.
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A "broad brush" approach in Schedule 5 would result in unfairness to offenders and would create anomalies which would create unjustice towards offenders. That is not our aim. Therefore, while accepting the complexity of the schedule and congratulating Dr. Thomas on his submission, I hope that Schedule 5 will stand part of the Bill.
Lord Ackner: I take it that with the congratulations goes the concurrence that the transitional period could last for a decade or more.
Baroness Blatch: There will be people in prison whose sentences very much pre-date this Bill. Yes, of course, unless they are to be treated very differently, the date when the offence was committed will determine which scheme they come under. So it will take some time before the provisions of the old system disappear.
Lord McIntosh of Haringey: The financial memorandum confirms that. My estimate of the costs in terms of the prison population and in money is only after 12 years.
Earl Russell: Are not the uncertainties of this schedule—not just as a consequence of the provision against retrospection; I follow the Minister's point in relation to that—a result of the extreme open-endedness of the commencement provisions in Clause 51? Is it not because different parts are coming into force at different times and none of those times is yet determined that there is so much uncertainty? Has not the noble and learned Lord just uncovered that we are bringing in this Bill long before we are ready to implement it?
Baroness Blatch: This is an extraordinary debate. We have made no secret of the fact that it will take some time for all the provisions of the Bill to come into effect. We have given an indication of those measures that will come into effect immediately on Royal Assent. We have given an indication that we expect the honesty in sentencing proposals to come into play. We have said that we will not disadvantage anybody who is in the system at the moment. Those whose offences pre-date the Bill will be subject to the present system and those whose sentences post-date the Bill and post-date particular provisions in the Bill will be subject to the new sentences. The noble Lord, Lord McIntosh, made the point for me that all of that is taken into account in the financial memorandum. Yes, it will take some time before those who are subject to the present system are out of the system.
Lord Ackner: I follow the sentiments of the noble Lord, Lord Carlisle. Much as one would like to divide the House, having demonstrated the total folly of what is provided in this legislation, it would not be a responsible thing to do at this time of night. I merely leave for the record—
Baroness Blatch: I am grateful to the noble and learned Lord for giving way. I know that the noble and learned Lord does not agree with the honesty in

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sentencing proposals, and that, in a sense, I want to set aside. Assuming that that honesty in sentencing proposals is accepted by Parliament at the end of the day, then I hope that the noble and learned Lord will agree with me that we need Schedule 5 in order to have proper transitional arrangements in place. I hope that he is not suggesting that we would move directly from one system to another and thereby genuinely apply the provisions of the Bill retrospectively to people whose offences pre-date the measures in the Bill.
Lord Ackner: I sought to emphasise the lack of honesty and clarity which is being provided by the Bill to the sentencing process. I sought to show that the proposition that I quoted; namely, that all those involved—offenders, judges and the public—will know exactly where they stand, is Cloud-cuckoo-land. As I was in the process of saying, it would be quite wrong at this stage of the proceedings to seek to divide the House. I therefore seek leave to withdraw my opposition to Schedule 5.
Schedule 5 agreed to.
On Question, Whether Schedule 6 shall be agreed to?
Viscount Colville of Culross: I shall not enhance my popularity by making a speech on Schedule 6. However, I wish to ask the noble Baroness a question of which I gave her a little notice earlier this evening. I am sorry if it did not reach her. The question concerned Section 40 of the Criminal Justice Act 1991. The noble Baroness is probably not familiar with that section and I do not blame her. It lays down that, if someone is serving a prison sentence but has reached a stage when he or she is out on licence and commits another offence during the licence period, that person is sentenced to the remains of the original prison sentence as well as to a further prison sentence for the new offence which has been committed.
That provision is being repealed, but it is quite a useful method of bringing home to people that a prison sentence does not finish when they are let out on licence. Last week we discussed possibly another look at the whole question of risk assessment. In the Bill as it stands, there will be a supervision period, which means that a part of the sentence will be served in the community. I do not know what the Government will do by way of amplifying or extending that, if anything. Nevertheless, in the Bill as it stands, part of the sentence will be served while the offender is in the community.
Will the noble Baroness reconsider the proposition that Section 40 should be repealed altogether when the present Bill's provisions come into effect? It brings home to someone who has committed an offence, and then during the period of supervision or licence commits another one, that the court meant what it said. That is in line with what the Government are trying to say in the Bill. I should have thought that they would be inclined to keep the provision rather than repealing it. I have heard no reason why it is being repealed. It cannot stand exactly as it is in the 1991 Act. It would have to be adapted. But the whole principle seems to have been
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thrown out. If the noble Baroness cannot answer me tonight, perhaps she would like to think about it and come back to me at another stage.
Baroness Blatch: I am sorry, I have not seen either this question or the previous one which the noble and learned Lord said he had passed to me. First, Section 40 has no place under the system introduced by this Bill. It is premised on the existence of remanding the remaining period of the sentence during which the offender can be sent to prison.
I do not know whether the noble Viscount was present at the stage when I responded to my noble friend Lord Belstead about the changes which we intend. Subject to collective agreement in the ministerial team, we wish to bring back a proposal at Report stage which would meet some of the concerns of my noble friend Lord Belstead about the Parole Board having an involvement in the release arrangements for long-term prisoners. There was also a proposal for the Parole Board to have an involvement in setting conditions for someone who would be released at the behest of the board.
However, there is a fundamental difference between the system to which the noble and learned Lord referred just now and the one which will be proposed when I have made amendments at Report stage. It is that under the short-term or long-term sentences proposed in the Bill, when the person is released from prison—either under the earned release system for short-term prisoners or under the proposals that I hope to bring forward for long-term prisoners, who will be released on the basis of recommendation by the Parole Board, with conditions set by the Parole Board—he is then deemed to have served his sentence. At that point he moves into the supervision period, which is not part of the sentence.
We are already in discussion about arrangements for recall to prison. Any breach of conditions in that supervision period will constitute an arrestable offence and therefore there will be arrangements for getting people back into prison for the whole range of breaches—whether the breach is serious, in which case somebody is returned to custody and then dealt with very quickly by the courts, or is minor and may also be dealt with by the courts, whose available disposals will range from community service to conditional discharge or whatever is in the mind of the sentencer.
There is therefore a difference. But the sentence is deemed to have been served on release from prison under the new arrangements.
Lord Belstead: I should not like my silence to be taken as meaning that I applaud what my noble friend has just said in relation to the deeming of the sentence being finished when release occurs. I am, of course, grateful to my noble friend for offering a concession, and it is a valuable concession. But I have pointed out to the Minister, outside this Committee, that the Government have painted themselves into a corner by stating that the sentence is completed once release begins for anybody. That makes it extremely difficult to effect the continuation of the existing recall arrangements (which I noticed nobody in the Committee

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criticised and yet they are to be swept away). That is not good. At the same time it drives a coach and horses through the concept of parole.
I do not particularly mind what the concession is called. I would be the last to say that it must be called "parole". But if a risk assessment is being done by the Parole Board with a stipulation of conditions, it is important that a proportion of the time is spent while the sentence is continuing.
I give notice to the Government that it is my intention to table an amendment at Report stage which will make it clear that the end of the sentence as given in the court shall be the time that is deemed to consist of the full sentence in relation to recall. It will therefore be possible once again to write into the Bill a recall system of the kind we have now. As to whether or not there is the slightest hope of carrying such a Motion in the House I do not know. I repeat—I mean no discourtesy to my noble friend on the Front Bench, who has fought long
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and valiantly and very courteously on this Bill and has been helpful to me; I am speaking to the Government—I do not want the Government to think that, because I am silent on this point, that silence means assent.
Baroness Blotch: This must be my last word because the Committee is becoming anxious. The House is sitting tomorrow and the convention is that we do not go past 11 o'clock when the House is sitting on a Friday.
However, the only way one can accommodate supervision periods inside sentencing time is to go for much earlier release. The Government have set their mind against early release. The whole purpose of the proposals was to do away with early release, and that will remain a fundamental issue between us. If the Committee supports that, that will indeed wreck the Bill.
Schedule 6 agreed to.
House resumed: Bill reported with amendments.
House adjourned at twenty-six minutes before midnight.