HL Deb 27 February 1997 vol 578 cc1354-408

House again in Committee.

Clause 43 [Power to make hospital and limitation directions]:

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 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 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.

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 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 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 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 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 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 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 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, 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 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 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 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. 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 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 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 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 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 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 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.

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 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 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.

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 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.

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.

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 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 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.

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 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 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 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 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.

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.

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 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 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 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 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. 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 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 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 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 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 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 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 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.

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 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 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.

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 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.

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 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 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" 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.

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 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 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 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 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.