Crime (Sentences) Bill

HL Deb 27 January 1997 vol 577 cc967-1074

3.8 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I beg to move that this Bill be now read a second time.

The first duty of any government is to maintain law and order. That means providing protection for the public against serious, dangerous and persistent offenders; and proper punishment for those who are convicted of offences against the public.

The present Government have not hesitated to strengthen the powers of the courts whenever it has been necessary to do so. We have increased the maximum penalties for a range of offences and introduced new offences to cover new areas of criminal conduct. However, we believe that in relation to certain categories of offence and offender it is now necessary to go further. We want to make a real impact on the crimes which cause particular and serious harm and distress to the victim—serious violent and sex offences, persistent dealing in hard drugs and persistent domestic burglary. That is what the radical new proposals in this Bill are designed to achieve, and it is the bench-mark against which they should be judged.

This is an important Bill. The key proposals were set out in the White Paper Protecting the Public, which was published in April last year, and in three further consultation papers on sex offenders, mentally disordered offenders and community penalties. At the instigation of the noble and learned Lord, Lord Taylor of Gosforth, this House had a stimulating debate on the proposals in May last year. The proposals have since been thoroughly debated in another place where some changes were made and a number of important new proposals were added. The proposals contained in this Bill have therefore gone through a long period of gestation and debate, and they are the better for that. They have attracted wide support from the public and the police, and I think it is fair to say a measure of support from the main Opposition party in another place. On Third Reading the Bill had a majority of over 200. I look forward to the constructive debates which we will have today and in Committee, and to getting this important Bill on to the statute book at the earliest opportunity.

Part I of the Bill contains the core proposals on sentencing which were outlined in the White Paper Protecting the Public. The proposals fall into three main parts. The first is the automatic life sentence, which is set out in Clause 1. This requires the court to impose a sentence of life imprisonment on anyone convicted for the second time of a serious violent or sexual offence, unless there are exceptional circumstances which justify not doing so. The relevant qualifying offences include rape, attempted rape, manslaughter, armed robbery and the most serious woundings.

The purpose of this proposal is twofold. First, it will ensure that offenders who are convicted for the second time of a serious violent or sexual offence are not released from prison if they continue to pose a real danger to the public. Secondly, offenders who are released will remain under supervision and subject to recall for the rest of their lives. Those two safeguards will provide real protection for the public against some of the most dangerous criminals in our society. That is what Clause 1 is designed to achieve.

Let me make clear that the trial judge will have complete discretion to set whatever tariff he considers appropriate to reflect the seriousness of the offence. Neither the Home Secretary of the day nor any other Minister will play any part in this process. Once the offender has served the tariff set in court by the trial judge, he will be released only if the Parole Board is satisfied that he no longer presents a danger to the public. If, however, the Parole Board is not satisfied that it is safe to release the offender then he will continue to be detained, subject, of course, to periodic reviews. It is the possibility of detaining the prisoner in this way, combined with lifelong supervision following release, which provides a level of public protection which no determinate sentence, however long, can provide.

Life imprisonment is already the maximum penalty for all the serious violent and sexual offences to which Clause 1 applies. But it is rarely imposed, even when the offender has previous convictions for similar serious offences. In 1994, 217 offenders were convicted of a serious violent or sexual offence, having previously been convicted of one or more similar offences. Only 10 of them were sentenced to life imprisonment.

I do not believe this gives the public the protection they need from such serious offenders. The courts can and do impose long determinate sentences for such offences, but when the offender has served his sentence he must be released at the automatic release point, even if there is every reason to believe that he will commit further serious offences. That is exactly what happens in a significant proportion of cases. Perhaps I could give the House an example. Last September a rapist was sentenced to life at Chelmsford Crown Court. He already had two previous convictions for rape, including that of a child, but because he was not given a life sentence on those occasions he had to be released at the end of each sentence. Under Clause 1 of the Bill he would automatically have received a life sentence on his second conviction, and would not have been free to rape for a third time. In future, offenders such as this will not be released automatically at the end of their sentence to commit further horrific crimes.

The Bill provides the court with discretion to set aside the automatic life sentence in exceptional circumstances. There was a good deal of debate in another place about exactly what that means. I would respond by quoting the noble and learned Lord, Lord Bingham of Cornhill, who said in a recent interview that "exceptional circumstances" means very unusual at the very least. That is exactly what we want to achieve. Mandatory penalties will only have the salutary effect which we expect and intend that they should if they are imposed as a matter of course in the generality of cases.

The Attorney-General will be able to refer cases to the Court of Appeal if he considers that the court has exercised its discretion to set aside the mandatory penalty in circumstances which were not exceptional. I have no doubt that the Court of Appeal will, in any event, take advantage of an early opportunity to issue guidance on what do and do not constitute circumstances which are sufficiently exceptional to justify setting aside the various mandatory penalties.

The second key element of our proposals, which is set out in Clauses 2 and 3, is that the courts should be required to impose mandatory minimum prison sentences on offenders convicted of domestic burglary or trafficking in Class A drugs who have two or more previous convictions for similar offences. We propose minimum sentences of three years for persistent burglars and seven years for persistent Class A drug dealers.

Persistent burglars and dealers in hard drugs are a menance to society, and they must know that if they continue offending they will go to prison for a long time. Burglary and drug dealing are crimes characterised by persistence. The police are playing their part by mounting operations targeted at known and persistent offenders. But too often burglars, in particular, escape custody or get a short sentence even after numerous previous convictions. A recent sample found that the average sentence imposed by the Crown Court on offenders convicted of domestic burglary for the first time was just over 16 months. After seven or more convictions, which often represents many more burglaries, the average sentence imposed by the Crown Court was only just over 19 months, and 28 per cent. of such offenders were not sent to prison at all. In the magistrates' court an extraordinary 61 per cent. of offenders with seven or more convictions for burglary were not sent to prison at all. Average sentence lengths do, of course, reflect a range of different sentences and within that sample of burglary some persistent burglars received much longer sentences than the average. But this was a minority. The unacceptable fact remains that there is little evidence of significantly longer sentences being imposed even after several convictions. And we should remember that each conviction may be for more than one offence.

If the majority of convicted burglars can expect to escape custody, however many times they offend, or receive a relatively short sentence, it is little wonder that so many burglars offend again and again and again. Under our proposals, burglars and hard drug dealers will know that if they continue offending they will go to prison for a long time. Stiff minimum sentences will provide a real deterrent to persistent offenders and severe punishment for those who continue to offend regardless.

Courts will have the discretion to set aside the mandatory minimum sentences in exceptional circumstances as they may similarly set aside the automatic life sentence. In the case of mentally disordered offenders, it will continue to be open to the court to impose a hospital order instead of the mandatory minimum prison sentence if it considers it appropriate to do so. The Bill also contains provision for the court to reduce the mandatory minimum sentence by up to 20 per cent. to take account of timely guilty pleas. This is to provide an incentive for those who are guilty to plead guilty at an early stage, thus avoiding unnecessary and costly Crown Court trials.

It has been suggested that the proposals in the Bill for mandatory sentences will remove the discretion of judges. Well, to a limited extent they do. Given the scourge of persistent burglary and dealing in hard drugs, the misery that habitual offending of this kind inflicts and the way it impacts on the public, some of us would say "rightly so". But there is nothing unique in the suggestion that Parliament should, in certain circumstances, prescribe such penalties. Mandatory penalties are already a part of our criminal justice system. For example, the mandatory penalty for murder is life imprisonment. Disqualification from driving is obligatory for certain serious road traffic offences, such as causing death by dangerous driving or driving when under the influence of drink or drugs, and the disqualification must be for at least 12 months. Only if there are special circumstances may the court set aside the mandatory requirement to disqualify.

The loss of discretion arising from the proposals in the Bill should not be exaggerated. The proposals are carefully targeted and narrowly focused. The mandatory minimum will only apply where strict qualifying conditions are met; and even then courts will retain the discretion either to impose a higher sentence than the mandatory minimum or, of course, set aside the mandatory sentence altogether in exceptional circumstances.

The proper role of Parliament is to provide a statutory framework for sentencing and to review and amend this from time to time in the light of experience and against the background of patterns of crime. That is what the Bill does. It has the support of the elected Chamber, and I hope that this House will consider our proposals on their merits and not on the basis of misplaced concern about the proper relationship between Parliament and the judiciary.

The third key element of our proposals is "honesty in sentencing" and the relevant provisions are set out in Part II, Chapter I of the Bill. We want the public, victims and offenders themselves to know that the sentence passed by the court is the term that the offender can expect to serve. That is not what happens at present. Indeed the noble and learned Lord, Lord Taylor of Gosforth, has said of the present arrangements: I believe public confidence in the system is eroded when convicted criminals are seen to walk free from prison after serving rather less than half their sentences, however good their behaviour may have been in the interim. Indeed, the system has now reached a point where the sentencing exercise in court has the appearance of a charade, with everyone engaged in a calculation of how much less than the announced sentence will actually be served". Let me say straight away that the Criminal Justice Act 1991, which introduced the present arrangements, was an important step. I know that those arrangements continue to have their champions in this House. However, we believe that it is time for a more radical overhaul of early release arrangements and that our proposals offer real advantages over the present system. I should like to explain why.

Our proposals for "honesty in sentencing" are based on a number of key principles. First, we believe that the sentence served by the offender should match as closely as possible the sentence passed by the court, so that everyone knows exactly what the sentence means; secondly, any time off should be earned by the prisoner and not granted as of right; and thirdly, there should be a sufficient period of post-release supervision to help the offender settle back into the community and to provide proper protection for the public.

The present arrangements for parole and automatic early release will, therefore, be abolished. Prisoners will no longer be released after serving as little as half of their sentence. In future, the sentence imposed will be the sentence which is served, subject to a small discount which prisoners must earn through co-operation and good behaviour. In practice, prisoners servicing sentences of more than two months will be able to earn a discount of up to 16 per cent. of their sentence under the new earned early release arrangements set out in Clause 10. That will provide an incentive for good behaviour which is lacking under present arrangements. Prison governors will retain the power to award "additional days" as punishment for disciplinary offences and these would be set against any earned early release days.

The Earl of Longford

My Lords, I wonder whether I might ask the noble Baroness a question.

Baroness Blatch

My Lords, perhaps the noble Earl will forgive me but we have a very long day to get through. He will have an opportunity to speak on any point or raise any question that he wishes during the debate. If I start to allow noble Lords to intervene in my speech, I am afraid that we shall not get started on what will be a very long day.

Let me continue. In practice, prisoners serving sentences of more than two months—the intervention has left me unable to pick up at the place where I left off. I repeat, prison governors will retain the power to award "additional days" as punishment for disciplinary offences and these would be set against any earned early release days.

Consistent with the principle that sentencing should be as transparent as possible, Clause 8 provides for the court to specify when passing sentence exactly how much remand time should count towards the sentence.

Under Clause 13, all prisoners serving 12 months or more will be supervised after release for a period of 25 per cent. of the original term of imprisonment. As your Lordships may recall, the Bill originally provided for a 15 per cent. period of post-release supervision. Doubts were expressed by a number of individuals and organisations about whether that would be sufficient and, having considered the point, we have now increased the supervision period to 25 per cent.

One rather strange effect of the present arrangements is that those who are considered least likely to re-offend, and are granted parole, are supervised for the longest period, while high risk offenders who are refused parole are supervised for only 8 per cent. of their sentence. It is, therefore, not surprising that recidivism rates for such parolees are better than for those who are refused parole. Under our proposals, all offenders serving sentences of 12 months or more will be subject to a 25 per cent. supervision period whenever they are released. High risk offenders serving long sentences will be supervised for substantially longer than they are at present. The conditions of supervision, which are set when they are released, and the level of supervision carried out by the Probation Service thereafter will continue to take account of risk assessments where appropriate.

Special provision is made in Clause 17 for sex offenders for whom long periods of supervision can be of particular value. Clause 17 provides that offenders convicted of sex offences will be subject to extended periods of supervision after their release from prison, unless the court considers that the exceptional circumstances of the case do not warrant it. The period of supervision will normally be 50 per cent. of the sentence imposed or 12 months, whichever is longer. Supervision may, however, be for up to 10 years if the court so determines.

Under the new arrangements, breach of the conditions of supervision will be an arrestable offence. That will enable quick intervention to detain a person who has breached his conditions of supervision and to bring him before the court. The court will be able to impose a range of penalties including a community penalty and imprisonment for the outstanding period of supervision.

In my view this adds up to a coherent and comprehensive package of proposals which offer real improvements on the present arrangements for early release and post-release supervision. The proposals in the Bill will ensure greater transparency in sentencing.

By providing that any reduction in sentencing must be earned, they will provide an incentive for good behaviour in prison which, as I said, is lacking at present. And, by providing for very long periods of supervision for sex offenders, and substantial periods of supervision for all offenders serving sentences of 12 months or more, the proposals will provide better public protection.

We have made it clear from the beginning that courts will be expected to take account of the changes in early release arrangements when passing sentence after the commencement of the relevant provisions. That is the purpose of Clause 22. Our intention, which is spelt out in subsection (1) of that clause, is that prisoners should serve approximately the same time in prison under the new early release provisions as they would have served under the present arrangements.

The actual time that an individual prisoner will spend in prison will depend in part on the prisoner's behaviour. It would not be appropriate or, indeed, sensible to ask the courts to achieve an exact match between the time a prisoner will serve under the new provisions and that he would serve if the existing arrangements applied to his sentence. What we have aimed to provide in Clause 22 is an approach which offers the best approximation and is straightforward for the courts to apply. This is achieved by requiring the court to impose a sentence equal to two-thirds of the sentence it would have considered appropriate if the offence had been committed immediately before commencement. This is a simple and straightforward formula. It will mean that the minimum term that must be served before a prisoner can be released will be longer by a few weeks and months but I do not shrink from that.

The proposals for automatic life sentences, mandatory minimum sentences and honesty in sentencing are the core provisions at the heart of the Bill. But the Bill also includes a number of other important provisions. Clauses 24 to 30 make provision in relation to the release of certain life prisoners. In part, those re-enact the existing provisions of the 1991 Act relating to prisoners serving discretionary life sentences. They also introduce new arrangements for the release of offenders serving a sentence of detention during Her Majesty's Pleasure, to give effect to the judgment of the European Court in Singh and Hussain. The power to set the tariff in such cases remains as now with the Home Secretary, and the new provisions place no restrictions on that. But in future the Parole Board rather than the Secretary of State will determine whether to release such offenders once they have served the tariff.

Part III of the Bill contains new powers and provisions relating to community sentences, disqualification from driving, the transfer and repatriation of prisoners, young offenders and mentally disordered offenders.

Clauses 31 to 36 provide the courts with new powers and greater flexibility when dealing with fine defaulters and persistent minor offenders for whom a fine is not a suitable penalty. In future, courts will be able to impose a community service order, a curfew order or disqualify from driving as an alternative penalty for fine default.

Our aim is to ensure both that fines are paid and that imprisonment is only used as a sanction of last resort. The use of imprisonment for fine default has more than halved over the past 12 months or so—from 20, 157 in 1995 to 8, 220 for the first 11 months of 1996. The provisions for new community-based sanctions for fine default will help to reinforce that trend.

Clause 33 similarly allows the court to impose a community service order or curfew order on a persistent minor offender who has an outstanding fine and for whom a further fine would not be appropriate. Clause 35 provides a new power for the courts to disqualify offenders from driving either as an alternative or additional penalty for any offence. That will be an important and useful new sanction.

Imprisonment, community penalties and fines all have a part to play in the sentencing framework, and these new provisions are designed to ensure that the sentence imposed is effective and appropriate in all the circumstances of the particular case. That is also why Clause 34 removes the requirement to obtain the offender's consent to a community sentence, with certain limited exceptions. It is quite wrong that offenders should be allowed to dictate their sentence to the court.

Clauses 38 and 39, and Schedules 1 and 2, set out new arrangements for the transfer of prisoners between the various United Kingdom jurisdiction; and for the repatriation of British prisoners from abroad. Those changes are necessary in part as a consequence of the new sentencing provisions contained in the Bill. We have also taken the opportunity, in the light of experience, of operating the present arrangements to improve the statutory framework for prisoner transfers.

Clauses 40 to 42 contain important new sanctions in respect of juveniles. Following the successful trials of curfew orders monitored by electronic tagging, courts will in future be able to pass that sentence on 10 to 15 year-old offenders. And juvenile offenders will no longer be able to hide behind a cloak of anonymity. Courts will be able to allow the publication of offenders' names in appropriate cases, which is of course the normal practice in relation to adults. Clause 41 rectifies an anomaly in relation to the maximum penalty for indecent assault. It increases the maximum penalty for juveniles convicted of indecent assault on a male to 10 years, in line with the maximum penalty for adults convicted of that offence and in line with the maximum for other adults or juveniles convicted of indecent assault on a woman.

And, finally, Clauses 43 to 46 make provision for a new hospital direction which will provide the courts with greater flexibility in dealing with mentally disordered offenders. The court now has to choose between a hospital order and a prison sentence. But the present arrangements do not reflect the reality that some offenders need hospital treatment but also bear a significant degree of criminal responsibility for their actions. In future, the new hospital direction will enable the courts to direct the offender's immediate admission to hospital when passing a prison sentence. This means that the court can be sure that the offender will receive any necessary treatment in hospital at the earliest opportunity and can be returned to prison, if appropriate, to serve the remainder of the prison sentence.

That adds up to a formidable package of proposals. The Bill reinforces the powers and indeed the duty of the courts when sentencing serious, dangerous and persistent offenders. The mandatory penalties which are at the heart of our proposals are carefully targeted at crimes of particular concern to the public—serious violent and sex offences, domestic burglary and dealing in hard drugs. Our proposals for honesty in sentencing will restore credibility to the court's sentence and ensure proper supervision after the offender is released. The Bill will provide more flexible and effective community penalties, and new powers for the courts when dealing with mentally disordered and juvenile offenders. And most important of all, it will provide protection and reassurance for the public; and thereby help to improve public confidence in the criminal justice system. I commend the Bill to your Lordships' House.

Moved, That the Bill be now read a second time.—(Baroness Blatch.)

3.36 p.m.

Lord McIntosh of Haringey

My Lords, the House is grateful to the Minister for the conscientious way in which she set out the provisions of the Bill. She is right in saying that it is an important Bill. As evidence of that we need only to look at the long list of distinguished speakers who put their names down to contribute to this Second Reading debate.

It is important that we see the Bill in the context of the Government's whole approach to law and order. This is the 34th criminal justice Bill introduced since this Government came into power in 1979. That is equal to the entire number of criminal justice Bills introduced by any government between the years 1900 and 1979. We should beware of thinking that in some strange way quantity of legislation is equivalent to quality of legislation.

The truth is that the amount of legislation introduced by this Government is evidence not of the success of their law and order policies, but of their failure. We face the position where, since 1979, recorded crime has doubled. That is the truth of the matter. At the same time, we must recognise that the chances of getting away with crime have increased significantly. One example of that, which is one that is not affected by the mandatory determinate sentences in the Bill, is street robbery. There are five times as many street robberies now as there were in 1979; but a street robber has three times the chance of getting away with his crime. Another example is youth crime. There has been a 36 per cent. increase in recorded offences by young people since 1979 but also a 36 per cent. reduction in the number of young offenders dealt with by the courts. That is the context in which we should be looking at the Bill.

The Minister properly recalled the debate in this House on the White Paper introduced by the noble and learned Lord, Lord Taylor of Gosforth, on 23rd May last year. Anyone who sat through that debate, as I did, will agree that the thrust of the debate was not necessarily that all of the Government's proposals were wrong, but that they represented only a small part of the necessary reaction to the crisis in our criminal justice system.

The Government have chosen in this Bill, in what the Minister called the "core proposals", to concentrate on the length of sentences rather than other aspects of the criminal justice system. I have spoken about the debate in this House on 23rd May last year. It is fair also to say that the Second Reading debate on the Bill in the Commons in November of last year was also, in many ways, a remarkable debate. Your Lordships would not thank me if I spoke at length about the speeches from the Government or Opposition Front Benches but I think it is within the limits of order in this House for me to refer to the remarkable speeches of two former Conservative Home Secretaries; Mr. Douglas Hurd and Mr. Kenneth Baker.

Mr. Hurd reminded the House that the criminal justice system is not in the hands of the Home Secretary or the Government but rather of the police force, the Crown Prosecution Service, the judges, the magistrates, the prison service, the probation service, the Parole Board and so on. That is a consideration which ought to infuse our discussion of the Bill. He also said—I shall be careful just to paraphrase rather than to quote—that whether prison works depends not only on the length of the sentence but also on what happens in prison. That, again, is a theme to which we shall have to return as we consider the Bill. In a very interesting speech, Mr. Baker said that the prisons are full not so much of professional criminals but of professional prisoners; people who are—he used this phrase which I am sure I am allowed to quote—"wholly inadequate". He reminded the House of the implications, to which I shall be returning again, of the Woolf Report.

We have from another place an example of a wider horizon than has been offered by the text of the Bill itself or the way in which the Minister introduced it. We are reminded, as Lord Justice Lawton reminded the court in R v. Sergeant, of the purposes of imprisonment: retribution, deterrence, prevention and rehabilitation. I ask your Lordships to bear all of those in mind, not least the last of them, in your consideration of the Bill.

I wish to speak, first, about the issue of honesty in sentencing. I find—and a good many people outside find—that the Government's proposals on honesty in sentencing are confusing, self-contradictory and, of course, still evolving. In some ways they are evolving to the good. The Minister referred to the agreement that post-release supervision should be extended from the 15 per cent. originally proposed to a figure now of 25 per cent. It is only proper to welcome that change. But there will have to be many more changes if this part of the Bill is to go through in a satisfactory way.

The Parole Board's response to this part of the Bill is devastating. It states: The Bill puts the public at greater risk from the most dangerous criminals than existing parole arrangements". I very much look forward to the speech of the noble Lord, Lord Belstead, who is not only the chairman of the Parole Board but a former Leader of this House and has exceptional authority in speaking on these matters.

We have made our position on honesty in sentencing clear for many months now. We believe that the court should spell out the reality of the sentence at the time of passing sentence. For example, a sentence should be for two to four years, which is spelt out as being two years if there is full remission for good behaviour and parole, and four years if there is no remission and no parole. I know the Minister finds this amusing but some of your Lordships may perhaps think that there are serious issues to be considered. We consider that the court should specify the effect on the sentence of the time spent on remand and custody. There has been a great deal of confusion about the time spent on remand and custody. The prison service and the Home Secretary were at one stage locked in conflict on their interpretations of the existing law. I recognise the necessity to put that right. I hope that the Government have put it right in their drafting of the Bill.

Finally, we believe that the court should specify the earliest release date that can be associated with a given sentence. The point about these proposals is not only that they are much clearer than the Government are saying in the Bill but that they could be introduced straight away. The problem with so many of the Government's proposals, particularly the proposals on minimum sentencing, is that they will take years to introduce.

I turn to the issue of consistency in sentencing. This issue is of equal importance to honesty in sentencing but is one which is given very little attention in the Bill. There are enormous differences, not just between one magistrates' court and another but between one Crown Court and another, in sentencing in different parts of the country. I shall not give the examples that have been quoted in detail in another place except to say that they range from, for example, in the magistrates' courts in Staffordshire, Moorlands, one in six offenders brought before the court receiving an immediate prison sentence, whereas in Saffron Walden not a single defendant in the past year has been gaoled for a serious offence. There must be some reason other than genuine local differences to account for differences of that kind. I can assure the House that they apply in Crown Courts as well.

Is not the problem that we have inadequate Court of Appeal guidelines for sentencing, at least in some areas? I know that there are many guidelines. Perhaps I may quote Professor Andrew Ashworth of King's College, London: The decisions on domestic burglary are a veritable wasteland in terms of guidance". Domestic burglary is one of the areas with which the Government have chosen to deal in the Bill. We must have some provision for the guidelines not only to be comprehensive and well understood but for the courts to have regard to them. We shall be addressing that issue in amendments to the Bill.

I turn now to the most controversial of all of the issues in the Bill—the question of what we call progression but which the Government have interpreted as meaning mandatory sentences for subsequent offences. I note in passing that this represents a 180 degree U-turn from the provisions of the Criminal Justice Act 1991 under which the courts were required not to have regard to previous offences in reaching their conclusions about sentencing. Those provisions did not last very long and were unwise. But we have to consider the practicability of what is proposed in the Bill.

My party has supported in another place the mandatory life sentence for a second violent crime. That is not an imposition by government on the judges, because the tariff for a life sentence is set by the judge and the release date is still set by the Parole Board. However, there are still problems even in that clause of the Bill—Clause 1—with, for example, the list of offences. There has been a good deal of debate about the implications of Section 18 of the Offences Against the Person Act 1861, which, as has been pointed out, particularly by Sir Ivan Lawrence, has a fall-back for Section 20 of the 1861 Act. We have to ask whether the Crown Prosecution Service will prosecute under Section 18 if there is to be a mandatory minimum sentence.

Then there is the whole question of unlawful sexual intercourse with a girl under the age of 13. Only 55 per cent. of convictions for unlawful sexual intercourse with a girl under the age of 13 result in a custodial sentence. We have to ask whether it is right that that should appear in the list with the other violent crimes, which are included in Clause 1.

Mandatory determinate sentences in Clauses 2 and 3 are at the heart of the Bill, which has been sent to us, as the Minister has reminded us, by an elected Chamber. We recognise the pressure that there must be for exemplary sentences. Our approach to this part of the Bill will be to revise, not to wreck, the Government's proposals. As a revising Chamber, we believe that we should be examining and probing the exact meaning of the Bill and in particular the meaning of the phrase "exceptional circumstances". That phrase has one meaning in Archbold and another in the speech of the Home Secretary at Second Reading when he spoke about the possibility of an informant of great help to the police being "an exceptional circumstance" even though that is not something that was not foreseen in the more classical definition.

In searching for non-wrecking amendments to this part of the Bill, we would like to consider whether it would be desirable to add to the phrase "exceptional circumstances", the further phrase "in the interests of justice"; whether we should not be seeking greater precision by adding the phrase "exceptional circumstances" in relation to the offender or to the offence; and whether we should not be—and this is a much more complex issue which deserves teasing out at length—excluding from the tariff of qualifying offences for a mandatory minimum sentence those offences committed when the offender was a juvenile.

We would also like to consider other issues which would affect whether the mandatory minimum sentence would work. Unless it can be shown that it can, it is not worth enacting. I have mentioned the question whether the Crown Prosecution Service will prosecute in those circumstances. We also have to ask whether juries will convict. Here the American experience is of very great significance. We have to consider the implication of an increase of not guilty pleas despite what the Minister says, which I cannot find in the Bill, about a 20 per cent. reduction for a timely guilty plea. The evidence of those who apply mandatory minimum sentences is that there is an increase in not guilty pleas with subsequent effect on the court workload and especially on the speed of the justice system and in particular—and this is most critical—the youth justice system.

We have to ask what will be the effect of the admitted increase in the prison population. The Government say that there will be an increase eventually of 11, 000. We have to ask what will be the effect on prison conditions, rehabilitation, education and training. I refer here not only to Mr. Hurd's speech at Second Reading in the other place but also to paragraph 1.12 of the White Paper. There is also the effect on public expenditure. We have to ask the question whether Home Office future expenditure plans, as expressed in publications at the time of the Budget, are realistic to allow for these increases in the prison population. All these factors must go into the balance when we consider whether the Bill has got right the whole issue of progression and of the mandatory minimum sentence.

As the Government claim, if the issue is the protection of the public at the end of determinate sentences, it has to be said that that is not solved by longer determinate sentences. At the end of such sentences, offenders still go out into the country with, as the Government are ready to admit, less supervision than used to be available. I refer here not only to the Butler committee of 1975, with its advocacy of reviewable sentences, but also to paragraph 8.9 of the White Paper, which refers to the need for reviewable indeterminate sentences for sex offenders.

I must come to an end. There are many other issues with which we shall be concerned in Committee. As I have said, we are concerned with the period of post-release supervision and the provisions of the Bill in relation to what was said in the White Paper. I have already referred to paragraph 8.9. It says that at the end of supervision there is no way of monitoring and controlling the activities of offenders. That is a matter which must continue to give us pause. We shall be concerned with court psychiatric assessment schemes and in general with the whole issue of the treatment in the courts of mental disorder. My noble friend Lord Dubs will be making particular reference to that in the debate. We shall be concerned with testing the treatment orders for drugs, which we consider to be inadequately dealt with in this Bill. We shall be concerned with trying to simplify and rationalise the proposals for continuity of sentencing—which we are convinced that the Government have not got right yet—in order to make sure that the sentence changes proposed here have a broadly neutral effect.

We did not vote against this Bill either at the beginning or at the end of its proceedings in another place. Clearly, we shall not be doing so today, neither are we opposing the Bill root and branch. But your Lordships' House has the responsibility of acting as a revising Chamber and I can assure noble Lords that we on these Benches will be playing our full part in that process.

3.57 p.m.

Lord Rodgers of Quarry Bank

My Lords, I believe that this is a bad Bill with few redeeming features, foolishly conceived, wrong in principle and deceptive in its relevance to the real fight against crime. It will be very expensive to implement, and that money would be far better spent on the prevention and detection of crime.

I am disappointed at the Labour Party's agnosticism or neutrality towards the central core of the Bill. I believe that the noble Lord, Lord McIntosh, confirmed that. I remember the clear speech of the noble Lord, Lord Williams of Mostyn, on 23rd May 1996 when he spoke out strongly in favour of the individualism of sentences. I thought then that his remarks about the White Paper would be carried over to our debate today on the Bill. It may be that when he comes to speak later we shall hear something different from him.

We must remember that the Labour Party did not vote against Second or Third Readings in another place. Indeed, as the noble Baroness, Lady Blatch, said very temperately today, it gave the Bill a measure of support. Despite the hesitancy of the noble Lord, Lord McIntosh, there are many noble Lords on these Benches and in all parts of the House who thoroughly dislike this Bill. It has been presented—and it may be so again today by some observers—as a conflict between the Home Secretary, Michael Howard, and the judiciary. The contributions of noble and learned Lords to this debate will be of very great interest.

The issues are for all of us concerned with crime and remedies, and especially false remedies, for it. It is not the custom of your Lordships' House to vote against a Bill at Second Reading. Were that not the case I would certainly advise my noble friends to do so as my colleagues did in another place. But I give notice now that at Committee stage from these Benches we shall support any amendment or, if necessary, table one of our own to replace "exceptional circumstances" with "in the interests of justice" or similar words, in appropriate places in Clauses 1, 2 and 3.

The noble Lord, Lord McIntosh of Haringey, said that he would like to consider adding the words "in the interests of justice" to "exceptional circumstances". He said that he would probe the meaning of those provisions when the time came. I should like to make it clear this afternoon that we on these Benches are very sure about what we want the Bill to do and about the way in which we believe that it should be amended. Those clauses go to the heart of the matter. Their purpose is plain in the text of the Bill. I agree that the Minister explained the Bill conscientiously and made clear exactly what those provisions mean.

The Bill requires a court to impose a life sentence or a custodial sentence in specified circumstances. To that extent, it removes discretion from judges unless exceptional circumstances apply. Those exceptional circumstances have been narrowly defined by the Home Secretary. Indeed, on Second Reading, he chose to give as his exception somebody appearing before a court who gives the police exceptional help which enables them to bring a number of other serious criminals to justice. Clearly, the Home Secretary has somewhat of a fixation about "exceptional". I do not find that a reassuring example.

The alternative view, which we on these Benches support, is that the circumstances of each crime and of each criminal are such that only a judge sitting in court can decide the appropriate punishment. Some will say that interfering with the discretion of judges attacks the root of the separation of powers which is fundamental to our constitution and to the stability and smooth running of our society. That may be so—it is an important argument—and, despite what has been said earlier today, this Bill goes very much further than any previous legislation.

However, what is also important is that justice will be less often done and, despite what the Home Secretary may think, less often seen to be done. Many more people—11, 000 on the Government's estimate—will go to prison. I hear the argument that that will take 11, 000 more dangerous men and women out of circulation. They will be locked up and away from trouble. However, as I said in a debate on the Address—the noble Lord, Lord McIntosh, said this today—unless they are held in prison for ever, one day they will be turned out into the community. Longer sentences and too little money for rehabilitation and education will have the cumulative effect of creating more crime by criminals even more hardened in their criminal ways. At best, 11, 000 more men and women in prison will mean pushing the problem forward on to the next generation.

Home Secretaries have a particular responsibility to look beyond their own immediate term in office. Their duty is to take the long view. In difficult matters they should seek to lead public opinion, not simply bow to a passing mood or reflect the lowest common denominator of informed comment. Most Home Secretaries achieve that difficult task, but I regret to say that on his record this Home Secretary has not even tried.

In the prevailing mood—I am not referring only to Home Office matters, and least of all to this Bill—Ministers are often held to be responsible for everything. That is not a belief which most Ministers discourage because they believe that that belief itself may bring them some Brownie points. After long years in office they respond readily to the suggestion that if there is a perceived problem, they and they alone must come up with the solution. However, sometimes Ministers must say, "This is not a matter for me or for the Government. It is better to leave the responsibility where it lies". That is precisely what the Home Secretary should have done in this case. He should have said, "This is not a matter for me. It is not a matter for any Minister in any government at any time. It is far better left with the judges". In such emotive areas, it is better to stand up to the tabloid press and not to play to the gallery at a party conference.

Perhaps I may direct your Lordships for a moment to the 1996 British Crime Survey, which was published by the Home Office on 24th September last. I turn particularly to Section 7 on the fear of crime, which is the essence of the case for this Bill. The survey was conducted by the research and statistics directorate of the Minister's own department. It contains a paragraph showing trends over time in people's worries and anxiety about crime. It states of rape: Women's concern has not changed a great deal, being highest in 1988"— nine years ago. It states: Worry about burglary was highest in 1994 —three years ago— but fell back in 1996 to 1984 levels"— 13 years ago. It states of mugging: The proportion 'very worried' has varied less over time, but again fell back in 1996". Elsewhere the survey states that the proportion of women feeling very unsafe—that is, when out at night on the streets—has not changed greatly over time. As for those who felt most in danger of physical attack, the lowest figure nationally was for the elderly—4 per cent. for elderly men and 3 per cent. for elderly women. The survey stated: A common media portrayal is of many people living as virtual 'prisoners in their home' because of fear of street crime". But overall only 3 per cent. of women and 1 per cent. of men gave crime-related reasons for never going out at night.

I quote those figures from the Government's own publication because there is a need for perspective and balance and for respecting what those figures show. The fear of even a small minority of men and women is a fear which we must share and which must concern us all. At the same time, however, according to the Government's figures, those fears are no greater today than 10 years ago, so why is the Bill before us now and why is it in this form?

As for the prison population—we must be deeply concerned about this for reasons which are familiar to all of your Lordships—it hit a new record of 58, 504 on 6th December last and, despite the customary dip following the Christmas period, it is almost certain to exceed that by Easter. Last autumn the Director of the Prison Service, Richard Tilt, said that the prison population was set to rise by 250 to 300 a week. That seems to have been confirmed—at least at the lower end—by subsequent events; and that has happened, of course, without the effect of the provisions of this Bill. I should be grateful if the Minister could tell the House her estimate on present trends—the estimate made by her department for public expenditure and building purposes—of the likely prison population by 2010 without the addition of the 11, 000 new prisoners expected as a result of this Bill. Will the noble Baroness also tell the House where prisoners are to be accommodated when the prisons are full but the prison building programme remains uncompleted? Are they to be accommodated in disused military camps, in a former Pontins holiday camp (as has been rumoured) or is the front runner still a prison ship? Can the Minister say categorically that police cells will not regularly be used?

I should also be grateful if the Minister could clarify the costs of Parts I and II of the Bill in terms of their consequences for the prison population. In the debate on the Address on 24th October last, in response to a question from me, the Minister referred to an estimated peak of between £375 million and £425 million per annum some 12 years after implementation. That is the figure in the Financial Memorandum, with a minor change at the top end which has been raised by £10 million to £435 million per annum—a remarkably precise top end, given the wide range. I am curious about where the extra £10 million has come from, although it may be an error. I have seen no figures—I may have missed them, in which case perhaps the Minister can supply them today—showing the annual build-up to such figures or the cumulative figures over 12 years. These figures must exist for planning purposes. First, it would be helpful if the Minister could provide the figure for the first year of implementation and the figure for the mid-point, say the sixth year of the build-up. Secondly, can the Minister provide the cumulative figure up to year 12 when the annual cost is in the range to which I refer? The Minister has also referred to the role of private finance in respect of new prisons. Can she also say what element of capital falls under public expenditure and what is the cumulative total over the 12 years?

All of these figures are very relevant because there are alternative ways of using this money. It would be fatal to the purposes of this Bill and extremely damaging to the fight against crime if adequate provisions were not made for those in prison to enable those who could be rehabilitated and trained to take their place in the community afterwards. If that is neglected nothing that your Lordships may do in this Bill today or any other day will achieve the purpose that we all have in mind.

In the memorable and sometimes moving debate in your Lordships' House on 23rd May last the noble and learned Lord, Lord Taylor of Gosforth, said: I venture to suggest that never in the history of our criminal law have such far-reaching proposals been put forward on the strength of such flimsy and dubious evidence".—{Official Report, 23/5/96; col. 1025.] He was referring to the White Paper. But those proposals, unchanged in substance, form the core of this Bill. I am content to rest on what the noble and learned Lord, Lord Taylor, said on that occasion.

4.12 p.m.

Lord Bingham of Cornhill

My Lords, I am in complete agreement with the noble Baroness and previous speakers in recognising that current levels of crime in this country are a source of acute and proper public concern. I venture to suggest that the judges have cause to feel this concern with particular immediacy since they witness day by day the devastation caused by violence, lawlessness and abuse. We know, perhaps better than anyone, that the victims of crime are not by and large the rich and privileged but the less well to do: the residents of run-down inner city tower blocks and neglected housing estates and those who are in many ways the most vulnerable and defenceless members of society. I hope that your Lordships will give no credence to the subversive lie sometimes heard that the judges are, for some reason, indifferent to the evils of crime.

There are nevertheless three major ingredients of this Bill which cause me and those of my senior colleagues outside this House whom I have consulted profound anxiety. I refer to the proposal to shorten remission and abolish parole for prisoners serving determinate sentences; the proposal to impose automatic life sentences in certain specific cases; and the proposal to impose mandatory minimum sentences on repeat burglars and drug dealers. These provisions are likely to have a profound effect on the lives of those to whom they apply and the administration of criminal justice in this country. That is not in itself an argument against them, but it is necessary to test each of the proposals by asking four questions. Will it be just? Will it serve to reduce levels of crime or increase the protection of society? Will it be cost effective? Will it work in practice? I feel bound to tell your Lordships that in my judgment these measures conspicuously fail to pass all four of those tests.

I begin with parole and remission. As many of your Lordships well know, the existing regime was put in place in 1991 following a far-reaching, careful and respected inquiry by a committee presided over by the noble Lord, Lord Carlisle of Bucklow. It draws a distinction between short term and long term prisoners, the dividing line being a sentence of four years. A short term prisoner is entitled to release on parole, subject to good behaviour, half-way through his sentence. For the whole of the remaining period of the sentence such a prisoner is liable to recall to prison if his conduct gives cause for concern and for the first half of the remaining period he is subject to supervision in the community if he has been sentenced to 12 months or more. A long term prisoner is eligible for the grant of parole by the Parole Board having served half his sentence, and he is entitled to be released, again subject to good behaviour, after two-thirds. Such offenders are also subject to supervision on release and liable to recall until the end of their sentence.

This regime has certain obvious strengths. It is clear and intelligible. It ensures that every day of the sentence pronounced by the court has practical content. It enables offenders to be reintroduced into the community conditionally. It enables decisions on the release of more serious offenders to be based on the experienced judgment of an independent body. It enables offenders whose behaviour in the community causes concern to be recalled quickly and with the minimum legal formality and delay. It avoids the prolonged incarceration of those whom it is judged safe to release. It is a regime that has worked well in practice. The validity of the research that led to its adoption has not been in any way impugned.

One asks why such a system so recently instituted is to be cast aside. The answer is to be found in the slogan "Honesty in Sentencing". Your Lordships will react with surprise to the suggestion that a scheme approved by the noble Lord, Lord Carlisle, can be regarded as other than honest in any way. Of course, it is not, as I have tried to demonstrate. If the system has not been understood, that problem can be met by judges explaining the effect of the sentences they pass, which they have not been encouraged to do, or by Ministers seeking to educate the public, which as far as I know they have not attempted to do.

The effect of the new provisions is that prisoners, long or short term, will spend a greater proportion of the sentence pronounced by the court behind bars. That proposal standing alone may not be objectionable, but there are overwhelming disadvantages. First, the period of a sentence that a prisoner will not have to serve will be less clear and predictable than at present. Secondly, the overall period of control by supervision and licence will in all cases be shorter than at present. Thirdly, the invaluable provision for recall during the licence period will be lost. Fourthly, judgment on release of more serious offenders will no longer be made by the Parole Board and prisoners will remain in prison when their continued confinement serves no useful public purpose. Fifthly, the proposals for remission—a maximum of three days a month for those whose behaviour attains the prescribed minimum standard and a maximum of three extra days a month for those whose behaviour has exceeded that standard—will prove incapable of fair operation.

Prisons vary widely in the programmes and facilities that they offer, which become more and more restricted as the prison population rises and the squeeze on the prison budget bites. In many cases it will not be practicable for a prisoner to demonstrate compliance with more than the minimum standard. The decision whether to make an allowance of the additional three days—a decision to be made every two months (six days per two months)—will in practice have to be made by a uniformed landing officer. It would be hard to devise a system more obviously open to corruption or allegations—true or false—of favouritism, inconsistency, racial bias or discrimination, and there will inevitably be a flood of appeals unless the additional days are routinely allowed. Sixthly, research figures—so far as I know, unchallenged—convincingly show that good behaviour in prison is not on its own a reliable indicator of lawful behaviour on release.

It is the intention of the Bill that offenders should not spend longer in prison than they now do. To that end, it is provided in Clause 22 that judges should impose sentences two-thirds of the length of the sentences they would otherwise have passed. If this provision should ever become law, the judges will of course do their best to comply with it. But I have grave fears as to whether they will succeed in doing so. As the noble Lord, Lord Windlesham, has highlighted in volume 3 of his important book, various elements of the mass media have a clear agenda of arousing public disquiet about allegedly lenient sentencing. As a result, judges are frequently and routinely castigated for passing the sentences they do. It requires little imagination to foresee the outcry there will be when a statute, commended to the public as a tough law and order measure, leads to the imposition of sentences one-third shorter than the public and the press are accustomed to hear. This provision also has the effect—apparently unforeseen by the draftsman—of reducing from six months to four the maximum sentence which can be imposed by a magistrates' court, and of revising the maximum sentence of detention on a young person. This is the almost inevitable consequence of ill-considered tinkering with what is, in truth, a complex system.

The slogan "Honesty in Sentencing" may be new. The underlying idea is not. The principle that an offender should serve the sentence pronounced by the court without reduction was briefly in force following the Penal Servitude Act 1853. It did not work then. This modified version of that principle will achieve nothing of value now. It would be tragic indeed if, 150 years later, we had to learn this lesson again.

I turn to the provisions of Clause 1, requiring the imposition of an automatic life sentence on a second conviction of certain serious sexual and violent offences. Unlike the provisions for remission and parole, this clause addresses a serious penal problem. There is a hard core of offenders sentenced to determinate terms of imprisonment who represent a serious danger to the public on being released. It is appropriate to consider what additional protection can be provided. Unfortunately, the solution contained in Clause 1 is irremediably flawed.

It is a cardinal principle of just sentencing that the penalty should be fashioned to match the gravity of the offence and to take account of the circumstances in which it was committed. Any blanket or scatter-gun approach inevitably leads to injustice in individual cases. Such a result is, I suggest, obvious. But if it is not, it is borne out by authoritative independent research, based on an analysis of those prisoners whom the Parole Board on last review considered to be most dangerous. The research shows that nine out of 10 of these high risk offenders would not be covered by Clause 1, and that one-third of those who would be covered would not be regarded by the Parole Board as dangerous. Your Lordships will be aware that those who perpetrated the tragedies at Hungerford and Dunblane were men with no criminal record. This measure is simply misdirected.

It will also give rise to indefensible anomalies. Commentators have given examples. A man who had sexual intercourse at the age of 16 with a girl of 12 will be automatically sentenced to life imprisonment if, in middle age, he intentionally causes serious injury in the course of a public house brawl. A man convicted as a teenager of wounding with intent to cause serious injury will be automatically sentenced to life imprisonment if, at the age of 50, he returns home drunk and attempts to have intercourse with his wife against her wishes. These are not anomalies of the kind which even the best legal system occasionally produces. They are symptoms of a radically unsound approach.

To some extent, measures of this kind are also self-defeating, for no defendant faced with an automatic life sentence on conviction is likely to plead guilty. This not only means, as evidenced in the United States, a vastly increased workload of contested trials, with all the expense and delay and trauma for vulnerable victims and other witnesses which that involves. It also means that in some cases, perhaps because of intimidation, there will be acquittals, depriving the public in such cases of any protection at all.

These ill results may be in part avoided, but if they are the process of avoidance will itself be deeply objectionable. In the United States, where measures of this kind have been in force for 20 years, experience shows that the effect of taking discretion away from the court is not to destroy it but to transfer it—away from the judge and to prosecutors, defence lawyers and juries. Where on the facts of a particular case the imposition of an automatic penalty offends the conscience of an ordinary person, American prosecutors have charged offences less serious than the facts warranted which attracted no automatic penalty; or pleas of guilty have been offered and accepted to such lesser offences; or juries have convicted of such lesser offences. Sentencing discretion should not be exercised by crown prosecutors, or defence lawyers, or even juries. It should be exercised, as it always has been, by judges.

But what if a judge fails to impose a life sentence in a case covered by Clause 1 where the safety of the public demands that he should? What then? There exists a procedure tailor-made to meet that problem: the power of the Attorney-General to seek to refer sentences to the Criminal Division of the Court of Appeal on the ground that they are unduly lenient, asking for substitution of a more appropriate sentence. The power exists where a determinate sentence has been passed and it is felt that the protection of the public demands an indeterminate life sentence. The proposal in Clause 1 might foster the impression that the Attorney-General had repeatedly made such application in such cases and been denied. That is not so. Neither he nor the Home Office has ever to my knowledge suggested that it is. During the calendar years 1995 and 1996, the Court of Appeal, on references by the Attorney-General, reviewed the cases of 86 offenders in whose cases a life sentence could have been imposed. In only four of those cases did the Attorney-General ask the Court of Appeal to substitute a life sentence. In two cases the court did so, in two it did not. In one other case it did so although it had not been asked. Where such an application is made, it is judged on its merits and an indeterminate sentence substituted where the public interest is shown to demand it. It is open to the Attorney-General to submit that prevailing levels of sentence for a particular offence are too low; in a recent case, the Court of Appeal accepted that submission and increased the level. But such decisions will be made on a case-by-case, and not on a scattergun, basis. If this procedure is for any reason thought to be unsatisfactory—and I know of no reason why it should—consideration should again be given to the reviewable sentence recommended by the Butler Committee 20 years ago.

Thirdly, I would like, if I may, to say something about Clauses 2 and 3 of the Bill; the proposed mandatory minimum sentences for Class A drug dealers and burglars on third conviction. The terms proposed—at current levels, the equivalent of ten and a half years in the one case and four and a half years in the other—do not exceed those which serious professional criminals in these fields would now expect to receive—drug dealers are, indeed, routinely sentenced to very much longer terms.

The vice of these proposals again lies in their indiscriminate, scattergun nature. It is one thing—and a very serious thing—to operate as a large wholesale supplier of heroin or cocaine. It is quite another to buy two ecstasy tablets at a party, one for yourself and another for a friend. Yet both fall within Clause 2 of the Bill. It is one thing—and again a very serious thing—to strip someone's home of its valuable contents, accompanied perhaps by terror to the householder or gratuitous and offensive vandalism. It is quite another to take a gallon of petrol from an outhouse or to reach through an open window and take a pint of milk. Yet both are domestic burglary within Clause 3. A skilful professional burglar who avoids detection until he is brought to book on the same occasion for 50 domestic burglaries or a professional drug dealer eventually tracked down for the first time are not subject to the mandatory penalties. A feckless small-time burglar who is caught each time, or an addict dealing in small quantities at street level, is so subject. Anomalies of this kind are not the stuff of sound lawmaking.

Many of the objections to Clause 1 apply to Clauses 2 and 3 also. There is the same certainty of injustice in individual cases if account cannot be taken of the gravity of the offence, the pattern of offending, the lapse of time between offences and the circumstances of the offender. There is the same risk that prosecutors, defence lawyers and juries will connive at circumvention of the mandatory terms in order to do justice in individual cases. There is the same risk of a sharp increase in the proportion of contested trials, as in California where the rate of trial has increased two and a half times. But there is here an additional vice; it is proposed that the maximum discount from the mandatory minimum penalty should be 20 per cent. That is below the discount now frequently allowed, and well below that where a defendant is willing to give valuable intelligence to the Crown or to spare a victim the trauma of giving evidence.

The current practice of the courts is the result of hard practical experience. If a defendant is to betray a gang of professional burglars, or the members of a powerful drug cartel, putting his own security and that of his family at risk, he needs a generous inducement. No knowledgeable observer could regard 20 per cent. as enough. And there is yet another vice. If these sentences are to be revised upwards, there will be an inevitable upward effect on other sentences, where necessary to maintain differentials or achieve broad comparability. There is bound to be a ripple effect. I apologise for detaining your Lordships for longer than I should—

Noble Lords

No, no, carry on!

Lord Bingham of Cornhill

My Lords, the justification advanced for Clauses 2 and 3, so far as one can gather, is twofold. The first is the principle, christened "incapacitation" by our American cousins, that so long as a person is in prison he cannot commit crimes. That is of course true. But the effect is very small. Recent Home Office research calculates that a 25 per cent. increase in imprisonment is required to reduce the number of offences by 1 per cent. No adequate justification is to be found here.

The second suggested justification is rested on the deterrent effect of these mandatory penalties. Both general and individual deterrence have an accepted place in sound sentencing, but deterrence cannot justify these mandatory penalties. It is known that only about 3 per cent. of reported crimes lead to convictions, so a rational, calculating criminal would think it worth taking the chance. But criminals are not, in the main, rational and calculating. As the Home Office itself said in 1990: Deterrence is a principle with much immediate appeal … But much crime is committed on impulse, given the opportunity presented by an open window or an unlocked door, and it is committed by offenders who live from moment to moment; their crimes are as impulsive as the rest of their feckless, sad, or pathetic lives. It is unrealistic to construct sentencing arrangements on the assumption that most offenders will weigh up the possibilities in advance and base their conduct on rational calculations". That informed judgment is reinforced by American experience. Between the early 1980s and December 1995, the heyday of mandatory minimum sentences, the American prison population rose from around 329, 000 to nearly 1.6 million. Not, your Lordships may think, a persuasive advertisement for the principle of deterrence.

The Attorney-General's power to refer unduly lenient sentences to the Court of Appeal does not apply to the offences covered by Clauses 2 and 3. If these clauses address a real problem—in my judgment they do not—the solution lies in an extension of the Attorney-General's power. If there is indeed a malignant disease, that is the obvious cure.

It has been suggested that the anomalies I have highlighted in Clauses 1, 2 and 3 and in the maximum discount of 20 per cent. on a plea of guilty, will be met by the repeated qualification based on "exceptional circumstances". This argument is based on a misconception. In the closely analogous context of suspended sentences, reflecting the clear meaning of "exceptional" as a familiar everyday expression and seeking to give effect to the intention of Parliament, the courts have given the word a literal and narrow meaning. It cannot sensibly mean different things in these two contexts. And I must tell your Lordships that to an experienced criminal judge very little will appear to be genuinely exceptional: while the facts of individual cases will be infinitely diverse, the broad patterns of criminal behaviour are in the main as repetitive as the seasons. This qualification contains no route of escape from the vice of these proposals: it simply obliges the judges to choose between emasculating the statute and doing what they regard as injustice.

My Lords, I have almost done. But I would, in closing, urge your Lordships to bear in mind those of our fellow citizens to whom these provisions will in the main apply. They are mostly young, in their late "teens" or early 20s, and mostly male. They have in very many cases endured extreme deprivation: broken homes; disturbed childhoods; poverty; periods in and out of care; abuse of various kinds; truancy and exclusion from school; unemployment; addiction to alcohol and drugs; and a lack of all those beneficial maturing influences which most of us have been able to take for granted.

I do not insult your Lordships by suggesting that these are innocent victims of determinist causes beyond their control. Of course not. But I do suggest that in discharge of our duty to our fellow men we should, instead of spending billions on new prisons, double and redouble existing efforts to identify and treat delinquents at the very earliest sign of delinguency, before—long before—they are sucked into the destructive maw of the penal system.

Noble Lords

Hear, hear!

Lord Bingham of Cornhill

In that way, my Lords, we shall treat the disease and not the symptoms.

In 1910 Mr. Winston Churchill, speaking as Home Secretary in another place, drew attention—and I shall not commit the unforgivable sin of quotation—to the need to rehabilitate convicted prisoners in the world of industry, to make tireless efforts to find curative and regenerative processes and to maintain, "an unfaltering faith that there is a treasure", if only one can find it, in the heart of every man.

That was the thinking—wise, humane and moral—which animated penal thinking in the early years of this century. If, as the century and the millennium slide to a close, our penal thinking is to be judged by the thinking which animates this Bill, then I, for one, will shrink from the judgment of history.

4.41 p.m.

Lord Tebbit

My Lords, I suppose it must be the shortest straw that any one could draw in a parliamentary lifetime to rise to speak in support of a Criminal Justice Bill so comprehensively attacked by no less a figure than the Lord Chief Justice in the way that we have just heard. As ever, the noble and learned Lord, Lord Bingham, has made a most powerful speech—a speech not only of a most distinguished judge but also of a great advocate. But I believe that there is a question that he must ask himself, as indeed we should all ask ourselves; namely, why it should be—if he is right in all he has said—that not only do the general public outside Parliament believe that something akin to this Bill is needed but also the great majority of the Members of the other place should have reached that conclusion too?

We would be wise to stand back for just a moment and ask ourselves something about the nature of the increase in crime which has been besetting us in recent years. Quite clearly, the barriers against crime have fallen in many ways in recent times. I suggest now that the principal reason why people are beginning to think that they should not steal is not that there is an external commandment—that is, a commandment from outside our society which says, "Thou shalt not steal"—but that there is a prospect that one may be "nicked", taken to court and charged under the theft Act, or whatever it is.

The problem for our society is that as the moral and social imperatives against crime have weakened, particularly at those early stages of which the noble and learned Lord spoke, so perhaps we have been too late and always somewhat behind the game, if I may use that expression, in increasing the penalties to indicate not only that society still disapproves of crime but also to exercise some form of deterrent effect. Of course, as the noble and learned Lord said, so many of our criminals are inadequate. But, as he also wisely said—and it was a point that I believe the noble Lord, Lord Rodgers, may have slightly omitted to understand—so many of their victims are those who live with poor, reduced and unhappy circumstances round about them.

I suspect that there are a good many people outside this House in those circumstances—for example, in tower blocks in the decayed inner-urban areas—who, if they had heard our debate so far today, or even at the end of the day, would be inclined to say, "It's all right for them. They don't suffer crime in the way we do". While no doubt all of us, whether rich or poor and from all walks of life, would certainly uphold what has been said today about the need to improve our penal system and its effect upon those who fall into what I believe the noble and learned Lord described as its "destructive maw", I believe that there are many outside who would say that something more is necessary.

I found the speech made by the noble Lord, Lord McIntosh, most interesting and thoughtful. Again, it underlined our common cause in such matters, even if it exposed some of the differences which exist. However, I do not believe that they are across the Floor of the House particularly, although, as we are discussing a government Bill, there will naturally be an element of that. The noble Lord made quite an amount of the views of my honourable friend Sir Ivan Lawrence and those of my right honourable friends Mr. Baker and Mr. Hurd. However, I have to remind the noble Lord that, in the end, although Mr. Baker did not vote for the Bill, Mr. Douglas Hurd and Sir Ivan did.

I also believe that the noble Lord, Lord Rodgers, underestimated the effect of mandatory minimum sentences. Certainly among those of us who are capable of being deterred, as opposed to some of those who, as the noble and learned Lord, Lord Bingham, said, may not be capable of being deterred, they do have their effect. After all, they are commonly used against motorists. As far as I am concerned as a motorist, they have a very marked deterrent effect. If they did not, I can assure noble Lords that it would not be the fear of being deterred doing 100 m.p.h. on a motorway which would make any difference to me; indeed, it would certainly make no difference at all. It is the fear of losing my licence which makes the difference to me, and many others.

As always, it is a privilege to hear in this House the views of such distinguished members of the judiciary on a Bill of this kind. One of the advantages of this place is that we enjoy not only the wisdom of the Bishops but also the counsel and the experience of the judiciary. If I may say so, it is always more impressive and better to have those views expressed here than on the radio, on television programmes or in press reports.

I was concerned to hear on the radio and in press reports in the past few days the views of a number of judges on the Bill now before us. It is a great pity that so many judges have followed the rather unfortunate example of Judge Pickles, who could not resist talking into any microphone put in front of him. I believe that the standing of the judiciary has been damaged by an excessive entry into the political (and not, I hasten to add, the party political) field, not least because, once they enter this field, it opens the way to criticism of judges.

I understand the resentment of some judges about parliamentary guidance. But I suppose it is a two-way street. If I may say so, there are a number of us in politics who have at times resented the extension of the doctrine of judicial review in the way that has happened in recent years. At any rate, as a result of those happenings, especially that of judges speaking so much in public outside this House, I find myself, having almost all of my life regarded it as entirely improper for politicians to criticise the judicial conduct of judges, now doing so; and not too infrequently, I fear, in my role as a tabloid journalist. In my life, not just as a journalist or as a politician, but as a private citizen, I find the public are more confused and concerned about sentencing policy than any other aspect of criminal law. I do not believe it is enough for the noble and learned Lord the Lord Chief Justice to imply that it is the business of other people to explain to the public at large what judges are doing as regards the way in which they sentence; I believe that is not least the responsibility of the judiciary when they speak on these matters, and preferably in this House rather than outside.

I believe the Bill addresses the concerns of ordinary men and women in the street. In that respect it will help to stem what I fear is a growing loss of respect for the Bench in our country today. People simply cannot understand why an offender given a sentence of 12 months should walk totally free, by right, in six months. The noble and learned Lord made a strong case as to why it should be that way, but I think that battle has been lost. The public simply do not understand that, and I do not believe that we can at this stage bring them to understand. That is particularly the case if the offence is one for which Parliament has set a maximum sentence of 12 months, because that then becomes a term which cannot be served. As regards sentences up to four years, again, four years does not mean four; it means two, and in many cases even less as time spent on remand may be counted against the sentence under a formula so arcane that even those who had administered it for decades suddenly decided they had misunderstood it and quite wrongly—as it later transpired—released a number of criminals before their due time.

One can argue—I am sure that many of us will argue in Committee—that the detail of provision in this Bill might be improved. But it is hard to dispute, if justice is not merely to be done, but is seen to be done by the victims and the general public, the broad principle—subject to a clear formula for remission as a reward for good conduct in gaol—that the sentence served should be the sentence given. What is more, I am clear that such remission for good conduct is not, or should not be, given in the hope that a criminal who is good in prison may be good after his release. That is a somewhat forlorn hope. It is there to be given or withheld as an incentive to good conduct in prison. What the noble and learned Lord, Lord Bingham, said about the possibility of corruption and the possibility of pressure within prison is surely an indictment not of this Bill but of what goes on in prison and the difficulty which successive Home Secretaries have had in bringing our prisons more fully under control in that respect. A second feature of public concern is that habitual—

Lord Thomas of Gresford

My Lords, does the noble Lord support the concept that a judge when sentencing should explain in detail how much time a prisoner will serve, how much will be on licence and all the circumstances surrounding that sentence? Would that meet the noble Lord's concerns as regards the public failing to understand what sentencing means?

Lord Tebbit

My Lords, I realise that has not been the custom and there have been various pressures against it to date. However, it would be a good thing were it to be done. However, as I have said, we are now at the stage where it is probably almost too late to regain the confidence of the public by so doing.

A second feature of public concern is that habitual criminals seem not to suffer an appropriate penalty for repeated offences. The noble Lord, Lord McIntosh of Haringey, referred to the view of my right honourable friend Kenneth Baker that many of those in prison are professional prisoners rather than professional criminals. He is probably right. However, the man in the street would probably say, "It may be that there are some in prison who should not be there, but there are a darned sight more who are out of prison who ought to be there". That he would see as the purpose of this Bill.

In some cases of violence and some sexual offences the maximum sentence is life. That is rarely used. Indeed, life terms are not often served even by those guilty of homicide. I remind the House that since 1963, 87 people have been killed in England and Wales by persons previously convicted of homicide and subsequently released to kill again. That does not say too much for our efficiency in deciding who should be released from gaol. The rate of such killings is, sadly, increasing and currently runs at about four cases a year.

We are told that in 1994 more than 200 offenders convicted of a serious sexual or violent crime were reoffenders. In their case prison had not worked, nor was it given a proper second chance to do so by keeping those offenders out of circulation. Fewer than 5 per cent. received the life sentence which was available to the court. Even those, of course, would be able to be released should the Parole Board so decide. One has to ask whether it is right that courts seem determined not to use the sanction which Parliament has provided to protect the public?

So far I have not heard a good enough answer to that question. Therefore, I intend to support the proposals put forward by my right honourable friend the Home Secretary. That also applies to the proposed mandatory sentences for professional dealers in hard drugs. As I understand it—I seem to have been corrected by the noble and learned Lord the Lord Chief Justice—that would apply to people casually selling the odd ecstasy pill. I hope that is not so, because I believe that is not what the public would understand by a professional dealer in hard drugs. It is important that people who are tempted to commit such crimes should know the penalty they will pay for a third offence, and not be able to delude themselves that they will get away with a sob story of some kind and a lighter sentence.

The same is true for professional burglars. Here Parliament has prescribed a maximum sentence of 14 years. However, I am told that even after multiple convictions the average sentences are under two years. When my noble friend replies to the debate perhaps she will tell us how often, if ever, that maximum sentence which Parliament has prescribed is used.

Finally, the proposals to improve the supervision of sex offenders seem to me to be a step in the right direction. Clearly there is room for discussion about all these provisions, as indeed there is on much else in the Bill. No doubt there will be discussion in plenty. Overall, however, I welcome the Bill because I believe it is in line with the views of the general public and will do something to restore the confidence of the public in the judicial system. Perhaps that is the most important reason for having it. I hope that at the end of the day, whatever the outcome of the Bill, it will be a step forward in the process of restoring the confidence which I believe the public have lost in our judicial system.

4.58 p.m.

The Lord Bishop of Oxford

My Lords, there are a number of reasons why the Church of England has a deep interest in this Bill. First, we have chaplains in every prison in the country, ministering to both inmates and prison officers. This is a frontline ministry, offering its own special perspective on these important issues. Secondly, we have parish priests on the ground in all the areas most affected by crime. Even in Oxford I have one vicar living on an estate whose vicarage has been broken into five times in as many years, and that is by no means exceptional. Your Lordships may well remember the parish priest working on such an estate in Liverpool who was killed last year in the course of his ministry. Therefore, we certainly endorse 100 per cent. the Home Secretary's stated intention to make sure that there are fewer victims.

It is against that background that I express a number of real worries about the Bill before us. First, it is fundamental to both considerations of justice and the legal system that punishment should be proportionate to the crime. Automatic life sentences for those who have been twice convicted of certain serious violent or sexual offences allow virtually no discretion for the judge to take into account mitigating circumstances. For that reason the General Synod of the Church of England, when debating the system of mandatory life sentences in 1995, firmly rejected that system. It was strongly felt that it could give rise to many injustices.

Let me take one example from the area of marriage and family violence which has much concerned the Church of England recently, as it has this House. In the Synod debate, Chancellor Conningsby, gave the example of the wife physically abused by her husband. She attacked him but he had not provoked her immediately before the assault. She did not mean to kill him but she did so. The judge did not wish to sentence her to life imprisonment for murder, but under a system of mandatory sentences, if in relation to the Bill it were a second offence, he would have no option but to do so.

It is true that the Bill before us offers the possibility of that not being the case if, there are exceptional circumstances which justify not doing so", and that phrase is also used in relation to mandatory minimum sentences for other categories of crime. But there seems little confidence in the judiciary that this will provide the kind of discretion that is necessary for a fair sentencing policy, as the noble and learned Lord, Lord Bingham, has stressed.

In relation to the mandatory custodial sentences of at least seven years for drug trafficking offences and three years for domestic burglary, I should like to highlight the potentially damaging effects of that on certain kinds of offenders. As I understand it—if I am wrong I hope that the Minister will put me right—the mandatory sentence does not enable a distinction to be made between the large-scale trafficker in drugs who certainly deserves a really heavy sentence and addicts who sell small quantities to support their own addiction. Similarly, in the case of burglary no distinction would be made between the hardened professional criminal and the amateur teenage burglar desperately trying to find money to feed his drug habit. And this leads to a fundamental point.

Mandatory sentences will prevent judges in many cases from passing a sentence which is most likely to prevent reoffending. As we all know, an increasing number of burglaries are driven by the need to feed the drug habit. A survey in March 1996 by Cleveland Probation Service of a sample of offenders convicted of three or more burglaries found that 36 per cent. had drug-related problems. This underlying factor frequently does not become evident until after an offender has been convicted on a number of occasions. Where such an offender is willing to co-operate with the probation officer combined with participation in a drug rehabilitation programme, this is much more likely than imprisonment to prevent further offending. If mandatory prison sentences were in operation the courts would be forbidden to use this option. Although courts have the power not to impose the minimum sentence in exceptional circumstances, situations such as this are far from exceptional and, therefore, could not be appealed to by the court.

This in turn leads on to an even more fundamental point, which is why I and so many in the Church find this Bill deeply dismaying. Huge sums of money are to be spent building and maintaining new prisons. On a conservative estimate this will result in additional recurring costs of between £375 million and £435 million per annum some 12 years after implementation. There are more effective ways of using this money to combat crime.

I entirely agree with the noble Lord, Lord Tebbit, about the importance of deterrence. There is no doubting that that is crucial in the kind of fallen society in which we all live. But it is well known that the length of a sentence in itself is not a deterrent. The only real deterrent for a criminal is the high probability that he will be caught. As the noble Lord, Lord Tebbit, put it, it is the prospect of being nicked. This points to the conclusion that if more money is to be spent, it would be better spent helping the police to be as effective as possible in catching and prosecuting criminals. Then there is the fact that some alternatives to prison are now much more effective in preventing reoffending. Research suggests that some types of community supervision can reduce reoffending by between 20 per cent. and 50 per cent. more than other types of work with offenders. Those include a range of highly focused programmes which confront and change anti-social attitudes and offending behaviour, teach offenders to restrain aggressive and impulsive behaviour, tackle alcohol and drug problems and provide skills, training and employment. The research indicates that these programmes have better results when carried out in the community than in custody, though they can also be effective when applied in prison settings.

In the long term, and one of the advantages of being a bishop is that we can and should think in the long term, there are still more fundamental and more effective ways of tackling crime. The additional annual expenditure eventually needed to finance the proposals in the Bill would be equivalent on a conservative estimate to the annual cost of 200, 000 nursery school places. A similar point can be made in relation to the parenting programmes which are so desperately needed. Serious research in America shows that every dollar spent on parenting programmes saves up to 6 dollars that would have to be spent during adolescence on crime prevention and welfare provision. Money spent at an early age helping parents and nursery schools provide an ordered, caring environment is the only way in the long run in which a government can tackle the roots of crime, for people's patterns of behaviour go awry at a very early age and it is both difficult and costly to change those patterns later in life.

There is sometimes an unhelpful polarisation on penal debates between those who are allegedly tough on crime and those who are allegedly soft. We all need to be tough on crime. Crime is, quite simply and without qualification, totally unacceptable. But we then have to explore as quietly and rationally as possible the most effective ways of reducing crime. This Bill is disappointing because in the judgment of many in the Church it takes penal policy in totally the wrong direction: one that is costly, unlikely to work and potentially unfair. At the same time, alternative, better, ways that are more likely to work, more cost effective and designed for the next generation as well as this have not been followed.

5.7 p.m.

Lord Woolf

My Lords, a predecessor of the present Home Secretary suggested that prison was an expensive way of making prisoners worse. If this Bill is implemented, it is my fear that it will prove to be an extremely expensive way of making the criminal justice system worse. The Bill has perhaps some virtue in relation to fine defaulters, and the transfer of prisoners. But its principal provisions are objectionable on at least six grounds. First, it will result in injustice. Secondly, its proposals, if implemented, will have constitutional implications which are undesirable. Thirdly, it will damage the prison system. Fourthly, it involves profligate expenditure of public money. Fifthly, it will result in dishonest sentencing practices. Sixthly, it is unnecessary.

I can deal briefly with my views on those six points because my noble and learned friend the Lord Chief Justice has already extensively covered the subject with great eloquence. I must, however, start off with the principal concern of any judge: that is justice. With the exception of murder and matters such as disqualification which fall within a totally different category, the present situation with regard to the sentencing of serious crime is that Parliament sets a maximum sentence and the judiciary determines what is the appropriate sentence in all the circumstances. If the judiciary gets it wrong—as it can do, by imposing too heavy or too light a sentence—then a higher court can review the sentence if necessary and alter it. That is surely a just way of sentencing.

The Bill promotes injustice because it intends that a sentence should be imposed regardless of the particular circumstances of a particular crime or a particular offender. The escape clause will have limited application, and is intended to have limited application, since otherwise there would be no purpose in having the provisions contained in Clauses 1 and 2 of the Bill. The generality of offences are to be dealt with in the same way, regardless of the circumstances and the personality involved.

I listened with interest to the suggestion by the noble Lord, Lord Rodgers, as to the possible alternative of introducing instead the interests of justice. I do not believe that will meet the problem. If a judge is to be free to do what is in the interests of justice, then that is what he does at present; we shall be back to the present position, which may be the right position.

By removing the discretion of the judiciary, the Bill changes the constitutional balance in this way. If Parliament passes the Bill, the judiciary will give effect to it. However, giving effect to it involves the judiciary surrendering what has up to now been its traditional role, a role which by training and experience it is particularly equipped to perform. The Bill deals only with certain offences. However, it creates a precedent. It is a departure from our traditions. It sets a precedent which, once established, will undoubtedly be followed by further interventions in the future. It involves the legislature taking over what has hitherto always been accepted to be the proper role of the judiciary.

In this country we have no written constitution. Our liberties have been protected by a careful constitutional balance between the different arms of government. The executive, the legislature and the judiciary are usually sensitive in not trespassing upon each other's role. That sensitivity involves self-restraint. So long as there is restraint, the protection which a written constitution would provide is less necessary in this country than in other parts of the globe. One of the regrettable features of the Bill is the way in which the legislature is interfering with what in the past was never doubted to be a judicial function.

I turn to the prison system. Regrettably, at the present time that system is subject to immense strain. After I made the recommendations contained in my prison report, the Government of the day accepted those recommendations and embarked upon a programme to implement them. So far as I am aware, the Government have never publicly departed from that policy. There is no doubt that for a time the prison system made great steps forward, with consequent benefit to the public. Prison regimes were more constructive than they had been in the past. However, the past three years have seen that progress reversed. The prison system is now subject to the sort of stresses that brought about the Strangeways riots. The same pattern is reappearing. There was very recently a prison riot which, had it not been handled with commendable skill, could very easily have resulted in another Strangeways.

The Bill's message is that sentences should be increased. It is the increase in the prison population that is presently taking place and continuing at an alarming rate which has prime responsibility for the strains that now exist within that system. Already, over-crowding is undermining the ability of the Prison Service to do positive things within that system. It has been said by this Government that it is not the Government who send people to prison; it is the judges. In the past that could be said, although it is not entirely true. If this Bill is implemented, it will be less true.

It is not entirely true that the judges are responsible. Levels of sentencing are influenced by the rhetoric at a particular stage. In the present situation, the two major parties and the media are calling for longer and longer sentences. It is hardly surprising that in that situation sentencing has risen in a way which the Government never anticipated and which is causing embarrassment to the Prison Service in the way I identified.

I listened with great concern to the remarks of the noble Lord, Lord Tebbit, about the fact that from time to time members of the judiciary speak in public about their concerns in relation to matters of this sort. It is a matter that has concerned me; namely, the propriety of a judge speaking outside this House on matters of this sort. It may be that judges sometimes feel it essential to take part in public debate on such issues since, otherwise, the public will not have the benefit of their experience on a subject that is peculiarly their own.

It is a fact that the public are confused. As the noble Lord, Lord Tebbit, indicated, there is a lack of public confidence in what is happening in the courts. But if no explanation is given to the public other than by the judiciary as to what is possible and what steps can be taken which are practical and realistic, there are dangers that the public may be misled by the siren calls that they hear from time to time that the solution is to adopt proposals of the sort contained in the Bill. I say to the noble Lord, Lord Tebbit, that it is perhaps preferable that, with moderation and circumspection, senior members of the judiciary explain these matters to the public rather than their not being explained at all.

I do not believe, with the noble Lord, that it is too late for the public to understand the true situation. However, I accept that there is a heavy burden on those who have responsibility in these matters to ensure that the public are fully informed.

I wish to mention one further matter in regard to proposals in the Bill relating to minimum sentences. I have had the opportunity to be at conferences abroad where judges from different jurisdictions have been present when the advantages and disadvantages of proposals of this nature have been debated. In particular, I have had the opportunity of discussing these issues with a number of United States judges. They are astonished that we are not learning from their mistakes. They tell me that the dangers of fixed sentences can result in dishonesty in sentencing practice, and that that dishonesty can undermine the confidence of the public in the criminal justice system.

A very senior and experienced judge from New York explained to me what happens. A defendant is prepared to plead guilty to an inappropriate plea. That plea is accepted in order to avoid what would be an inappropriate mandatory sentence for the offence which was undoubtedly committed. The judge co-operates in the practice to avoid having to impose an inappropriate sentence. There are dangers because it puts immense pressure upon a defendant to plead guilty to a lesser offence so as to avoid the risks of contesting a more serious offence. There are grave dangers because the person who was the victim of the crime cannot recognise what is happening in court as what he or she experienced. I urge upon your Lordships that this is not a course which we should seek to follow. As to expense, which has been referred to, I cannot advance on what was said by previous speakers.

My Lords, I do not believe I can usefully add to what I have said.

5.20 p.m.

Lord Hutchinson of Lullington

My Lords, it is with a substantial degree of humility that one follows two devastating speeches by the noble and learned Lords the Lord Chief Justice and Lord Woolf. One wonders where we are getting to. Has it ever happened before that a Minister comes here to defend clauses in a Bill affecting the criminal law when the judge presiding over the Court of Appeal (Criminal Division) condemns those clauses as unjust, unworkable, irremediably flawed, misdirected, radically unsound and self-defeating?

The noble Lord, Lord Tebbit, speaks with confidence about the public. He says that the public want the clauses. I am sorry that he is no longer in his place, but all Home Office research shows that when the public—particularly victims—are questioned and informed, they are not punitive, as the press would have us all believe. In fact, victims repeatedly want young offenders to be rehabilitated rather than sent to rot in gaol. If only tabloid journalists would inform rather than inflame the public, we should have a much better reaction from them.

I wish to concentrate on Part I of the Bill and on the practical effects of those clauses and the confusion and disruption to which they will give rise in the whole criminal process. The first point, which has already been made, is that the operation of the criminal process is not in the hands of the Home Secretary but those of thousands of dedicated men and women, some professionals, some laymen and some volunteers. The system will only work if those people understand and approve the law and the philosophy which lies behind it. Yet, so far as I can see, every single agency in the criminal process condemns the clauses. It is only the police and, according to the Minister, the Labour Party, who support them.

The second point is that, as a result, changes in the system take a long time to work through and become effective. The third point is that the people who operate the law are not politicians; they do not wish to become part of the political arena.

As we know, the last great change came about in the 1991 Act, born of the 1990 White Paper. The new philosophy reflected years of research and inquiry in which many of us in this House had a hand. The Home Office research unit, the Carlisle parole review, the magisterial Woolf Report, NACRO, the Prison Reform Trust and the 30 bodies in the Penal Affairs Consortium all made major contributions, as did the academic world. There were innumerable seminars and workshops, increasingly attended by judges, police officers and academics. All that led in 1991 to a remarkable consensus, a watershed, helped along, I like to think, by some well-informed debates in this House in which we had valuable exchanges with a number of Ministers who were both emollient and flexible. One of them, the noble Lord, Lord Belstead, will speak in this debate.

Perhaps I may quote the one passage from the 1990 White Paper, Crime, Justice and Protecting the Public, which encapsulates the consensus which was achieved. Paragraph 2.16 of the White Paper stated: It is not the Government's intention that Parliament should bind the courts with strict legislative guidelines". Now it will do so. The courts have shown great skill in the way they sentence exceptional cases". Now that is no longer believed. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them". Now that is no longer to be so. The Government rejects a rigid statutory framework, on the lines of those introduced in the United States"— that is precisely what the Government now propose— or a system of minimum or mandatory sentences for certain offences". After five years the Government now propose what they then condemned. This would make it more difficult to sentence justly in exceptional cases". In five years, that is no longer true. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result". Every point in that passage from the White Paper is now reversed. One cannot operate a criminal system on that kind of approach. That is what was said then. The White Paper also stated that the Government called upon the Judicial Studies Board to carry out the policy which was laid down.

As we know and have heard, the principle was that offenders should serve 50 per cent. of their time in prison and 50 per cent. in the community or as recommended by the Parole Board. They should not be let out on the streets absolutely free, as the noble Lord, Lord Tebbit, said, but let out subject to strict conditions and supervision, with sanctions of return to prison and an added sentence should they offend again. That is now called dishonesty in sentencing and a charade. Yet if it was explained by the judge on sentencing, it was effectively designed to help victims and the public by reducing—as it has—the rate of reconviction.

Let me remind the noble and learned Lord, Lord Woolf, although in his presence, of what he said in his report. He quoted the Director General of Prisons: The life and work of the service for the last 20 years [in the prisons] has been distorted by overcrowding. That single factor has dominated prisoners' lives and soured industrial relations". Later, he said: The canker of overcrowding must be rooted out. As a result of these policies the prison population fell to 43, 000. As Sir Peter Lloyd, Home Office Minister at the time, made clear in the other place, crime began to fall in 1992, before the increase in prison numbers and the Howard reforms. Just as the new policies were beginning to bed down, the Home Secretary has decided to dismantle them all. As we heard, there are already 58, 000 prisoners now in prison. The canker referred to is not being rooted out but in fact fed. The estimated huge expenditure of £1.2 billion on 12 new prisons—the last one, just finished, cost £92 million—is in order to create an American-type "warehouse" for offenders.

Judges must now reverse their policies. They must hand down sentences which they consider unjust and cease to operate judicial discretion. The only example that the Minister gave of a mandatory sentence was disqualification for a driving offence. With great respect to her, that is no parallel at all. If one is given a licence to do something—say, a licence to drive a car—and one breaks the terms of the licence, obviously part of the penalty is to remove the licence. That is completely and totally different. It has no parallel with removing judicial discretion to impose a proper penalty across the board.

What is to happen to the Judicial Studies Board which was to teach sentencers to follow the new policies five years ago? Is it to start teaching something completely different from its teaching for the past five years? It puts the board in a completely impossible position.

I wonder whether the Minister understands the realities of what goes on in the criminal courts. There has been some reference to that but perhaps, as an old practitioner, I may make some points to her. All those with long experience of sentencing know that serious offences vary infinitely. There is the brutal and dreadful rape. Yet, far more often, there is the difficult and delicate case. Did the young woman consent or did she, at the last moment, change her mind? Did the man genuinely believe that she had not done so? Were they both the worse for drink? Did she make the allegation out of remorse or as a result of pressure afterwards? A man with a conviction for any offence under these clauses will be wide open to blackmail for ever afterwards.

As we have heard, burglaries can consist of stealing a milk bottle or a radio from a garaged car. Manslaughter can involve quite a light blow after a closing-time row or a fall on one's head on a hard surface. And, of course, there are cases of diminished responsibility. Surely the Minister knows only too well—indeed the House has already heard—about young people kicked out of miserable homes, who drift into city centres and are corrupted in a drugs environment.

An analysis found that in 35 per cent. of the cases which have come before the courts and which fall into the category that now carries a life sentence the judges took the view that there should not even be a sentence of imprisonment. Is it seriously suggested that those 207 cases in which it was considered by trained judges that a life sentence should not be imposed—35 per cent. of them not even attracting imprisonment—are now to attract life sentences? I suggest that that is grotesque.

The noble Lord, Lord Tebbit, asked why the maximum sentence is not imposed. The maximum sentence is not imposed because justice does not demand the maximum sentence to be imposed by people who have sat in court and heard hundreds of thousands of cases and who can make up their minds, I should have thought, more seriously and with recourse to more experience than a Home Secretary who has never been inside a criminal court.

Mr. Douglas Hurd, the architect of the 1991 Act, pointed out in the other place what still cannot be hoisted in by the Government: for however long offenders are incarcerated, 99 per cent. of them will be released onto the streets in the end—the ever revolving door, more people in and more people out. The only question for the public is how many of those people who come out will go straight and how many will continue to offend. As we heard from the noble and learned Lord the Lord Chief Justice, incapacitation, as it is called, has but a very small long-term effect.

Lastly, of those who object to these clauses, perhaps not the least significant is the organisation, which I am sure will be known to the Minister, called WAR: Women Against Rape. What does Women Against Rape have to say about the clauses? It says that under them, women and children will have less protection from rape than hitherto. It is a curious combination when Women Against Rape and the Lord Chief Justice say exactly the same thing about these clauses.

The Home Secretary has made many mistakes. As we know, he has acted unlawfully on no less than 14 occasions. But surely the most unforgivable thing that he has done is to play up for populist political purposes his differences with the judges. That surely is unforgivable in the holder of such a great office. It has done and continues to do grievous harm to the delicate balance in our constitution between the judiciary and the executive, to which the noble and learned Lord, Lord Woolf, referred. The judges have been put in an impossibly difficult position, a position where, inevitably, because of the Home Secretary's attitude, they appear to get involved politically. The noble Lord, Lord Tebbit, fell for that appearance. The removal of the judges' discretion to do what they constitutionally have a duty to do is, I suggest, wholly wrong and should have no place in the Bill.

5.40 p.m.

Baroness Young

My Lords, unlike previous speakers I should like to begin by thanking my noble friend the Minister for introducing this Bill this afternoon and, if I may say so, for explaining it so clearly. Perhaps I may underline the point that she made; namely, that it is a Bill that received overwhelming support from another place. Like my noble friend Lord Tebbit, I listened with great interest to the speech of the noble Lord, Lord McIntosh, and understand the Opposition will not vote against it. There may be disagreements on the detail of the Bill, but I understand the Opposition support the main principles.

It is unusual for me to enter into what might be described as a "law and order" debate. I am not a lawyer, nor have I ever been a magistrate—though I have twice been asked to be one and would have liked to do so. There is a great deal of concern today about the breakdown of law and order, and I venture to speak as a member of the public. I was surprised to hear the statistics given by the noble Lord, Lord Rodgers, about the numbers of people who are concerned about the breakdown of law and order. That is not my experience, though I admit that I have not read the Home Office report to which he referred. A great many women are afraid to go out at night and a great many people—no doubt some Members of your Lordships' House—hesitate to take the underground or travel by train after a certain time of night. That is not because they have been raped or violently attacked, but because there is a genuine anxiety and that anxiety needs to be recognised.

I did not hear in the speeches any mention of the anxiety of parents in relation to drug taking. Drug taking is a modern evil and there are few schools which have not experienced it one way or another. I can say confidently that there is not a parent in the land who is not worried, not only about the pusher at the school gates or somebody who picks something up at a party, but that behind those people stand extremely evil people doing a lot of damage. That is something we need to recognise.

I listened carefully to the speeches that have been made. When one is a professional dealing with such matters it is easy to say that all that is being proposed is wrong. But I hope that those who are dealing with the Bill realise that those on the other side of the argument have an equally important case to make; they are concerned. We have not been as successful with policies concerning law and order as we would have liked. There is a feeling, rightly or wrongly, that the law, however defined, appears so often to favour the criminal rather than the victim; that the victim's real anxieties are not understood.

In saying all that, I do not believe that the man on the Clapham omnibus ought to be deciding penal policy; that would be an absurd proposition. But there needs to be a balance in all this. I was interested that the noble Lord, Lord McIntosh, quoted from the speech of my right honourable friend Mr. Hurd in the Second Reading debate in another place in which he said that the British system of justice is in the hands of a variety of people. What he did not add was the statement at the end of the paragraph when my right honourable friend went on to say, Criminal justice measures will not work unless those people work them. That means that they must be listened to—I emphasise that—although their voice is not decisive. In the end. Parliament must decide".—[Official Report, Commons, 4/11/96; col. 934.] That is exactly what we are doing in this measure today.

I said at the start that I was not a lawyer. Throughout my life I have been involved in the subject of education. We saw a situation in which employers and parents thought one thing and the educational establishment thought another. In fact, the law, as it were, had got out of kilter with what a lot of people believed should be happening. We found that educational policy, supported by teachers, university departments of education, education advisers, professors and so forth, all went one way. In the end, Parliament intervened and laid down a number of principles such as the national curriculum and testing assessment because Parliament has a duty to determine between opposing views. At the end of the day, the educational establishment was overruled by Parliament. That was upsetting to the experts because their professional judgment was being called into question; many people felt that the policies did not work. There is now general agreement on the matter and educational standards will rise as a result.

In a way, we are in the same kind of position in relation to law and order. I do not believe for one moment that passing this Bill will automatically put right all the problems of law and order. That is not a sound proposition. It is a step in the right direction, but I would be the first to say that we need other measures as well.

What does the Bill do? It respects the reasonable desire on the part of the public for further protection against the criminal. No one has suggested other alternatives, except ones which have nothing to do directly with the criminal justice system. The Bill introduces mandatory sentences for certain serious offences. I hope that when my noble friend replies she will spell out what those serious offences are.

As I understand it, the Bill says that there will be automatic life sentences for second-time—that is the important point—serious violent and sexual offenders. The noble Lord, Lord Hutchinson of Lullington, said that women felt that they were more likely to suffer from rape under those provisions than otherwise. I do not follow that argument. It seems to me that a second serious offence must be committed before the automatic life sentence comes into operation. If I am wrong about that, perhaps my noble friend will correct me.

The second issue in the Bill is that there will be stiffer minimum sentences for persistent house burglars who have committed serious offences. I find it difficult to believe that that includes stealing a milk bottle. It would make a mockery of the whole situation if that were the case. As I read it, we are talking about much more serious matters; for instance, in relation to drug dealing, we are talking about hard drugs. Those are the people we wish to be caught by the provisions. It has been said that one Ecstasy tablet is not all that dangerous; but I believe it was one Ecstasy tablet that killed a girl not so long ago. All those matters are extremely serious and dangerous and we have a duty to deal with them as best we can.

I understand that on a third conviction hard drug dealers can be sentenced to four years' imprisonment, but that can be automatically reduced to only two-and-a-half years. As my noble friend Lord Tebbit pointed out, it is situations like that which members of the public find inexplicable. I hope that we will have a greater understanding at the end of the debate.

We were asked what prison does. I can tell the House what it does: it keeps criminals off the street. That is the first thing that the average member of the public wishes to know. While someone is in prison they cannot be committing crimes outside. That is the first reassurance for members of the public. There is some evidence that it acts as a deterrent. Though the prison population is up by 25 per cent., the amount of recorded crime is down by 10 per cent.

The Bill needs to be supported as part of a package of stronger law and order measures. However, I do not believe that it is the whole story or that it will solve all the problems. I support all those who say that prisoners should be educated. Many are illiterate. They should certainly be taught to read and write and it would be even better if they could be given some prospect of getting a job when they come out. However, as many noble Lords have pointed out, the trouble starts long before anyone gets to prison. The trouble starts when children, particularly boys—they seem most likely to commit crime—are quite young. I was very impressed by what the right reverend Prelate the Bishop of Oxford said on that point.

I have been a consistent supporter in your Lordships' House of proposals to support marriage, the family and sound principles in education so that children are taught right from wrong. One of the tragedies today is that stealing is endemic in the schools. It is endemic in a large part of society in a way that certainly was not the case when I was at school. There is no time to go into the reasons for that but we are in a very different world.

We need to do all these other things because supporting marriage means that we have homes in which there are fathers so that boys have a role model to follow and can learn about responsibility. Supporting high moral principles in schools will enable children to determine right from wrong. We are not able to introduce all these things immediately. This is one step of reassurance to the public which deserves our support. I am very glad to support the Bill before us. I wish it a speedy passage through Parliament.

5.51 p.m.

Lord Mishcon

My Lords, I hope to adopt a course which will commend itself to your Lordships. We were all privileged to hear two outstanding speeches—from the Lord Chief Justice and the Master of the Rolls. They were devastating speeches in regard to Part I of the Bill. I had prepared most excellently a speech which also was directed against Part I of the Bill. The speeches to which I referred more than covered, and did so much more ably, the points that I was going to make. I therefore do not propose to weary your Lordships with my speech.

5.52 p.m.

Lord Carlisle of Bucklow

My Lords, I am conscious also of the fact that this is the third occasion on which this House has discussed the principles of the Bill; first, in the debate introduced by the noble and learned Lord, Lord Taylor; secondly, in the debate on the Queen's Speech; and again in the debate today. Like the noble Lord, Lord Mishcon, I assure the House that I do not propose to repeat the speeches I made on those two previous occasions. However, while 1 realise that, as far as my noble friend the Minister is concerned, my opposition to and concern about the Bill are well known, I am bound to say, having listened to and followed the debates in another place and having heard her very persuasive speech this afternoon, that I nevertheless remain of the view that this is for many, many reasons a thoroughly undesirable measure.

I think that the Bill is quite unjustified. No attempt has been made to justify the major changes it proposes. I think that it is largely unnecessary. I think that it is ill thought through. I think that the proposals for mandatory minimum sentences are in principle wrong. I believe they blur the vital distinction between the roles of Parliament and the judiciary. I believe they will lead to injustice in individual cases. I believe that they will lead to tension between prisoners within prisons and lead to a very substantial increase in the prison population without achieving the protection of the public that the Bill aims to achieve.

I really do believe that sentencing should not be a matter for party political debate. Surely sentencing should be based on principles which command support across the political spectrum and, above all, retain the approval of the judiciary who are required to implement them. I sit as a recorder and when I do so I hope I sit as a lawyer rather than as a party politician. I believe that the fundamental flaw in the Bill is that its proposals were originally announced in a party political forum without any prior consultation and without any thought as to their effect. I believe that the Bill has been pressed ahead with against considered and informed objections by the judiciary. I believe it is a Bill that we should regret.

Like the noble Lord, Lord Mishcon—I have now spoken for three minutes as the noble Lord spoke for under one—I shall not repeat, or attempt to repeat, the points made so admirably by the Lord Chief Justice in his speech today. However, as the author of the review to which he referred, I remind the House of the circumstances in which that review was set up. The review of the parole system was set up because we were then in a situation where anyone who had served a sentence of more than six months was eligible to be released, at the say either of the Parole Board or, more likely, the local review committee in the prison, at any time once he had served a third of his sentence. The effect was that, particularly at the lower end of sentences, although the courts were passing sentences of different lengths, people were coming out on the same day. As the Lord Chief Justice pointed out, the proposals we brought forward were aimed at restoring proportionality and restoring meaning to the whole of the sentence and were intended to be simple to understand; namely, that anyone sentenced should serve the first half of that sentence in prison; he should then be released and be on parole for the next quarter; and throughout the time be at risk of being recalled if he committed a further offence.

I have seen no argument put forward to suggest that those proposals, introduced as recently as 1992, have failed in any way. The only attempts at criticism in the White Paper are ones that I find extraordinary. It is said that they are complicated and are often misunderstood. I say to my noble friend Lord Tebbit that in our report we recommend that in passing sentence the court should explain to the public what in fact that sentence meant. Perhaps it is unfortunate that the proposal was not taken up.

What is to be put in its place? A system is to be put in its place whereby the court is to ask itself, "What is the sentence that we would have passed had this Bill not been passed?" Having found that, then it is to say, "We shall therefore pass a sentence which is two-thirds of the sentence that we would have passed to try to equate the period spent in prison with that which is spent now". Perhaps I may give one example to follow on what the noble and learned Lord the Lord Chief Justice said. Today a court passes a sentence of two years. That means that the person spends the first year in prison. If he behaves himself he comes out at that stage. He is on parole for six months and for a further 12 months he is at risk of being recalled to serve that sentence if he commits another offence.

What is proposed under the Bill? For the same offence, rather than being sentenced to two years, the man will be sentenced to one year and four months. What period is he going to serve in prison? Apparently, he will serve one year, one month and 12 days. Thereafter he will be on parole for four months. I ask my noble friend the Minister quite simply this question: what is simpler, less confusing and more effective about what this Bill proposes than the position at the moment? I do not believe that the Bill meets any of those tests.

I am concerned about the effect on the prison population. The White Paper says that the proposals in the Bill should increase the prison population by some 10, 500. As my noble friend will realise, it specifically says that the proposals on honesty in sentencing should have no effect at all on the prison population. Yet it is now conceded that those proposals alone will increase the length of the average sentence by 11 per cent. I estimate that that will mean between 2, 000 and 4, 000 more prisoners a day in prison, but without the 10, 000 referred to in the paragraph on resources. What consideration has been given by the Home Office to that effect?

Finally, like the Lord Chief Justice, I really question whether in the present climate it is possible to achieve the two-thirds reduction in sentences which the Bill aims to achieve. We looked at this in the report and decided that in reality it would not be achievable. Therefore, to the extent that it is not achievable, all it means is that the prison population increases as people spend longer in prison at vast expense in terms of resources and costs which, as the Lord Chief Justice said, could be better spent on other purposes.

I turn very quickly to the mandatory proposals and I shall try to answer the points made by my noble friends Lady Young and Lord Tebbit. The noble Lord, Lord Tebbit, said that surely we were not talking about the type of drug offence which the Lord Chief Justice mentioned in relation to seven years for drug trafficking. The fact is that I do not believe there is a single person in this House who would not support the most condign punishment for those who are serious traffickers in drugs. But the courts already hand out those kinds of punishment. I sit in the Court of Appeal for the Channel Islands. There we start with a sentence of nine years for the first offence of commercially trafficking in drugs. No one is worried about the commercial trafficker getting more than seven years imprisonment, whether it is for the first, second or third offence.

The only type of person whom these provisions will catch is the pathetic, inadequate drug addict who shares a bit of what he has achieved to pay to feed his addiction. That is the reality for those whom this Bill will affect. Equally, I say to my noble friend Lady Young as regards burglary that of course serious professional burglars should receive sentences of at least three years, if not considerably longer. But under this Bill a boy of 16 years of age who commits two separate domestic burglaries may have gone along with a gang of his own age. He then goes straight for 14 years, gets married, settles down, has a job and a family. Then, being out of work and out of luck he sees, in passing, an open door or window at midday and—as has been said—takes a bottle of milk from the table. I point out to my noble friend Lady Young that he will be caught by these provisions. Those are the people for whom I am concerned.

The trouble with mandatory sentences is that they cannot allow for the enormous difference in variety in the type of offender and offences. Therefore, I believe that that will cause injustice in the cases which come before the courts. I believe that that equally applies to mandatory life sentences where one is to a large extent moving the decision as regards the time spent in prison from the judiciary, given in open court, with a right of appeal, to a parole board who will assess it at a hearing, but in private and without the right of appeal to the Court of Appeal.

In all those respects the Bill goes in the wrong direction. Following the excellent example of the noble Lord, Lord Mishcon, whom I have followed before in one of these debates, I apologise if I have failed in any way to equate with his brevity of speech. But I hope that when it comes to Committee stage we shall consider seriously amendments to the Bill.

6.7 p.m.

Lord Ackner

My Lords, in the debate on the Loyal Address on 24th October, I contrasted the Home Office White Paper of 1996 entitled Protecting the Public, on which a substantial part of this Bill is based, with the 1990 White Paper of the Home Office, entitled Crime, Justice and Protecting the Public, whose proposals, principles and policies were embodied in the Criminal Justice Act 1991. The purpose of that operation was to test the credibility of the Home Secretary. Was he merely appealing to the gallery; playing politics with the administration of justice and taunting the Opposition that he is tougher on crime than it is, or was he sincerely concerned that the public are inadequately protected from criminals by the judiciary and his radical proposals to increase both the level and frequency of imprisonment were designed to improve the situation?

Your Lordships may remember the coup de grâce, which was to be found in paragraph 2.16 of the 1990 White Paper. Your Lordships will note in particular the references to "justice". It states: It is not the Government's intention that Parliament should bind the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework, on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result". I suggested to your Lordships that the Home Secretary, by suppressing any reference to these carefully considered, clearly expressed, government views, by failing to disclose any reasons for now thinking that his contradictory proposals would not result in more acquittals, with more guilty men and women going free, and by not coming forward with any new material to justify the Government's change of heart, gave rise to the clear inference that Mr. Howard was playing electoral politics with the administration of justice.

But there are even more cogent reasons for arriving at that dismal conclusion. I start by dealing with two soundbites. I refer first to the Home Secretary's demand for "honesty in sentencing". My first comment relates to the proposal for automatic life sentences. Save for a tiny minority, those subject to such sentences are not intended to stay in prison for the rest of their lives. Life does not mean life. Moreover, the Home Secretary has accepted in another place that there is no minimum to the tariff that a judge may impose. If the circumstances are teeming with mitigation, the tariff can be a matter of months.

The second matter is this: the proposals with regard to mandatory life sentences are designed to deal with a particular problem, of a small number of men serving determinate sentences of imprisonment who have to be released when their sentences expire, although they are thought to be dangerous. I ask rhetorically: where does that quotation come from? The answer is perhaps surprising. It does not come from the 1996 White Paper, but from the report of a committee presided over by Lord Butler, the then Home Secretary, on Mentally Abnormal Offenders, presented to Parliament over 20 years ago in October 1975. What was proposed by that committee was a "reviewable sentence"—a new form of indeterminate sentence which would be subject to statutory review at regular (two-yearly) intervals, release being dependent entirely on the issue of dangerousness. On release, the offender would be under compulsory supervision, again subject to statutory review. That proposal was dealt with in great detail in the report which has been gathering dust on Home Office shelves for a couple of decades. Why, in the interests of honesty in sentencing, has it not been implemented? There are respectable precedents. It has been substantially followed in Canada and Australia.

Furthermore, it has two additional advantages over what is proposed now. First, it is not restricted to repeat offenders, as is the present proposal, but can apply to the first-time violent offender. Secondly, it does not carry with it the potential risk (referred to by judges and politicians) that the criminal might well decide to do away with his victim in order not to have to face the possibility of a life sentence. Could it be that the Home Secretary considers that the provision for reviewable sentences does not sound nearly as macho, as tough on crime as the false label of "life imprisonment"?

The second soundbite which was articulated to the delight of the party faithful at the 1990 conference is: no more half time sentences for full time crimes". What does that mean? It sounds pretty simple and straightforward. Let me take an example of a burglar who is currently sentenced to four years' imprisonment. Subject to good behaviour, he will earn remission of two years off his sentence, hence the reference to half time sentences for full time crimes". There are to be no more such cases. The clear inference is that the burglar will serve four years, a full time sentence for a full time crime. However, that is not to be the case. There is to be as little difference as mathematics can arrange between what happens now with regard to the period of actual imprisonment and what is to happen in the future.

As for greater transparency in sentencing, there is going to be a dog's breakfast over what is to happen in regard to the same type of offence being committed by prisoner No. 1 before the Act comes into force compared with prisoner No. 2 after the Act comes into force. Heaven help us if a prisoner has committed two offences—one before and one after the Act comes into force.

All that is by way of hors d'oeuvre. I come now to the pièce de réesistance. At the outset of his speech on the Second Reading on 4th November in another place the Home Secretary stressed that the key provisions of the Bill were, designed to improve the protection of the public against serious, dangerous and persistent offenders, and to increase public confidence in the sentencing process".—[Official Report, Commons, 4/11/96; col. 911.] I propose to give one or two clear examples to show that it will have precisely the reverse effect. I turn first to the mandatory life sentence. According to the 1990 White Paper, which I have quoted, the system of minimum or mandatory sentences for certain offences, would make it more difficult to sentence justly". Your Lordships may think that the imposition of an unjust sentence is hardly calculated to increase public confidence in the sentencing process.

Secondly, the 1990 White Paper also states that the system of minimum or mandatory sentences for certain offences, could also result in more acquittals by jurys with more guilty men and women going free unjustly as a result". That is undoubtedly the case since there will be occasions where if the jury are aware, as they could well be, that the defendant faces a mandatory life sentence if convicted, they will for that reason not convict. Moreover, there will be refusals by defendants to enter, as they should, pleas of guilty. In some such cases, because of the heavy onus of proof, there will be acquittals. In addition there will be cases where witnesses, particularly those in a close relationship with the defendant and who know the consequences of a conviction, will refuse to give evidence or prove to be unreliable witnesses. Moreover, there could be cases, as has been pointed out by the senior judiciary and politicians, of victims being killed in order to avoid the risk of detection and subsequent life imprisonment.

Finally, in order to be sure of obtaining a conviction there will be cases where the prosecution will find themselves obliged to accept an unrealistic plea bargain, as is well known to be the case in America. None of that sounds as if greater protection is being given to the public; on the contrary, it sounds as if protection is being removed.

I come now to the abolition of parole. Because of the definition of "relevant offence" and the necessity for its repetition, the proposed automatic life sentence will miss many potentially dangerous offenders. It is in regard to them that the public is currently being provided with a significant protection by virtue of the parole system, which is to be abolished. Under that system, the risk of a repetition of offences is assessed by a panel of experts before parole is granted and, when granted, it is subject to a tight set of conditions with close supervision and a streamline provision for recall where the behaviour suggests the risk of reoffending. The purpose of the system is both to protect the public in the short term while the defendant is on licence and, in the long term, to reduce the risk of his reoffending and returning to prison.

Finally, I refer to prison overcrowding. The changes are bound to lead to greater prison overcrowding. This, coupled with drastic cuts in the prison budget, will reduce the prison service's ability to provide regimes designed to change attitudes to crime and offending behaviour. That will increase the risk of reoffending on release, and increase the number of potential victims. To quote Mr. Tilt, the Director General of the Prison Service, in a major speech last September: The prison service would like to do constructive things but this is jeopardised by a very fast rising population … and budget reductions that do not seem to be sensibly achievable". In my very respectful submission, the Home Secretary is putting forward these proposals in a manner which shows a degree of irresponsibility that I would not expect to go with that office. There is a growing belief that he is exploiting for party political gain the misapprehension of the public that judges are too soft on crime, which I accept is a commonly held view. If one goes back to the less harsh climate of 1992—since when the prison population has gone up by 50 per cent.—one finds the most recent comparison of various Council of Europe countries supplied by NACRO. This shows that in 1992 the United Kingdom had the highest actual prison population of the countries surveyed and the highest proportionate detention rate. I am indebted to my noble and learned friend Lord Taylor of Gosforth (who I am delighted to see is in his place) for the following material which featured in a speech that he delivered when Lord Chief Justice to the Commonwealth Judges and Magistrates Association Symposium at the University of Hertfordshire on 15th April 1996. He quoted the Daily Mail which had stated the previous week: The Judge has become like a glorified social worker … who sees law-breaking as the criminal's cry for help. He seems blindly unaware of the popular groundswell in favour of harsher penalties". I do not know who wrote it, but there are a number of candidates.

That that is an illusion is supported by a recent study conducted under the auspices of the Nuffield Foundation. Among other things, it found that half the public thought that 50 per cent. or fewer convicted rapists were sent to prison. The correct figure was 91 per cent. Half thought that 20 per cent. or fewer convicted burglars were sent to prison. The correct figure was 41 per cent. Half thought that 20 per cent. or fewer convicted muggers were sent to prison. The correct figure was 50 per cent. Contrast that with the reality disclosed by an academic, Joanna Shapland. Recently she conducted a survey of victims of violent crime whose attackers had been convicted in the Crown Court. The survey showed that more than half of them thought that the sentence was "about right" or "too harsh". Even more remarkably, a survey of burglary victims found that 80 per cent. wanted imprisonment for burglary in the abstract but only 32 per cent. wanted it for "their" burglar.

A few weeks prior to the speech of the noble and learned Lord, Lord Taylor of Gosforth, the London Evening Standard sent a team of journalists into Crown Courts in London and the surrounding area to sit in court, listen to real cases and report what happened. The editorial summed up the exercise as follows: The broad picture is of Judges whose sentences are fair, firm and fit the crime". In the debate initiated in May by the noble and learned Lord, Lord Taylor, calling attention to the Government's White Paper of 1996, my noble and learned friend Lord Nolan drew attention to a recent study carried out by Professor Michael Zander in his capacity as a member of the Royal Commission chaired by the noble Viscount, Lord Runciman. Professor Zander sent out a questionnaire to members of over 800 juries—that is to say, getting on for 10, 000 people—and asked for their views about the various aspects of the crimes in which they had taken part as jurors. As regards the sentences passed in cases in which the defendant had been found guilty, about one-third had no particular views. Of the remaining two-thirds, one-half said that the sentence was just about what they would have expected. A quarter said that it was rather more severe than they would have expected. Only a quarter—that is to say, one-sixth—said it was rather less severe than they would have expected.

As the noble and learned Lord, Lord Nolan, pointed out, the Court of Appeal can increase sentences that are excessively lenient. Indeed, the Attorney-General has a duty to bring such cases to its attention. But the Court of Appeal spends far more time having to reduce sentences when judges have been too severe. But these are only a tiny minority—some 2 per cent.—of all sentences passed. The vast majority of sentences are not appealed against or questioned at all. All this the Home Secretary must know but, as was recently stated in a national newspaper, he has "an unerring populist streak" which sadly the Opposition seem now to wish to emulate. O temporal O mores!

6.26 p.m.

Lord Blake

My Lords, I rise with some hesitation having heard such a distinguished series of speeches from noble and learned Lords. I shall probably be a little briefer. I make only one point; other noble Lords will deal with the detail. It has been stated that the constitution is in some way imperilled by this legislation. It seems to me that there is no question of the separation of powers being damaged or anything of that kind. There is really no separation of powers to damage anyway. Setting that aside, I do not believe that the constitution is in peril. I believe that the legislature is perfectly entitled to legislate about sentencing.

Of course, the legislature may legislate foolishly. That is another matter. But as far as concerns the constitution it has the right to pass the appropriate legislation limiting or altering the nature of sentencing if it sees fit to do so. I do not believe that any point of constitutional propriety arises here. Perhaps that is not a major point but it has some importance in the present context. I have been very brief indeed.

6.27 p.m.

The Earl of Longford

My Lords, it is a special pleasure to follow the noble Lord, Lord Blake. He followed me much more than adequately as politics tutor at Christ Church. I shall try to emulate him today. I shall be fairly brief but not quite as brief as the noble Lord.

The noble Lord, Lord Rodgers, described this as a bad Bill. I go a little further. In my eyes, it is the worst Bill that has ever come before this House in my 50 years as a Member of it. It is certainly the worst Bill on penal measures since I introduced the first debate on prisons in this House 40 years ago. As I am to be followed by the chairman of the Parole Board, I believe that this is the worst Bill since a Labour Party committee, which I chaired, produced parole plans that became law during the Wilson Government; in other words, it is a very bad Bill.

If the House asks me why I believe that it is so bad, the first reason is the great increase in the prison population. Three years ago the prison population was somewhat over 40, 000; today it is approaching 60, 000 and going up fast. We will soon be beyond that figure.

The Government say that the Bill will send up the numbers by 10, 500. The Prison Reform Trust, of which, I am glad to say, Mr. Douglas Hurd has become chairman, tells me that it thinks that the measure may send up the numbers by 30, 000. Let us split the difference and say 20, 000. So if the Bill is approved, within a few years the prison population will go up from something over 40, 000 to somewhere near 80, 000. It will have about doubled within a few years. That is pretty astonishing.

We must bear in mind that present plans are to reduce the prison staff. I was in two prisons last week. In one case the staff were under the impression that their numbers were to be cut by about 40 per cent. I think that that was an exaggeration. I think that there will be a reduction in that prison of about 100. There will be fewer staff and a doubling of the prison population. That makes it out of the question to pursue any constructive policy of what is now called rehabilitation. I prefer the old word "reform".

I am not saying that rehabilitation, reform, or whatever we like to call it, is the only object of imprisonment. Prison is, first, a punishment. It is imposed on people who have committed a crime; who have broken the law. I wrote a small book called Punishment 35 years ago. When one considers punishment one can identify four elements: deterrence, prevention or incapacitation—to use the modern term which means locking people up so that they cannot do any harm for as long as they are there—retribution, and reform or rehabilitation. I have never found anyone who was concerned seriously with these matters, or anyone who has given their lives to studying them, who would rule out rehabilitation.

Rehabilitation cannot be ruled out altogether. We have devoted staff struggling away. Howardism is despised throughout the Prison Service but one way or another staff have to carry out orders. I always say to them, "I know it is not your fault. Yours not to reason why." They have to go on doing their job. With the prison population being doubled and staff numbers going down, the Government are doing everything they humanly can to make rehabilitation impossible. For that reason this is an atrocious Bill.

Let me offer one further thought which is in many people's minds in this House and elsewhere. In May last year, the former Lord Chief Justice, who I am glad is restored to health, led an onslaught against Howardism. He was backed up, among others, by five former Home Office Ministers, including a former Home Secretary.

Recently, in the other place, Mr. Hurd, Mr. Kenneth Baker, another former Home Secretary, and Sir Peter Lloyd, a former Minister of State at the Home Office, all criticised the Bill. On the one side, we have all those concerned with prisons at various levels: the judiciary, as we have seen today, prison governors, prison staff, successive inspectors-general, the Probation Service and the criminologists. On the other, what is there? Just popular emotion, exploited savagely by the tabloid press. One is left with a choice. It is as clear as can be that this is an evil Bill; I hope that it will never reach the statute book.

6.34 p.m.

Lord Belstead

My Lords, I thank my noble friend the Minister for her clear explanation of the proposals contained in this enormously wide-ranging Bill. It is a Bill which, as the Long Title makes clear, provides also for the treatment of offenders in a wide variety of different situations. It is a pleasure to follow the noble Earl, Lord Longford. He has a wealth of first-hand experience in this field and I hope that he will take an active part in what may be an interesting Committee stage.

It is also a Bill which, as the White Paper which preceded it says, has "protection of the public" as its primary objective. I recognise that the right honourable gentleman the Home Secretary is consistent in pursuing that aim and in making proposals in the Bill which seek to give protection against serious and violent crimes.

However, what I find of particular concern is that the Bill appears to have lost sight of "protection of the public" in aiming also for what the White Paper described as "honesty in sentencing". Here I must declare an interest as chairman of the Parole Board, but I assure noble Lords that my concern stems not from a desire in some way to maintain the status quo—that, incidentally, would be foolish as there are interesting additional and new responsibilities to be laid on the Parole Board by the Bill, as well as other things—but from a belief that it is necessary to warn that the risk to the public will be increased by the clauses in Part II which, in pursuing "honesty in sentencing", introduce a new remission scheme for the early release of prisoners. That was one of the four grounds upon which the noble and learned Lord the Lord Chief Justice based his devastating criticism of the Bill when he was speaking about the early release proposals.

Clause 10 provides for a new scheme of early release based on days of remission awarded on grounds of good behaviour. The reason for that appears to rest on the argument that "honesty in sentencing" requires, as the right honourable gentleman the Home Secretary stated on Second Reading in another place, that the prison sentence that is passed by the court is the sentence that will actually be served by the offender.

Is that achieved by Part II of the Bill? No, it is not. Prisoners awarded early release days under Clause 10 will be released early. I shall take the same example of a six year sentence given by the Minister in a letter she kindly wrote to me on 20th January, a copy of which has been placed in the Library: a six year sentence today will need to be reduced to four years under the terms of Clause 22, and then, with the possibility of 12 days' remission every two months, something under only three-and-a-half years is all that will be left to serve for those who obtain maximum remission.

I say that, not I hope in a snide way, but in order to add my voice to that of those speakers much better qualified than I who have said that honesty in sentencing is a difficult target to hit, particularly in terms of a Bill which deals also with early release. It is a target which the Bill does not succeed in hitting.

Having said that, my main cause for concern in Clause 10 is that the grounds upon which early release is given are to be altered. At the moment that is done by risk assessment—an assessment of the risk which a prisoner would present if released early under supervision. I assure my noble friend the Minister that the assessments of risk must of course take account of a prisoner's behaviour in prison.

Under Clause 10, that is to be replaced by remission solely for good behaviour. I must say that I should have thought that an alarm bell should have started to ring in the Prison Service at the prospect of the reintroduction of remission, which was brought to an end only four years ago, following the recommendations of a committee under my noble friend Lord Carlisle of Bucklow, which looked with great care at the early release system. Indeed, looked at from almost any viewpoint, the new remission scheme gives cause for concern, because it appears that it will not contribute to the safety of the public; for example, it takes little imagination to realise that good behaviour, or behaviour of the prescribed minimum standard, as Clause 10 rather inelegantly describes it, is not a reliable basis for the early release of prisoners. There are many offenders, as many noble Lords will know better than I, who have no difficulty in conforming to a prison regime, but who do not experience any change of heart or of criminal intent, and however good their behaviour, those prisoners remain dangerous to the public.

In my noble friend's letter, which I mentioned, she suggested that risk assessments will in future be carried out as part of the sentence planning process in prisons. I recognise that in saying that she is seeking to be helpful, but sentence planning is not risk assessment. And, anyway, the provisions of Clause 10 are crystal clear; in future, early release is to be awarded not on an assessment of risk but according to the prisoner's behaviour in prison.

By contrast, the parole system is a team effort. As noble Lords will know very well, it involves reports from prison officers, specialist prison staff, the probation service and often the medical profession. Those reports are read by panels of the Parole Board to give an independent risk assessment. It is fair to claim that over the past quarter of a century the parole system has proved itself. Home Office research shows that taken from 1968, the year in which the system started, prisoners on parole up to the first six months after release have a reconviction rate of under 10 per cent. compared with 30 per cent. for non-parolees. Two years after release, when supervision periods have almost always run out for most prisoners, the story remains much the same, with parolees' reconvictions running at about 35 per cent. compared with 55 to 60 per cent. for non-parolees. In saying that, I realise that a single prisoner who reoffends is one too many, but that major difference in reoffending rates represents a significant protection which parole can afford to the general public. Yet parole for fixed-term prisoners is to be discarded and, logically, the risk of reconvictions will substantially increase.

If the consequences of the new remission scheme are likely to be so counter-productive, are there other and better reasons for its introduction? For instance, will it lead to greater confidence in the sentences given? Your Lordships will have noticed Clause 22, which is disarmingly described as "Continuity of sentencing". That is the clause which instructs the courts to reduce their fixed-term sentences by one third, so that a six year sentence will amount to only four years. As a layman, I believe that in order for Clause 22 to succeed it will be necessary to explain to the general public in plain terms that it means what it says; that shorter sentences must be given by statute. I very much doubt whether that news will be widely welcomed as a public protection measure.

On the other hand, might there be administrative reasons for introducing remission for good behaviour? I hope that the Minister will give a little information about the exact figures. I understand that the task of deciding every two months whether the behaviour of upwards of 30, 000 prisoners has attained or exceeded "prescribed minimum standards" will be enormous. One can conclude only that hard-pressed prison staff will resort simply to the ticking of boxes on forms, an exercise which will eventually become entirely automatic. It will also be a procedure which appears to disregard entirely the appropriateness of whether prison officers should become the arbiters of early release for prisoners in their custody.

Therefore, I am suggesting that already warning signals are hoisted over Clause 10. I can see no reason why the existing parole system could not simply be tightened up so that a prisoner would not be eligible for parole, if that is what the Government wish, until later in the sentence. That is a simple change which would avoid the problems of the remission scheme, which are formidable indeed.

I say that because there are two remaining issues which are specifically provided for in Part II which raise major problems. The first involves release conditions. When a prisoner is released early now there is a licence which spells out standard conditions upon which parole is granted. But those conditions can be supplemented by special conditions. These days, the Government are concerned—and rightly concerned—about the protection of victims of crime. One of the ways in which that protection can be given is by special licence conditions: for example; a condition that a released prisoner shall have no contact with a victim or a victim's family; a condition of psychiatric oversight during the supervision period; or a condition to do some offence-focused work to continue to tackle the causes of the prisoner's crimes.

Such conditions can be absolutely crucial for successful supervision. Yet there is nothing in Part II to explain how the conditions attached to release supervision orders are to be decided, except for the rather curious involvement which the Parole Board is to have in deciding on "hostel" or "curfew order" conditions. Bearing in mind that the board will have had nothing to do with the prisoner up to that point and will not do so in the future, the practicality and expense of that Parole Board involvement will need to be probed in Committee.

However, my concern now is that it is by no means clear what information will be available on which prison staff will be able to base release supervision order conditions. Even more significantly, it is also very unclear what, if any, offence-focused work can possibly be prescribed for the supervision period, bearing in mind that the worst behaved prisoners will be under supervision entirely after their sentences have been fully served when the sanctions hanging over their heads will be very limited. At the moment the sanction of recall to custody can most certainly convince a prisoner of the need to try to reform and rehabilitate while under supervision.

That leads me directly to the other issue that I wish to mention; namely, recalls, which are a most important protection-of-the-public issue. At the moment, long-term prisoners are subject to revocation of their licences and recall to prison by the Home Secretary on the recommendation of the Parole Board, which meets daily and treats recall cases as a priority. And, crucially, the power to recall extends not only to licensees who commit another crime but also to those who ignore their licence conditions and whose behaviour indicates a probability of reoffending. With those powers, in the majority of cases it is possible to recall prisoners before they can reoffend. That is a very important safeguard for public protection.

That safeguard is now largely to be removed. What is proposed in the Bill is that proceedings for breach of the conditions of a release supervision order must be brought in the courts. No doubt my noble friend will correct me if I am wrong, but I understand that the existing recall scheme for short-term prisoners, which relies on court hearings, has already shown that breaching for anything other than a further offence is rare because of the obvious difficulty of bringing cases to court where a licensee has not actually committed another offence.

Therefore, no longer will recalls provide a safety net which can catch a prisoner under supervision who appears to be going off the rails before another crime is committed. I hope that the Government will be prepared to look again at the recall provisions in the Bill, which appear to be a backward step as regards protection of the public.

My noble friend Lady Blatch in her opening speech reminded us that in another place the supervision period for prisoners was extended. I hope that I do not sound grudging when I say that I welcome that as far as it goes. However, I must point out that, as there is to be no real risk assessment, that is bound to have a detrimental effect on the production of a good supervision plan on which the quality of the supervision period is based. If things then start to go wrong it will be far less possible to recall a prisoner under supervision.

Finally, the Bill is subject to a curious contradiction. On the one hand it creates automatic life sentences under Clause 1 for serious offences about which the Home Secretary is understandably concerned, and the Parole Board is to be made responsible for the release of those prisoners through the well-tried process of risk assessment. Yet, on the other hand, the Bill leaves other prisoners who have fixed-term sentences, however long, to be released early by a remission system which, in my submission, is devoid of any worthwhile risk assessment. Those systems really do not sit logically together, unless perhaps a calculation was made when the Bill was being drafted that, because of Clause 1, only offenders who are not really dangerous would come within the scope of remission awarded solely for good behaviour.

Into this rather uncertain scene has stepped the Centre for Criminological Research at Oxford University. In a piece of research published in the November edition of the Criminal Law Review it described how it took a sample of 324 prisoners who had been convicted of a sexual or a violent offence and who were having their last possible parole review, having failed to get parole earlier on in their sentences. The Oxford research then discovered that of the prisoners in their sample who were found by the Parole Board to be still dangerous—not unsuitable for parole but still dangerous—only one in every 10 would have been eligible for an automatic life sentence under Clause 1. In other words, nine out of 10 dangerous prisoners in that research sample would have had to receive fixed-term sentences and would have been eligible for early release simply on the basis of their good behaviour in prison.

I realise that early release is, at least for me, a difficult and controversial subject. It becomes anyone involved in it to be ready to try to listen and to learn from proposals for change. But in the light of that piece of research, I really do think that the introduction of this remission scheme in the Bill for good behaviour could be a disastrous move for public safety. It is on that ground, repeated again and again in Clauses 10 to 14, that I believe this part of the Bill fails. I hope that the Government will be prepared to look at some of the issues that I have mentioned before it is too late.

6.52 p.m.

Earl Russell

My Lords, amid so many judges and experts, I appear as the statutory layman. In that capacity, I should like to offer my congratulations to the noble and learned Lord, Lord Taylor of Gosforth, who I am delighted to see in his place this evening. While going over my papers yesterday, I was impressed yet again by the extent to which we are indebted to the noble and learned Lord's clarity of mind in marshalling the arguments that we are now deploying.

On the whole, I thought that the Minister made a very reasonable introduction to the Bill. However, I was a little distressed when she ascribed much of the concern to a misplaced concern about the relationship between government and the judiciary. There is such a concern. However, in my opinion, it is neither misplaced nor trivial. Indeed, it would be altogether demeaning our concern about the Bill to make out that that is what it is about. Our concern is about a fundamental disagreement regarding the nature of justice. The mandatory minimum sentence is a filing clerk's notion of justice: you put it under a particular heading and then you know what sentence to give it.

I agree much more closely with the noble and learned Lord, Lord Bingham of Cornhill, who made such a distinguished speech earlier today. He said that the object of justice was to match the sentence to the gravity of the offence—that is to say, to the particular offence committed by the particular person on the particular occasion, not just to the heading under which we choose to classify it.

I do not believe that the Minister assisted her case by invoking the mandatory life sentence for murder which, as your Lordships know, has already incurred the displeasure of this House. If there is one crime which is not always the same in one case or another, it is murder. When we debated the matter before on consideration of Commons Reasons, I recall something that the noble and learned Lord, Lord Hailsham, said at that time. Unhappily, the noble and learned Lord is no longer in his place tonight but, nevertheless, I gave him notice that I intended to quote this point. The noble and learned Lord contrasted a mercy killing of a terminally-ill patient with arson in a crowded building in which, by the grace of God, no one was killed. On that occasion the noble and learned Lord concluded, "Let them have their silly way". However, before it is concluded that that would be the noble and learned Lord's advice on any future occasion, we should remember that that was said on consideration of Commons Reasons.

On another occasion, the noble and learned Lord, Lord Ackner, contrasted the treatment of Private Lee Clegg with the idea of the mandatory minimum life sentence for murder. I know that that case is the sort of hard case that makes bad law, but for the Government that is really a very difficult exercise. On 23rd May I dwelt on the difficulty of classifying all rapes together under the heading of "equal gravity". I shall not do so again. Nevertheless, one can do the same with burglary.

I recall a burglary in my father's house when the burglar found one bottle of Red Hackle whisky. He drank the lot at his leisure and went off without taking anything else. My father reported the incident to the manufacturers of the whisky and suggested that they use it for an advertisement, which I believe they did. It would be truly absurd to treat that as an offence of the same gravity as ransacking a house of all the valuables that it contains and then trashing the house to boot. These crimes are not on all fours. I know that there is an escape clause, but it is an escape clause designed by Dr. No for James Bond; it is not for daily use.

The noble Lord, Lord Blake, made the point that minimum sentences are not unconstitutional. That point was made by the noble and learned Lord, Lord Taylor of Gosforth, on 23rd May last. As a fellow historian, I agree with the noble Lord, Lord Blake. What is more, I shall cap what he said. Parliament has done this before. It is then relevant to consider what happened when Parliament did it before. In considering the effect of proposals, we should compare them with what happened when they were put into effect on other occasions. Such comparisons must be with other places or with other times.

We have heard from the noble and learned Lords, Lord Bingham of Cornhill and Lord Woolf, about what happened when it was done in other places in the United States: it has not worked very well. Therefore, I should like to touch on what has happened when it has been done in other times under this jurisdiction. Up to the penal reforms of the 1820s, theft above the value of one shilling was a capital offence. During the 16th century inflation rose to about 500 per cent. which means that there was an unintended and rapid escalation in the severity of sentences. What happened illustrates to a nicety the maxim of the noble and learned Lord, Lord Bingham, that attempts to destroy discretion do not destroy it but rather transfer it. I say that because, of course, the capital penalty depended on the valuation of the stolen goods. Their valuation, being a matter of fact, was a matter for the jury. So, for example, in one case burglars stole a whole set of silver out of a gentleman's house worth goodness knows how many pounds, but the jury valued it at eleven pence halfpenny. Therefore, no capital penalty resulted.

One particularly clear illustration of how this is, as the noble and learned Lord, Lord Bingham, said, an exercise of a discretion which was discovered by a former Fulbright scholar to whom I had the honour to be host and who is now a distinguished professor in the United States. I have in mind the case of a certain Mrs. Harridan. I assure your Lordships it is a genuine name. Mrs. Harridan found a young girl of 15 whose father had recently died. Her mother had remarried a man the girl did not like. Mrs. Harridan persuaded the girl that her stepfather was going to embezzle her family heirlooms, but that she, Mrs. Harridan, would take them into safe keeping so the girl could have them when she grew up. The girl duly removed the heirlooms from the house and gave them to Mrs. Harridan who, of course, sold them. The jury, when it assessed this, should have found the same verdict for both of them. The girl had actually taken the things out of the house. But the jury acquitted the girl and hanged Mrs. Harridan. If that is not an exercise in discretion, I do not know what is. So the noble and learned Lord was quite right: if you attempt to destroy discretion, you transfer it.

The noble Lord, Lord Tebbit, touched on the issue of the concern of the public. That is deep and real. However, what the public want, and want passionately, is reduction in crime. It does not mean that the public are necessarily the best judge of how one gets that. It is the basic principle of representative government that the public say what they want and it is for us to sit down and try to work out how the public can get it. The public are not always the best judge of every technical issue.

I grant that the basic and original purpose of sentencing was to prevent private vengeance. That is vital. So we must always take account of public concern. Our earliest attempts at statutes, some 1400 years ago, were attempts to mitigate the blood feud by the imposition of a fixed level of compensation. The attempt to take vengeance away from the private individual and bring it into the hands of the state is a basic force behind the criminal justice system. But that does not mean that the public should judge exactly how much the vengeance should be in each individual case, because when one does that, and even more when one encourages the victim to be involved in the sentencing of his or her own case, that reverses the process—a basic process of civilization—of transferring the judgment to the state. That raises the question whether the contents of this Bill will prevent crime.

I do not see how any sentence can prevent crime until people believe they will be caught. When the chances of being caught are so small as they are now, I do not think it matters what sentence one gives. Criminals are by temperament gamblers. Gamblers by temperament believe that they will be the lucky ones. It is that belief one has to dent if one is to discourage crime. We on these Benches would try to reduce crime: first, by prevention—by lighting, locking and other practical devices; and, secondly, by better detection, which means more resources and more people for the police. Thirdly, we would try to reduce it by more effective prosecution. The Home Secretary could have done far more with £100, 000 for the Crown Prosecution Service than with all the money that is being spent on this Bill. Fourthly, we would pay attention to staffing levels in the hope of reducing the amount of crime in prison.

The Home Secretary reasons on the assumption that people are not committing crime in prison. In a legal sense that may be true, but they are certainly committing offences against the person at a quite alarming rate. The noble Baroness may recall a debate on an Unstarred Question introduced by the noble Lord, Lord Henderson of Brompton, on the Howard League report on the treatment of youth offenders entitled Banged Up, Beaten Up, Cutting Up. That showed a quite alarming degree of offences in prison. I believe the words "safe custody" should mean exactly what they say. If we cannot prevent offending in custody we ought to keep down the prison population and keep up its staffing level until we can, because if we cannot do that we are failing to achieve the object of the exercise.

I think this Bill is not merely a misconceived Bill; I think it is a useless Bill. The Government's test is protecting the public. It is a fair test but that, I believe, is precisely the test which this Bill fails.

7.5 p.m.

Lord Renton

My Lords, although the noble Earl and I have different views on the Bill, I am glad that I can agree with some of his remarks, particularly his reference to my noble friend Lady Blatch. I do not know of any other occasion when one Minister has found it his or her duty to pilot three major controversial Bills through your Lordships' House simultaneously. I say with deep respect to the noble and learned Lord the Lord Advocate that the noble Baroness, Lady Blatch, has had to do that almost single handed. There is another pleasing aspect that I should like to mention. I have been in your Lordships' House for only 17 years but I do not remember a previous occasion when we have had the noble and learned Lord the Lord Chief Justice and both his predecessors with us for a debate.

Although for 10 years I tried many criminal cases, as a recorder and as a relief judge at the Old Bailey, I have not sentenced anyone for 25 years. I hope therefore that your Lordships will realise that I am not putting forward my views based on professional experience, but—I hope the noble Earl will be pleased to hear this—as a parliamentarian who, like him, believes that the public expect us to do something when there is a serious problem.

The public look to Parliament to try to do something about reducing crime. The victims of crime especially feel that way. The noble Earl referred with admiration—and so do I—to the speech made by the noble and learned Lord the Lord Chief Justice. I refer too to the remarks of the noble and learned Lord the Master of the Rolls. I shall study both speeches, each of which was, if I may say so, a bit negative. I say that with the deepest respect, but they were negative. The noble and learned Lords condemned the Bill but did not have anything much by way of an alternative to suggest. I shall read especially the speech of the noble and learned Lord, Lord Bingham, in order to see what detailed amendments may be necessary in the course of the Bill's passage through your Lordships' House.

On balance I support the Bill. We have an alarming and ever increasing crime rate; it has grown every year since Coronation year—the only year, I believe, this century when crime fell. People expect us, with the help of the police and the detection of crime, and in the hope that the courts will use their sentencing powers as necessary, to punish convicted criminals, to dissuade them from committing further offences and to discourage other people from offending. However, there is a feeling, rightly or wrongly, that the courts are not using the powers that Parliament has given them to the fullest advantage. Of course we all know—even lay people know—that judges vary tremendously in the discretion they exercise when sentencing. Some judges are known to be tough; others are known to wish to be as humanitarian as possible. When I was a recorder, I used to be a little criticised. I knew that prisons were overcrowded and universities of crime. Therefore I tried all I could to keep people out of prison. But that process can go too far. Let us take burglaries, for example. They are dealt with in Clause 3 of the Bill. In 1993-94, the average sentence on a third conviction of burglary was less than 19 months. As the noble and learned Lord the Lord Chief Justice rightly said, burglaries vary. A burglary can consist of stealing a bottle of milk. It can consist of breaking into someone's house, not finding anything worth stealing, but frightening the old lady who lives in the house. The person who does that deserves a heavy sentence.

We know that discretion is given to the court regarding exceptional circumstances in Clauses 1 and 2. I agree that until now the courts have given a very narrow interpretation of that. But surely, if only a bottle of milk is stolen, and nobody is disturbed, that may be an exceptional circumstance. I should have thought that the courts have to apply that opportunity which Parliament gives them with regard to exceptional circumstances to avoid what might be an obvious injustice. I hope that the courts will not interpret "exceptional circumstances"—

Lord Tebbit

My Lords, I am grateful to my noble friend for allowing me to intervene. He said that it is many years since he was a recorder. I wonder whether he can recollect on how many occasions he had brought before him charged with burglary a person who had stolen nothing more than a bottle of milk. This individual has featured a great deal in our debate today. I wonder how often he featured in the courts.

Lord Renton

My Lords, my noble friend rather strains my memory. I have not tried a case for a quarter of a century. However, I remember one case when I was Recorder of Guildford. The house of a noble Lord who became Speaker of the House of Commons and is now, I am pleased to say, a Member of your Lordships' House, was broken into by a young person who had never committed a previous offence. Nothing was stolen. I put that person on probation. I hope that I was right. But some people were very surprised that that was what I did. There has to be judicial discretion. If the judges have not used their discretion in ways which achieve the purposes for which the discretion is given, then Parliament has seriously to consider the matter. That is what the Home Secretary has invited us to do. I cannot bring myself to say that the Bill is fundamentally wrong.

Perhaps I may speak briefly on Clause 2 which requires minimum mandatory sentences of at least seven years for drug dealers who have already been convicted on three separate occasions. I do not know whether "Panorama" can be credited with always being right, but I am told that the purpose of a recent programme was to indicate that 70 per cent. of crime in this country today is drugs related. If that is so, we really should be stiffening sentencing. I shall not trouble your Lordships with the details, but it is rather similar to what has been happening as regards burglaries. The courts are not using to the full the powers that they have to sentence people committing these offences for a fourth and subsequent time.

The only clause in the Bill about which I have a real doubt is that which deals with mentally disordered offenders. They include people suffering not only from mental illness, which is often curable, but from mental handicap—sometimes, I think, wrongly called learning disabilities—which is incurable. As a result of Clause 43, those who are mentally handicapped may have to be detained in prison which might not be the right way to deal with them. I hope that we can have another look at Clause 43. I think that the Government should be congratulated on their courage and on their wisdom.

7.15 p.m.

Lord Oliver of Aylmerton

My Lords, among all the eminent lawyers in this House, my credentials for addressing your Lordships on the subject of crime and sentencing are probably the slenderest. My practical acquaintance with the subject is limited to one occasion a little under 50 years ago when, as a very young barrister, 1 was called upon at the Central Criminal Court to defend, with a conspicuous lack of success, a young man who was charged with five separate counts of causing grievous bodily harm to police constables. It was an experience which convinced me that in so far as I had any future at all in the practice of the law it lay rather in the quiet cloisters of Lincoln's Inn than in the rough and tumble of the Old Bailey.

Nevertheless I felt emboldened to address your Lordships in this debate simply because I believe that the Bill that we are discussing is, as has been said, a bad Bill. No one can reasonably deny that it is the duty of a government of any colour to bring forward measures to discourage, to punish and to protect society against crime if such effective measures do not already exist. No one can sensibly deny that crime is only too prevalent. However, this essay at tackling the problem seems to smack somewhat of what nowadays might be called a syndrome of ill-conceived and ill-considered measures emanating from the Home Office.

Only last week the House considered a measure by which the Government seek to reintroduce and revive in our law the ancient Anglo Saxon custom of deodand which visits upon the instrument the sins of the user. This present Bill seems to me to be another retrograde step, turning the clock back (as it seemed to me when I first had the Bill read to me), and to be more appropriate for the early years of the 19th century when customary sentences of transportation for, for instance, grand larceny were filling the hulks on the Thames with a transient and reluctant population.

Indeed, I understand that a press report has even suggested that there is in contemplation the possibility of purchasing prison ships from the United States. I do not know whether or not that is true. It is probably as mischievous and inaccurate as most press reports. But it rather sets the climate in which the Bill is being discussed.

The provisions of the Bill are intricate. This is not an occasion upon which it would be right to consider the minutiae. Some of the curious consequences of the Bill, at least in its original form, were indicated in an article by Dr. Thomas in The Times last November. If it be true that hard cases make bad law, so, I suggest, is legislation spawned in the parrot cries of party political conferences. I cannot resist the feeling that this Bill is one such example.

Two areas in particular give rise to concern. I had intended to say a good deal more about them. However, the noble Lord, Lord Belstead, said all that was necessary about the dangers and difficulties of replacing a well-tried and well-established system of parole with a system of brownie points for good behaviour. I cannot imagine anything better calculated to cause unrest or which is a better recipe for corruption, to say nothing of the administrative burden that will be placed on prison staff.

Mandatory sentences are the other cause for concern. Some crimes are so horrendous that social conscience would say that the perpetrator must never be released. There are some criminals who are so unregenerate that even the impotence of old age would not exhaust their capacity for evil doing. But the judges have been able to deal with those. I cannot see the purpose of depriving the judges of the discretion to treat each individual case as it arises in accordance with its circumstances and the justice of the case.

I believe it was in 1846, following the establishment of the Central Criminal Court, that judges were given a very much enlarged discretion in sentencing to enable them to alleviate some of the injustices that were caused at that time by mandatory sentences. If we are to put the clock back a century and a half, there must be very good reason for doing so. I confess that nothing I have heard suggests any such good reason. It seems rather a pity that experienced judges should not be entitled to consider in each individual case the degree of guilt and the circumstances of the case.

It has been suggested that the "let-out" lies in the words, unless there are exceptional circumstances which justify not doing so"— —not passing the mandatory sentence.

That will not do. It is clear on the face of the Bill that it will not do. An escape clause such as that, which has always received a very restricted meaning, cannot be expanded into an opportunity for a judge to consider the individual circumstances, the degree of guilt of an accused and so on. It is perfectly apparent on the face of the Bill that it can not be so interpreted. On examination, the provisions of Clause 8, contain a reference to the court taking into account the justice of the case. It is clear that the draftsman did not intend these words about exceptional circumstances to cover a matter that was already expressly covered in another section in a different context.

I came to the House with some considerable nervousness to deliver a rather longer speech than noble Lords will now have visited upon them. That is partly because this is the first occasion on which I have plucked up enough courage to address the House since my sight left me. But the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Carlisle, expressed so completely and so beyond criticism everything that I wanted to say that I wish to take the same course, at rather greater length I am afraid, as that taken by the noble Lord, Lord Mishcon, and say that I cannot improve upon what they said. I adopt all their remarks.

I merely add this. As the noble Lord, Lord Rodgers, said, it is not customary to ask the House at Second Reading to reject a Bill in toto. I do not do so. However, I urge the House to subject the Bill, in Committee, to the most searching, the closest and the most suspicious scrutiny.

7.26 p.m.

Baroness O'Cathain

My Lords, I was present for and listened earnestly to 17 of the last 18 speeches. With two honourable exceptions, namely the remarks of my noble friends Lady Young and Lord Tebbit, I feel that the point I wanted to make has received nothing like the same airing as the popular points in this debate. So although I greatly admire the initiative taken by the noble Lord, Lord Mishcon, and by my noble friend Lord Blake in being extremely brief, I fear that I cannot follow it.

We must not forget that the Bill arose out of the White Paper, Protecting the Public—not protecting the rights of judges and not protecting the rights of offenders. The public are demanding that greater protection should be afforded to them. Again and again today, concern was expressed about prisoners, about their welfare, their education and the costs of keeping them in prison. That is all very worthy. But it would have been nice to hear even 10 per cent. of that concern directed towards the victims of their crime.

Although the battle against crime is relentless, the perception is that crime is on the increase and serious crime is growing at a very fast pace. As we have mentioned many times in this House, perception is all. Everywhere one is asked: what is being done? This Bill tackles part of the fight against crime—a part that has had a great number of high profile detractors both today and on other occasions. Yet it has a huge amount of public sympathy. Not all the public can be wrong all of the time. The fact that only one part of the problem is being tackled, as the noble Lord, Lord McIntosh, remarked, does not mean that we should not tackle that part.

We have to realise that the basic fear of so many people going about their normal lives is very real. They need protection that is at least equal to that of the rights of judges and the welfare of offenders. Despite what anybody says, there is a real fear of crime. There is a fear of assault, rape, burglary and drug related offences. I am sorry to see that the noble Lord, Lord Rodgers, is not in his place; I should have taken issue with his comment—it related to the result of a survey, but one wonders about these surveys nowadays—that only some 3 per cent. of women are afraid to go out at night. I must know all of that 3 per cent. If that is the case, how is it that there is a growth in in-car telephones directed solely at women, and personal alarms? One is asked by taxi drivers to make sure that one rings them and asks them to go to a secure address. If that is not indicative of the concern of many people about women being out on their own at night, I should like to know what is.

On a fairly light note, one night during the last Session in this House, when the debate ended at around 1 o'clock in the morning, as I left the Chamber one of the senior officers said, "I'm glad you don't have to drive very far on your own tonight". I said, "Well, unfortunately, I do. I'm driving down to my home in Sussex". The officer said: "Well, my Lady, this might seem a strange suggestion but in the near future I suggest you go into"—wait for it, my Lords—"a sex shop and buy an inflatable male model". I did not know that such things existed. He said: "Get your husband's jacket and hat and keep them in the boot of your car. If you find yourself in similar circumstances, driving 63 miles to your home in Sussex, late at night or in the early hours of the morning, blow the model up and sit it beside you in the passenger seat". I thought that the man was off his "rocker" but I talked about it to several friends, not least magistrates in Sussex. They all thought it was a good idea. They would not have done so if there had been no reason to think it was a good idea.

There is a problem, and I am sorry that there have been only two female speakers so far in the debate. I do not believe that the male Members of the House have any conception of the inward fear most women have in such circumstances.

The Bill tackles the punishment for such crimes. Discretion is not being taken from the judiciary, despite what the right reverend Prelate the Bishop of Oxford said. Compassion is not being withheld from prisoners who repent and whose behaviour now indicates that they can be integrated into society. However, victims and the general public will be comforted by the measures proposed. The fact that victims will know the length of time that the perpetrators of the offence against them will be kept in prison will be a comfort to them. Too often they are the people without a strong voice who are disregarded.

The magnificent speech of the noble and learned Lord the Lord Chief Justice lasted almost 30 minutes and it was utterly compelling for almost every second. However, I believe that he mentioned the word "victim" twice. He begged us to discharge our duty to our fellow men, but that includes victims. The victims need our support and action; the general public demand action and we must not fail to yield to their demands.

The proposals in the Bill concern repeat crimes. I emphasise that. The Bill should go a long way towards the deterrence of repeat crimes of the most serious nature and those are what we are talking about. I support the Bill wholeheartedly.

7.32 p.m.

Lord Donaldson of Lymington

My Lords, this is a thoroughly bad Bill. If it were a horse and I was referring to its pedigree, I should say that it was by "Misplaced Public Anxiety" out of "Electoral Ambition". The anxiety of the public as to current sentencing policies is wholly understandable, it has no familiarity whatever with the infinite variety of circumstances affecting particular crimes, particular criminals and their victims. Its sole source of information consists of media reports which are necessarily both highly compressed and highly selective.

What is much less understandable and, in my view, wholly inexcusable has been the attempts made by some members of the Government to fuel those anxieties by various means, including the use of misleading statistics. I take one example: domestic burglary. As we all know—judges above all—it is of deep concern to all householders and their families. The courts are well aware of that and take it into account when seeking to make the punishment fit the crime, the offender and its effects on the victim.

In 1994, the range of first custodial sentences for that offence was from two months to seven years. For the third or more of such sentences it was between six months and 10 years. The Minister implied today in an aside that the extremes of that range are rarities, but she did not condescend to give us any figures to support the proposition. That range of sentences only emerged in a Written Answer to a Question in this House. Previously the Government had made great play of average figures as showing that repeat burglars need only expect an increase of less than three months when comparing the length of their first custodial sentence with that imposed upon the third or subsequent conviction. Regrettably, the Minister has again done so today. So has the noble Lord, Lord Renton. In fact, no court has ever passed either of those average sentences—the first was 16.2 months, the second was 18.9 months—any more than anyone has ever encountered the national average family's 2.4 children.

If the Government insist that the courts are insufficiently responsive to the public's wish for stiffer sentences, perhaps they would explain why the prison population is rising so rapidly, at least since 1994. That is a significant year because all the Minister's figures relate to it, as did those of the noble Lord, Lord Tebbit. Later figures, have we none.

The core provisions of the Bill are contained in Clauses 1, 2 and 3. Let me make it absolutely clear to the noble Lord, Lord Blake, and others that I have no doubt whatever that Parliament is entitled to take the steps foreshadowed in the Bill. However, I question whether it would be either wise or just to do so.

The mandatory life sentence for murder is unique. We are now asked to say that a second offence of serious violence is on a par with it. The reluctance of juries to convict, to return a verdict of guilty on a charge of murder is well evidenced by the extraordinary number of occasions upon which, on the flimsiest possible evidence, they find the accused not guilty of murder but guilty of manslaughter by reason of diminished responsibility. The same is likely to be true of second offences of serious violence, apart from successive rapes.

But the problems will not end there. As has been mentioned, prosecutors will be faced with offers on behalf of defendants to plead guilty to actual bodily harm instead of grievous bodily harm with intent and indecent assault for men charged with rape. If the reduced plea is not accepted, the victims will face the harrowing experience of having to give evidence in court and the courts themselves will be overburdened. If the plea is accepted, the court will be obliged to sentence on the false basis that the offence was less serious than was in fact the case. Make no mistake, that will apply equally in the case of someone charged with a first qualifying offence because any lawyer worth his salt will advise his client of the dangers of acquiring a first qualifying conviction.

There is a further problem in rape cases which has been mentioned and which should certainly not be underrated. By the nature of the crime, the victim is likely to be the only witness and it must occur to the offender that his chances of avoiding conviction would be much improved if he eliminated the only witness.

Let me make it clear that I do not for one moment dispute that there is a need for some form of indeterminate sentence in this very serious or potentially serious category of cases. But it should be in the form of a reviewable sentence. By that I mean that the convicted man, the offender, will be required to stay in prison for X years, as determined by the judge from the tariff sentence and that thereafter he will have to apply to the court—not the Parole Board—for his release. Make no mistake about it, I do not underrate the vast importance of the work of the Parole Board and I expect the court to rely heavily on its advice in reaching a decision. But I make clear that the reviewable sentence, whatever else it is called, must never be called a life sentence. Honesty in sentencing requires that and it should also avoid the confusions which arise under the present system. Also, it should never or almost never be a life sentence.

It should not be forgotten, when I make the suggestion that it should be for the courts to decide, that the courts and the courts alone are the ultimate guardians of the liberty of individual citizens, whether or not they are criminals, whether or not they are victims. The courts should not lightly surrender that responsibility and Parliament should not lightly divest them of it.

I turn briefly to the minimum sentence of seven years for a third time Class A drug trafficker. I find it no less objectionable, for the reasons that have already been given. Any large-scale professional drug trafficker would get seven years for a first offence. We are worried about the addict and above all the young addict who uses a small amount of the drug to feed his or her addiction and passes it on to friends for money. That is the problem area. I think no one would suggest that a seven year sentence is appropriate in those kinds of cases.

There is the minimum three-year sentence for domestic burglary. I shall not run the milk bottle line. I shall point out that, unlike the other two offences, in this case there is no lower age for acquiring the qualifying offences. In fact, I think I am right in saying that there is a special provision in the Bill altering the law so that account can be taken of offences committed by those under 14 years of age. So there are two very minor crimes committed by children—that is what it amounts to—and almost certainly opportunist crimes. Come their 18th birthday, they yield to temptation once again and get three years. Apart from the injustice of that, the House must ask itself whether a three-year sentence in such circumstances would either reform the offender, deter other offenders of a like kind, or simply amount to a three-year course in not getting caught next time.

Underlying all those provisions in the Bill seems to be the fallacious idea that crimes and criminals are homogeneous. Nothing could be further from the truth and every judge can testify to that from his own personal experience. Equally fallacious is the assumption that in so far as crimes and criminals do differ, judges, despite their training and experience, are quite incapable of distinguishing between them and passing appropriate sentences. Of course they are and in the vast majority of cases they do. I say "in the vast majority of cases" because they are human. There are 500 judges. It would be a miracle and indeed would suggest that there was some fraudulent manipulation by my noble and learned friend the Lord Chief Justice if he could get all of them to pass the right sentences at all times.

I say one last word relating to the exceptional circumstance so-called let-out. If it is treated as a let-out, the judges are not being true to their oath, which is to do justice according to the law. They will be deliberately distorting the law. The late Mr. Justice Stable is reputed to have done it in one case in which he directed the jury that, on the facts and the law, there was only one verdict that it could possibly return. However, he added that, in accordance with his duty to direct them as to all the law that might be relevant, he had to tell them that, if they perversely found a verdict of not guilty the prosecution could not appeal. I mention that not to commend it as an attitude, although I have some sympathy with it, but to illustrate that I do not believe that judges will use that exceptional circumstance provision as a let-out. On the other hand, I totally support any suggestion for varying it in Committee to provide that judges should not be required to act contrary to the justice of the case, taking account of all the circumstances of the crime, the criminal and, above all, the victim.

7.46 p.m.

Lord Campbell of Alloway

My Lords, it is a privilege to follow the noble and learned Lord. In particular, he put the record straight on the statistics and emphasised the dangers of the American plea bargaining system and its effect on the victims, which was the concern of my noble friend Lady O'Cathain.

Albeit certain aspects of the Bill could afford a requisite and constructive response to public concern and are welcome, not so the core provisions in Clauses 1 to 3 and in particular Clause 1, with which this speech is exclusively concerned. As the noble Lord, Lord Rodgers of Quarry Bank, rightly said, it goes to the heart of the matter. As the noble and learned Lord the Lord Chief Justice said, it produces the certainty of injustice.

The virtual annihilation of judicial discretion in sentencing is no way in which to seek to alleviate public concern, however legitimate that concern may be. In view of the magnificent speeches, if I may say so without presumption, of the noble and learned Lords the Lord Chief Justice and the Master of the Rolls I can only defer, with respect and without hint of qualification, to their authoritative expositions. It would be an impertinence for me to seek to say more about them save this: how could they be described by my noble friend and sponsor Lord Renton as "negative"? They were about the most forthright and positive contributions I have heard in this House, and I have been here a little less time than my noble friend.

Lord Renton

My Lords, perhaps my noble friend will allow me to intervene. What I was getting at—I believe it is quite true and that neither of the noble and learned Lords would dispute it—was that their speeches were confined to criticising the terms of the Bill. They did not put forward alternative proposals. That is why I ventured, with deep respect of course, to say that they were a bit negative.

Lord Campbell of Alloway

My Lords, we shall all read Hansard. I must get on with my speech as there are many more speakers to come. It seems to me, however, that my noble friend was not entitled to suggest that either of those magnificent speeches had a hint of a negative aspect. I stand by my impression until I have read the Official Report.

It is no secret that senior members of the judiciary and others, including myself, I admit, who sit on these Back Benches, have sought accommodation on this matter, but in vain. The hope is that, in the light of this Second Reading debate, the drawbridge may be lowered and that some amendment may be devised which will be acceptable to government and the judiciary, such as the deletion of "exceptional". As the noble Lord the Lord Chief Justice so truly said—he was supported by other noble and learned Lords—this is no escape route from the vice of the proposals, none whatever. As the noble and learned Lord, Lord Oliver of Aylmerton, said, it is no good for that purpose, and he gave a considered reason in relation to the construction of the Bill as a whole.

Certain proposals were put by the noble Lords, Lord McIntosh and Lord Rodgers. No doubt we can consider those at Committee stage. But amended, assuredly, the Bill shall be. Some measure must be introduced to ensure that a judge is never obliged to impose a sentence which is contrary to his conscience; which he considers to be unjust and inappropriate. That is my bottom line. It is plain English and readily understandable.

It is accepted that our sentencing machine as implemented on release affords scant deterrence and inadequate protection for the public from persons who have committed serious crimes and are likely to reoffend on release, and that something must be done about that. But the mandatory life sentences proposed by Clause 1 of the Bill, which seeks to virtually remove judicial discretion, are not appropriate. As many noble and learned Lords who have a wealth of experience, including the Lord Chief Justice, agree, that would work injustice in many cases.

In context with the administration of criminal justice I accept, on the authority of my noble friend Lord Blake, that there is no constitutional impropriety. Nonetheless, I go along with the view of my noble and learned friend Lord Woolf that sentencing is a matter for the judiciary, as was acknowledged by the noble Lord, Lord Rodgers. Release is a matter for the executive, which has the benefit of a judge's recommendation made when imposing a life sentence, though that is many years before release. It is of constitutional importance—I put it no higher—because of the danger to which the noble Earl, Lord Russell, so cogently referred, that the separation of powers should be acknowledged by the legislature and should not suffer further erosion.

It has been suggested that Clause 1 is modelled on discretionary life sentences and that the judge retains discretion; that he need not impose a life sentence but, if he does so, under Clause 23 he may order the relevant part of the sentence to be served. That is an absurd suggestion and is not well conceived. The argument remains wholly circuitous until "exceptional" has been deleted from Clause 1 and an amendment introduced to restore judicial discretion.

It is interesting that Clause 1 is not acceptable to Women Against Rape. I received a handout from that organisation this morning which adverts to the proposition—it was touched on by the Lord Chief Justice in another context—that a woman may have a previous conviction for GBH prior to marriage years ago and a subsequent conviction of manslaughter for killing her husband after years of brutal domestic violence. Under this Bill that would involve a mandatory life sentence as though she had not been convicted of manslaughter, but of murder. That is but one example of the difficulties of the form in which Clause 1 is drafted. It raises many questions which are not easy to resolve.

It is not possible to devise any definition of general application of "exceptional circumstances". The judge must state in open court the grounds on which he formed his opinion that there are such circumstances and he must also state what those circumstances are. It is a matter for the objective consideration of the appellate court; but without any definition of the norm it is not easy to decide judicially what is "exceptional" and what may be treated properly by the judge as "exceptional" on the facts of any specific case.

If the judge is satisfied that there is no prospect of reoffending either as regards the category of crime of which a person is convicted on the first occasion or of the category of crime of which he is convicted on the second occasion, it is thought that such could constitute "exceptional circumstances" which would justify a departure from the norm which requires the imposition of a life sentence. But would it? In view of what was said by the noble and learned Lord, Lord Oliver of Aylmerton, would it? Would one be met in the Court of Appeal by the argument—which the noble and learned Lord did not fully deploy—of construction? What is "exceptional"? There are eight categories of serious crimes within the meaning of Clause 1 which fall into five types in context with murder, manslaughter, GBH, rape, under-age sex and firearms.

I conclude with this question—there are so many others: would a life sentence be appropriate if the judge was satisfied that there was no prospect of reoffending as regards either type of serious crime in respect of which the accused had been convicted? Who knows? Noble and learned Lords who have spoken do not appear to be able to provide an answer. How can they without any definition of the norm?

7.58 p.m.

Lord Archer of Sandwell

My Lords, perhaps the most serious penalty for leaving it late to set down one's name for a debate is a double one. First, all the best arguments have been fully deployed; and, secondly, a contribution is judged less by its comprehensiveness than by its brevity.

It is always a pleasure to follow the noble Lord, Lord Campbell of Alloway, but it has not been invariable that I have been able to express so completely my agreement with what he said. Perhaps it is an "exceptional" circumstance!

After the wealth of experience and expertise which has been placed at the disposal of the Home Secretary in this debate, my excuse for adding my voice is a modest one. I have practised at the Bar for some 43 years, a proportion of that time being spent in the criminal courts. I have sat for the past 16 years as a Recorder. And perhaps most importantly for this purpose, for 26 years I was addressed from time to time by a fairly wide cross-section of the public in a deprived industrial area of the kind to which the noble and learned Lord the Lord Chief Justice referred. None of that, as I am sadly aware, is a guarantee of wisdom; but it provides a certain reservoir of information. If enforcing law and order is the declared purpose of the Bill, then those who were my constituents for those 26 years would applaud that purpose; and so do I.

In the interests of brevity, I propose to confine this intervention to one issue, although I do not give an undertaking to observe a similar reticence at subsequent stages. Pace my noble friend Lord Mishcon, I venture to contribute a word on the concept of prescribing a minimum sentence for a second or third offence of a specific category. As the noble Lord, Lord Carlisle, so clearly pointed out, we categorise offences according to certain selected characteristics of the incident, whatever the other characteristics it may have. I understand, as the noble Earl, Lord Russell, pointed out, that that may attract the filing clerk's approach, but it is inevitably the draftsman's approach.

We can define the characteristics in law of a domestic burglary, but they include no reference to whether the occupiers were terrified or whether they were absent from home; whether the offence was carefully planned by a team of professionals or the opportunistic discovery of an open window; whether it was accompanied by damage; whether the goods taken were pre-identified art treasures, or the much discussed bottle of milk; whether the offence committed on the premises was stealing at all; or whether the purpose was to remonstrate with a former partner but the thing went sour and it turned into criminal damage; whether the offender was a professional burglar or simply desperate for the next meal. None of these characteristics would be likely to amount to exceptional circumstances. With the greatest respect, which he knows I always accord him, to the noble Lord, Lord Renton, who is not in his place, if he thinks that stealing a bottle of milk is an exceptional circumstance, I suspect that he is in a minority among the lawyers in your Lordships' Chamber.

Yet all these characteristics are relevant to what is a just sentence and a rational disposal of the case. It follows that if the court is precluded from taking them into account, then, as the noble and learned Lord the Lord Chief Justice so compellingly demonstrated, the sentence will not be a just one, and the disposal will not be rational. Is there then a case for an irrational disposal on the ground that that is what the public wants to see?

The community's reaction to crime was never wholly rational. In the earliest times, an important element was simply to strike out at whoever, or even whatever, was thought to be responsible for the misfortune. In the Book of Exodus, an ox responsible for a death was stoned; and in this country, as late as Bracton, a cart which ran over a man was burnt.

I hope that over the centuries reactions have become more reflective. There is a greater concern with what we are trying to achieve, but there is a strong element of simple indignation, of pure moral condemnation. And that is important. If we lose the connection between penal policy and a declaration of ethical principles as perceived by the public, then we lose an important part of the impetus to law and order. And that, as I understand it, is the essence of the Home Secretary's case.

It then follows that the courts, in sentencing, should pay some regard to public opinion. I hope the noble Earl, Lord Russell, will forgive me if I say that it may not always be possible to distinguish rigidly between ends and means; between what the public wants to achieve and how it sees a possible way of achieving it. The enforcement of law and order needs the co-operation of the public in assisting with crime prevention, in crime detection and in building up a climate of peer pressure in favour of legality. Criminals themselves, for the most part, recognise a distinction between getting their deserts and being themselves treated unjustly. But if the argument for these clauses is that the public expects tough sentences, irrespective of the justice of specific cases, we need to administer to ourselves two cautions.

First, I have never met a member of the public—and I suppose that that expression includes everyone—however tough on crime, who refused to agree that the public is best protected from offences if a criminal really is induced to renounce crime, and does not offend again. That is the optimum outcome in the public interest. If, on a specific occasion, that is likely to be achieved by a more lenient sentence—perhaps by a community disposal—then that is the best way to protect the victims of crime. The right reverend Prelate the Bishop of Oxford gave an example of the drug offender who, having now been discovered, may be anxious to kick the drug habit and, therefore, the motivation for subsequent crimes. Of course we cannot always predict the outcome accurately of a disposal of a case, but there is available to the courts a fund of expertise which we would be foolish to waste.

Secondly, an ill-informed public opinion is a loose cannon, because the public view may change if all the facts emerge. So often, public reaction to a sentence is based on a very selective account of the facts gleaned from the tabloid newspapers. If there is a public perception that judges are spineless wimps who do not have the guts to pass proper sentences, that can be dispelled by a closer acquaintance with the courts. The noble and learned Lord, Lord Ackner, cited the example mentioned on 23rd May by the noble and learned Lord, Lord Nolan, of the questionnaire sent out by Professor Zander at the time of the Runciman Commission.

I can add to that one anecdote. I recently heard of an occasion when members of the public who are not particularly familiar with the courts had a dialogue with some experienced magistrates. Since it was told to me in confidence, for good reasons, I cannot identify the occasion or those who participated. But at the outset, the members of the sample almost all expressed the view that the courts needed to deter crime by more draconian sentences. They then proceeded to consider a series of specific cases, of the kind that are used as exercises in judicial seminars, where judges are presented with a set of facts, including such mitigation as is available, and compare their reactions. In nearly every case, the members of the sample would have passed more lenient sentences than those which would have been passed by the experienced magistrates.

If a sentence is to reflect the public view of what a wrongdoer deserves, then that principle faces both ways. Public confidence in the penal system is at least as much at risk when an offender is perceived as having been treated unfairly—when the reaction was more draconian than the offender deserved. The criminal law depends on the support of the public against the criminal. If sometimes the criminal is seen as escaping the full measure of his deserts, that may diminish public confidence in the courts, which is regrettable, but it is not likely to diminish public support for law and order. But if the criminal is seen as a victim, if the sentence appears to be beyond his deserts, then public support may switch from the agents of law and order to the criminal himself.

When capital punishment is discussed, I am always reminded of the little girl who, on the morning of the execution, was heard to murmur, "Poor Dr. Crippen". And if the object is to reduce crime, and to make the offender less likely to reoffend, then causing the criminal to appear as the one who is wronged is about as counter-productive as you can get.

If penal policy is to serve as an affirmation of ethical standards, that cannot be applied selectively. Seeking to enforce justice by resorting to injustice is invoking Satan to cast out Satan. If the Home Secretary believes that that is what the public wishes to see, he really should meet more members of the public.

8.10 p.m.

Baroness Seccombe

My Lords, it is with humility that I rise to speak after so many distinguished speakers, but I believe that I have a duty to reflect the very real concerns of so many members of the public. I agree wholeheartedly with my noble friend Lady O'Cathain. Most of my friends are fearful of being out alone at night. So I am grateful for the opportunity to speak in support of the Bill. Regardless of one's standpoint, it is without doubt a landmark Bill, which will have a radical and, I believe, positive impact on criminal justice in this country. Indeed, I share the view of the president of the Chief Superintendents Association that it is in the national interest that this Bill becomes law.

At the forefront of our minds in this debate, and in others dealing with criminal justice matters, must be the need to ensure that the criminal justice system commands public confidence that justice is done and is seen to be done; that the guilty are convicted and the innocent acquitted.

Before I move on to some of the specifics of the Bill I ask your Lordships to visualise the chilling picture of a criminal justice system in which the public, particularly in inner cities and high crime areas, cease to have any faith; where people take the law into their own hands because they have given up on the ability of the police and the courts to catch and punish criminals. This is the vigilante society, which is anathema to the rule of law which I hold dear. We must always keep an eye on preventing this from happening and avoiding starting down that road. This Bill will ensure that we do not.

Speaking from my experience as a magistrate for 28 years, I can say that little dispirits members of the public more than when they see someone sentenced, let us say, to six months' imprisonment only to find him—usually him—out and about after three months or so. Obviously, it is even more disconcerting when someone is sentenced to four years' imprisonment for a much more serious offence and he or she is then out of prison after two years. It makes a mockery of the courts and the system.

Sentences served by offenders must reflect the sentence that the court has imposed. This Bill will change current procedure and put sentencing on a more honest footing. If a judge intends a criminal to spend two years in prison, under the proposed legislation he will give him a two-year sentence. The confusing features in the current system will be put right by the Bill's proposals. In future, everyone—the judiciary, the defendant and the public—will know where they stand.

I welcome also the clauses introducing minimum mandatory sentences for the worst offences. I do not believe that it is the case that they will encroach on judicial independence. It is for Parliament to set the statutory framework for sentencing and for the judges to exercise their discretion within that framework. Indeed, I believe that I heard the noble and learned Lord, Lord Woolf, say that on radio this morning.

Automatic minimum sentences already exist. Maximum and minimum sentences work on the same basic principles—both set the limits within which judges exercise their discretion. The message sent out to would-be criminals would be loud and clear. I have never known someone who comes before the court for drunk driving not knowing that they are going to be disqualified for at least a year.

The provision for an automatic life sentence for second time serious, violent and sexual offenders like repeat rapists or armed robbers, will be welcome added protection for the public from such dangerous offenders. Giving a life sentence to a rapist who has raped twice will ensure that he will never be released to rape again if the Parole Board, and those working with him, believe that he still poses a danger to the public. I join the police and the public in welcoming that clause.

Burglary is a particularly wicked crime especially where elderly people are the victims. Having been the victim of burglary, I understand what a horrendous problem it can be. For someone who is elderly and who may be living alone, then I believe that for them it is so traumatic that their whole life can be changed and they may never be able to live in their own house again. So I believe that the public are perfectly justified when they expect the police and the courts to take this crime very seriously.

This Bill will ensure that those burglars who offend again and again on three occasions or more are taken out of circulation for a minimum of three years. I believe that that is right. The fact is that if persistent burglars get little more than a derisory sentence—for example, statistics show a sentence of 19.4 months on a seventh conviction—then prison for them will become little more than an occupational hazard in an otherwise lucrative, even if dangerous, profession.

I also welcome other measures contained in the Bill, particularly the discretion it will give courts to extend disqualification from driving to non-vehicle related offences, and the proposal to extend electronic tagging to 10 to 15 year-old offenders. These measures will give the courts greater flexibility to deal effectively with a variety of crimes that are a menace to the public on a daily basis.

I welcome the Bill. It is in the national interest, as I have already said. I believe that it will make a difference over time to crime in this country. I believe that the Bill will go a long way towards achieving the goal of protecting the public and at the same time bolster the rule of law by strengthening public confidence in the system's ability to do justice and uphold the law. I commend the Bill to noble Lords and hope that they will support the aims of the Bill.

8.17 p.m.

Lord Hope of Craighead

My Lords, had it not been for the presence of Clause 1(6) of the Bill, which provides that, An offence committed in Scotland is a serious offence for the purposes of [the clause] if it is a qualifying offence for the purposes of the Scottish Act, I would not have thought it appropriate for me, as a Scottish lawyer, to speak in this debate. Apart from Clause 38 dealing with the transfer of prisoners within the British islands, which I know from my own experience as a judge on the Scottish Bench to be a much needed reform and one which I welcome, and Clause 42, this is a Bill which, if enacted, will extend to England and Wales only.

Many noble and learned Lords and noble Lords with far more experience of English law than I have and a far better appreciation of the impact which these measures will have on the English system in all its respects have spoken and it would be presumptuous of me to add anything to their remarks. My own experience of the criminal law, both as an advocate and as a judge, was, until very recently, confined to Scotland which has its own system of law and procedures in these matters.

However, a number of difficult issues are raised by subsection (6) which will have practical significance for the operation of Clause 1 as a whole. Indeed, they affect the questions of principle which lie at the heart of the Bill. The fact is that the Border between England and Scotland remains open. People travel around the United Kingdom. The noble and learned Lord the Lord Advocate will know that only about 10 days ago many Welsh people were in Edinburgh not far from Murrayfield and no doubt, in a few days' time, many Scottish people will not be far from Twickenham. So these remarks are not made out of idle curiosity; they have some practical significance which must be of concern to anyone who seeks to make sense of the Bill.

Perhaps I may establish briefly my own credentials to speak in this debate, as other noble Lords have done. I should explain that for seven years until the end of last September I was the Lord Justice General for Scotland, which is the Scottish equivalent of the Lord Chief Justice. As part of my duties, I had the responsibility, as every Chief Justice in the United Kingdom has, of advising the Secretary of State on the penal element in sentences of life imprisonment. I also took a close interest in the workings of the Parole Board for Scotland and was therefore particularly interested in the detailed contribution of the noble Lord, Lord Belstead.

The purpose of Clause 1, the broad idea expressed within it, is, I understand, to deal with serious repeat crimes—the worst offences, as the noble Baroness, Lady Seccombe, has just said. There are therefore two factors which are crucial to the operation of the clause if a fair balance is to be struck between punishment—appropriate punishment, that is—which is the concern of the judge, and the need to protect the public, which is of particular and understandable concern to the Minister. Those factors are, first, the definition of what amounts to a serious offence and, secondly, the way in which the qualification under reference to exceptional circumstances, which others have mentioned, is to be interpreted.

I do not believe that it is possible for your Lordships to appreciate the full impact of Clause 1 without a proper understanding of the range of offences which are to be treated as serious offences for the purposes of the clause. The noble Baroness, Lady Young, addressed a very important question to the Minister when she said, "Please tell us what those serious offences are." Indeed, one must remember that the offences to which the question was directed include not only the offence for which the person is being sentenced, but also his previous offence which has qualified him for the life sentence. That is where the list of offences committed in Scotland becomes relevant to the Bill.

It should also be borne in mind that the examples commonly given by Ministers to justify this measure are almost invariably taken from the top end of the scale—the most violent or depraved examples of criminal conduct. There is no doubt that a life sentence may be appropriate at the top of the scale. Indeed, there is much force in the argument that the discretionary life sentence which is already available to, and used by, judges takes care of such cases. However, the point I would stress is simply this: if the margin at the top end of the scale is to be moved down to accommodate a wider range of offences, it becomes a matter of crucial importance to ensure that that margin is not set too low. To do that would undermine the impact of the life sentence in the minds of the public in those cases for which it was appropriate, as it would bring the whole system into disrepute. It would also have very serious consequences for all those who have to administer life sentences for the rest of the person's life, not to mention the individual on whom the sentence is passed.

It is against that background that I should like to draw three points to the Minister's attention, with particular reference to the inclusion of Scottish offences on the list. These matters will, I suggest, require careful study if the clause is to remain part of the Bill. I mention them in the full knowledge that this is a Second Reading debate and that the time is late. I do so in the hope that my observations may inform further debate when we come to consider the Bill in Committee.

The list of the offences is not to be found in this Bill but in the corresponding Bill for Scotland, the Crime and Punishment (Scotland) Bill. As I understand it, that Bill is still under consideration in another place. I hope very much that it will have reached your Lordships' House before the Committee stage of this Bill takes place so that your Lordships may have access to it when we come to examine this clause at that stage.

For the time being I can tell your Lordships—because I have a copy of the Scottish Bill with me—that the list of Scottish offences is already significantly wider than that in Clause 1 (5) of this Bill which lists the categories for England and Wales. As mentioned not long ago, eight offences are listed in subsection (5). The Scottish list already includes 10 categories of offences, three of which enter into areas of criminal activity which are not, I understand, covered anywhere in the English list. It includes sodomy and attempted sodomy; the broad offence of lewd, indecent or libidinous behaviour; and the unusual offence of clandestine injury to women. This is not the time to go into detail, but I should perhaps explain that clandestine injury to women is committed when a man has intercourse with a woman who is unconscious or asleep and that the offence of lewd conduct covers a very wide range of sexually deviant behaviour ranging from indecent exposure to the serious sexual abuse of children below the age of puberty. No one could suggest that those are not crimes which alarm and disturb the public.

The point to which I ask the Minister to direct her attention is this. If the theory to which Clause 1 is intended to give effect is that a second offence of the kind listed in subsection (5) justifies the imposition of a life sentence, how can it be right to impose the same sentence on someone whose first offence in Scotland was of a different kind from that on the list? If the list for Scotland had been directly comparable with the English list, assuming for the moment that that was possible—requiring no more than changes in wording, as often occurs in legislation relating to matters of procedure—there would have been no real difficulty. But the two lists are not directly comparable. This is due at least in part to the fact that most of the serious crimes known to the criminal law of Scotland are common law crimes. These are defined very widely and apply to a wide range of criminal conduct.

There has been a tendency in the preparation of the Scottish Bill—I must confess some responsibility as it resulted from some of my comments when the White Paper was discussed in Scotland—to extend the list in an attempt to include all kinds of conduct which might cause concern to the public and to make sense of the list. That echoes the point made by the noble and learned Lord, Lord Woolf, about creating a precedent. Here is a vehicle which can take on board more and more offences. The list may get wider still and, if devolution were to come about, it would then be for the Scottish Assembly to review the list in measures which would not come before your Lordships at all for scrutiny.

The inclusion of such a wide range of offences in the Scottish list is of concern for another reason—and this is my second point. In the Scottish Bill the corresponding clause is careful to provide—no doubt on the wise advice of the noble and learned Lord the Lord Advocate—that a conviction for a qualifying offence is only to be taken into account if it was obtained on indictment in the High Court. This, as I say, is a wise provision because many of the offences on the list may not be, on the facts of the case, very serious. So they are prosecuted in the sheriff court whose sentencing powers are more limited. But as I read the Bill no such provision has been included in the measure which is now before your Lordships. So, unless the clause is amended, we will have the very odd and, I think, highly unsatisfactory position that a conviction for a relatively minor offence of its kind in Scotland—which would not count as a first offence for the purpose of the imposition of a life sentence in a Scottish court because it was a conviction in the sheriff court—would have that effect in England and Wales, as the court in which the conviction was obtained is not a factor which is said to be relevant.

I should point out that it is in any event a matter of everyday experience in the Scottish courts that an offence which appeared to be appropriate for the High Court at the start of the case turns out, when the jury returns its verdict after listening to the evidence, to be less serious and more appropriate for a prosecution in the sheriff court. This is reflected by the terms in which a Scottish jury returns its verdict. A Scottish jury can delete passages from the narrative of the charge. The fact that the conviction was obtained in the High Court is no guarantee that the offence was, after all, a very serious one. But to insert such a qualification would go some way towards minimising the risk of injustice and serious distortion in the operation of this measure on each side of the Border.

Lastly, I should like to touch briefly on the words "unless there are exceptional circumstances" to which other noble and learned Lords have drawn attention. I share the concern expressed about the effect of these words. But a particular question arises with regard to the cross-Border implications. I ask the Minister whether it is envisaged by the Government that these exceptional circumstances may include the circumstances of the first offence, in particular whether that offence was a serious offence of its kind. The question is important because the judge who is being asked to impose the life sentence will have the circumstances of the case before him but not the circumstances of the first offence. Alternatively, is it the intention that the judge should have regard only to the circumstances of the offender and not the nature of the offences which have qualified him for a sentence of life imprisonment? This is a matter of importance because in some areas of road traffic law it is now established that the seriousness of an offence is not a relevant factor. The Government's position on this issue is required to be made clear. Furthermore, if it is intended that the nature of the offences can be taken into account at that stage, what procedures are envisaged to enable the relevant information from Scotland to be put before the trial judge in England? Why have they not been stated or at least provided for in the Bill to ensure that that information is made available across the Border without delay when it is required?

I firmly believe that the cross-Border implications of this clause, in addition to the other points made in the debate, give rise to practical difficulty and also questions of principle. Whatever one may think about the broad policy, surely the wiser course would have been to study the implications much more carefully before the Bill was introduced. As it is, lists as long and as wide as those in these two Bills will almost certainly give rise to injustice and, sooner or later—after, 1 fear, much damage has been done—to demands that discretion in these matters should be returned to the judges who, after all is said and done, are best placed to see that a just and effective sentence is imposed in each case.

8.33 p.m.

Lord Taylor of Warwick

My Lords, a few months ago I was in the Crown Court defending a 23 year-old labourer who had pleaded guilty to a number of dwellinghouse burglaries. He said that his parents were in the iron and steel business: his mother ironed while his father stole. My instructions were to ask the judge for one last chance to avoid prison. I told my client that this time prison was likely because I had already asked for a last chance twice that year. I also happened to be appearing before the same judge who had dealt with the matter previously, so it was not my day.

My client asked anxiously whether I thought the judge would remember him and I replied that he probably would. I asked why he did it. He had a loyal girlfriend and a job and yet he kept getting into trouble. He looked at me sadly and said, "It is like this. I am too easily led by my socio-economic peer group". I said, "How do you know that?" With a big grin, he responded that his social worker had told him. That day he did go to prison. Ten minutes after the sentence had been imposed, I went to see him in the cells. He had already worked out his release date and knew that he would have to serve only half the sentence anyway.

I am afraid that that example is only too common in our courts. The general public are fed up with it, in my view. In particular they want protection from serious, dangerous and persistent criminals. They want to have greater confidence in the process, and that is what this Bill is all about. I support the Bill in principle, although I suspect that the Committee stage will be most fruitful and certain matters of detail may need to be addressed, especially in view of the comments made by distinguished members of the judiciary. In view of the excellent speeches made by both them and other noble and learned Lords earlier, I propose to be much shorter than I would otherwise have been.

The Home Secretary said in another place that there could be a number of exceptional circumstances in which judges could exercise discretion not to impose mandatory or minimum sentences. He gave only one example but a rather interesting one. He referred to the case where a defendant had helped the police to bring other serious criminals to justice. It may be a sad feature of our system but without the co-operation of so-called police informants fewer crimes would be solved. I am concerned about this particular matter. At present, a judge can reflect that factor by reducing the severity of his sentence without referring in open court to the fact that the defendant is a police informant, but the Bill proposes that the judge shall state in open court the exceptional circumstances for not imposing the sentence. Some defendants who have assisted, or may consider assisting, the police will be fearful of that fact being revealed in open court because of reprisals. I have no sympathy for these people; I do not plead their cause. But this may reduce the valuable sources of information which are available to the police. I should like the Minister to give this matter some thought.

It has been argued that criminals are deterred mainly by the thought of getting caught rather than the severity of the sentence. Crime detection and prevention are important. It is for that reason that the increase in police numbers, closed-circuit television cameras and the DNA database are welcome. But surely the persistent criminal will not be deterred if he believes that once caught he will receive only light punishment. One regular client joked that before a burglary he always took a bath so that he could make a clean getaway. He treated the whole matter as a joke. To him, a short prison sentence was really an occupational hazard, just like paying income tax. There is no doubt that the public want more criminals to be caught, but they also want more honesty in sentencing by which I mean that offenders are properly punished.

I am firmly in favour of the proposed mandatory life sentence for second time violent and sexual offenders. A couple of years ago I had the privilege of meeting a very brave and gracious lady: Jill Saward. You will recall that she was raped by two of the three men who burgled her father's Ealing vicarage in 1986. Her father and then boyfriend were beaten until they were barely alive. I listened with horror as she told me of some of the terror and trauma that she suffered years afterwards. I believe that the public viewed it as an insult that her attackers were sentenced to just three and five years' imprisonment each for the rape—less than for the burglary. The public, especially women in this regard, look for a signal that this kind of behaviour will not be tolerated.

These proposals do not amount to three strikes and you are out as in America. They are carefully targeted on serious, dangerous and persistent offenders. However, this Bill reflects the American intolerance to crime, and we should make no apology for it. There is no doubt that in America this strong approach to sentencing has reduced crime, and it would continue to do so here.

Critics of the idea that prison works should not ignore the latest reconviction rates which show that 51 per cent. of all prisoners reoffended within two years of being released compared with 55 per cent. of all those given community service orders. That points to the fact that the prison-works concept has some merit behind it.

Less media attention has been paid to the fact that the Bill will mean also an enormous reduction in custodial sentences for fine defaulters; discretion for courts to reveal the identity of young criminals; longer supervision of offenders after their release from prison; and new hospital orders for mentally ill offenders. I welcome all those proposals.

There is no doubt that the Bill has the support of the police and the public. All the broadsheet and tabloid newspapers back the proposals. That is interesting. We often deride the popular press for being simplistic and vulgar, but it is so often an accurate barometer of the nation's mood. I shall certainly keep taking the tabloids. I apologise for that joke, my Lords. We ignore public opinion at our peril.

The Bill is not about sentencing offenders such as the poor cleaning lady whom I once represented. With a large family and debts, she literally found that grime did not pay. She shoplifted on impulse. It was the first time she had done that. In her confused state, she managed to include among the four small items she stole a free sample. The Bill is not about that type of criminal. It is about protecting the public from dangerous and professional criminals.

The Bill is not the solution to the crime problem, but it could be part of it. Those who criticise it should come up with something better. They should not merely criticise it. We have to face the music even though we may not like the tune—that is, we need to take a tougher line for serious crime. The Bill hits the right note, and, in principle, I support it.

8.42 p.m.

The Earl of Mar and Kellie

My Lords, the noble Lord, Lord Taylor of Warwick, took a quick and friendly swipe at social workers. As a social worker from the criminal justice system, and someone who has worked as a prison social worker, a community service supervisor, probation supervisor, and a project worker on an intensive probation project, and, obviously the writer of many social background reports, I use that as an introduction to saying that I want to focus my remarks on clauses in Part III. Parts I and II have been well thumbed today, whereas Part III has been looked at by only a few, including the noble Lord, Lord Taylor of Warwick.

As regards Clause 31, I have no problem with the idea that fine defaulters be diverted away from prisons to community-based disposals. With up to 20 per cent. of the prison population consisting of non-payers of fines, for whom there was initially considered to be no need for imprisonment, that proposal clearly has some merit. My difficulty lies in the use of community service as a disposal in such circumstances.

Community service is an official alternative to custody. It is in danger of being trivialised if it is used for minor offenders who would not have qualified for imprisonment. Community service is a useful medium for restitution, and the reintegration of offenders into society. The working hours allow an environment for informal discussions about offending and reintegration issues, which is often more natural than may be found in a formal supervision session. I should prefer the use of attendance centre orders, as in Scotland, which would meet the needs of society and minor offenders who cannot or will not pay their fines.

There is an interesting proposal to use driving bans for non-payers of fines. I understand at what that is aimed, but I am worried that those driving bans will be ignored. They will be difficult to police. It means we could be generating a number of victims of people driving while uninsured. No doubt we will discuss that matter later in Committee.

The use of curfew orders or electronic tagging is proposed. Tagging is a form of part-time house arrest only. There is no input about offending issues or behaviour modifications. It is useful only as a head count, for the contractor running the scheme is unlikely to be equipped to do anything more. Its use for young people is especially deficient in that respect.

Among the many things needed by young offenders, one priority is an authoritative and sympathetic person to whom they can speak and relate. An electronic tag attached to a person with low self-esteem, itself the commonest background factor in offending behaviour, does nothing to correct that feature of poor self-esteem. It may even encourage the wretch to whom it is clamped to build up a notoriety and identity of ill repute which is counter productive.

I am arguing that if electronic tagging is to be used, it is appropriate only for those who are well-adjusted and who, in the words of the popular saying, have gone off the rails. To spell that out, they are well brought up chancers who know the score, or, to revert to the saying, know where the rails lead and can be nudged soundly back into decent behaviour. In the meantime, the inadequate offender, highly marginalised, needs greater care than electronic tagging can afford in order to begin to overcome his offending behaviour and sort out his usually chaotic life style.

With regard to Clause 33, there is good sense in looking for an alternative non-custodial disposal for persistent petty offenders who have many fines to pay with questionable prospects of doing so. Their infuriating offences rarely merit custody, but they are likely to be imprisoned for non-payment of their fines. Imprisonment had been judged inappropriate initially, and so it is right to look for another non-custodial disposal. Fine defaulters take up a great deal of accommodation in prisons, stay only a short time and cause unnecessary administration and expense. Again, I wish to make a plea not to trivialise community service in that respect.

Finally, in Clause 34 we come to what I consider to be a most unreasonable development: the abolition of the need for the offender's consent to a community-based sentence. That contradicts all that I was brought up with. Almost all community sentences: probation orders, with or without special conditions, community service orders, attendance orders and future curfew orders have breach proceedings in court in the event of non-compliance.

For many years, probation was not considered to be a sentence because the offender could be returned to court on a breach and be repunished for the offence, usually by imprisonment. A probation order provides that the court accepts that the offender has committed the offence levelled against him; the offender has given his consent to the making of the probation order, recognising that he can be returned to court if he is in breach of the conditions of the order. That could be by non-compliance with the terms of the order or because he has committed a further offence. If he has not complied with the conditions of the probation order he can be resentenced for the offence. If he has committed a further offence he can be punished both for the new offence and for the original offence. I believe it to be unjust to award such a consequential type of disposal without the offender's consent.

Perhaps I may draw attention to the benefit of seeking consent when discussing a community sentence with an offender at the stage of the social background report; post-conviction but pre-sentence. The issue of consent allows a focus on the purpose of the community sentence in terms of compliance and of the possible personal benefit, development, rehabilitation and reintegration. Community sentence procedures are intrusive into the offender's life and are intended to be. That must be pointed out in advance. It is particularly true of probation orders, especially those with special extra conditions. Such intrusion is wholly voluntary or non-existent when paying a fine or serving a prison sentence. I hope that that issue and Clause 34 will attract the attention they deserve when the Bill arrives in Committee.

8.51 p.m.

Lord Dubs

My Lords, I wish to deal with the effect of the Bill on mentally disordered offenders. The issue was referred to in passing by the Minister and by the noble Lord, Lord Renton, but has not been subjected to scrutiny tonight. I should declare an interest at the outset. I am a non-executive director of Pathfinder Mental Health Trust in south London and through it have involvement with people in its medium-term secure unit.

Of course, we must be concerned about protecting the public but we must also seek to achieve the right balance between the needs of health treatment and the needs of the criminal justice system. Striking the right balance is not easy. We must also be aware that in our prisons today are a large number of individuals who are mentally disordered or mentally ill and have not been picked up by the system which led them to be there. That is of concern certainly to people who work in prisons because of the difficulty they have in dealing with such prisoners.

Perhaps I may first deal with one omission from the Bill. We need something more to help the courts to identify and assess mentally disordered people who come before them. In the other place an amendment was tabled which attempted to set up a psychiatric assessment scheme linked to the courts. Perhaps in Committee we can return to that proposal in order to try to help the courts to be better aware of the nature of mental disorder among convicted people.

I turn to the main points of the Bill and to the mentally disordered offenders who are clearly identified by the courts. Part II deals with the power of the courts in disposing of mentally disordered offenders. We have a new concept before us; it is a hybrid order, as described in the White Paper, which provides that the courts having imposed the sentence of imprisonment can link that to a hospital order. That means immediate admission to a mental illness hospital, which I presume is always a secure unit, for treatment.

The idea of the hybrid order stems from a Home Office and Department of Health working group which reported in 1994 under the chairmanship of Dr. John Reid. The report linked the hybrid order only to psychopathic disorders. The idea was that having been treated in hospital individuals would return to prison only if the treatment was inappropriate or had been refused. Therefore, the concept was more limited than that contained in the Bill, where the intention is much wider. It appears that disordered offenders should be returned to prison after a period of hospital treatment even if the treatment has been successful. Although it is not stated in the Bill, the Minister will have powers to extend the provision from psychopathic disorders to all disordered offenders. Then we should have the situation in which someone is sent to hospital, and is helped and treated but must then go to prison to complete the sentence imposed by the court. Those can be very wide powers if the Government choose to take them up, as the Bill would empower them to do.

That presents a difficult dilemma for those who are treating people in secure units in hospitals for the mentally ill. Let us suppose that a man receives a 10-year sentence, the first four years of which are spent in a secure unit in a hospital for the mentally ill. After four years the doctors judge that he has been treated and, in so far as one can say of mental illness, has been cured. Under the present situation that individual, having been cured, can be released, although it may be that the Home Office must approve such a release. However, under the Bill the hospital must either send the individual to prison or keep him in hospital occupying a bed. Sending an individual who has had four years' treatment for a mental condition back to prison might negate the benefits of the treatment. When the individual is eventually released after the sentence he may then be even more dangerous to the public than he would have been if he had been released from the secure unit after successful treatment and kept under some form of supervision.

There are a number of concerns, the first of which is a point of principle. How content can we be that a mentally ill person should be punished and imprisoned? I am not saying that the answer is always yes or no, but the problem is difficult. Should people who are mentally ill at the time of committing an offence be punished for it?

Secondly, the idea of continuity of care for mentally ill people, or for people who are mentally disordered, will not be possible if the first three or four years of the sentence are in a secure unit and the next four or five years are in a prison. It is difficult to envisage that the same type of care will continue from the secure unit in hospital into the prison system. There is a problem therefore about what will happen when the individual is released.

Thirdly, aftercare is essential in all such instances. If an individual has spent several years in a secure unit, then goes to prison and is then released it may well be that the prison is a long way from home and from the hospital at which he was treated. I wonder whether such an individual will be more dangerous to the public.

I have two further concerns. First, it may well be that a consequence of the provision is that more mentally disordered people will be in secure units in hospitals for the mentally ill. That will increase the cost to the health service and make life more difficult. There is already an enormous pressure on beds in such units. The hospital with which I am involved is always full and could take many more people if it had a few more beds.

I turn now to my last concern. Is it just possible that the courts might be tempted to use this hybrid order as what someone called "an easy option"? In other words, it may be said, "Well, that's a way of dealing with people. They will get some treatment in hospital and then they will serve the rest of their time in prison". Surely there is a danger that we might end up with more people in prison than under the present system. I suggest that that would not be protecting the public; it would simply mean more people in prison, even though those individuals were mentally disturbed at the time of the offence and when the sentence was imposed upon them.

In her opening speech, the Minister actually gave us some hope; indeed, I hope that she meant it. What we need is more discretion. We might simply have a system for dealing with such people which gives little or no discretion—for example, a person would get a 10-year sentence with, say, four years in hospital with the balance being served in prison. It would mean that there would be very little discretion other than that afforded to doctors. I noted the Minister's words carefully. She talked about an individual going from hospital to prison and used two words specifically; namely, "if appropriate". I am not sure what the source of that phrase is other than that the Minister said it. I do not know whether there is anything in the Bill, or in one of the mental health Acts linked to the Bill, which gives that discretion.

However, assuming that the position is clear, I should like to know a little more about how that decision, as regards the appropriateness of a transfer for a treated person from hospital to prison, would be taken. How would that appropriateness be judged, and how would that whole process work its way through? If we have more discretion in the way that it operates it is possible that the system will not be too bad. But, with a lack of discretion, I fear that we are embarking on a course which may not be a wise one.

9 p.m.

Lord Hacking

My Lords, 25 years ago when I first entered your Lordships' House—and I certainly did not expect to be here for more than a few years—I was a practising member of the Bar and regularly appeared on criminal matters before magistrates' courts, quarter sessions and assizes (as they were then called). Since then, I have remained in the law but I have concentrated on commercial matters; and, indeed, have become a solicitor of the Supreme Court. Therefore, in the circumstances, it seemed to me that I did not have the freshness of knowledge on criminal matters to make an early speech in the debate. In fact, I asked if I could be called later and am most grateful to the Whips' Office for agreeing to that proposition.

I thought that the correct approach was not to prepare a speech but to refresh my memory of the argument that was produced at that excellent debate to which I listened on 23rd May of last year, and to listen also to the argument being presented today in this House. Before I state where I have been persuaded and why, I should like to pay a particular tribute to my noble friend the Minister for the care and attention that she gave in her opening speech; for the fact that she is indeed carrying this as one of three major Bills through the House; and for the further fact that my noble friend has been present—as has the noble Lord, Lord McIntosh—throughout the debate and listened to every single speech.

Again, before I say where I stand on the issue, I should like to say that I respect the sincerity of the Home Secretary and of those who have supported the Bill in this House. I remember the Home Secretary some 35 years ago at the Cambridge Union. If my memory is right, and I am not letting any cats out of the bag, I recall that there was rather a Left-wing inclination in the Conservative Party in those days. I repeat that I entirely respect the sincerity of those who support the Bill, particularly my noble friend the Minister.

However, most regretfully, I have come to the conclusion that this is a bad Bill, addressing a very serious issue in the wrong way. Yes, crime is serious and yes, it is increasing. I live in South London with my family. All of us have been victims of crime during the past 10 years. I am sorry that my noble friend Lady O'Cathain is not now present in the Chamber. My wife walks back every night from St. Thomas' Hospital, under those dark arches of the railway. Yes, she has been chased by criminals and it is frightening for women. It is also rather frightening for men, too; I do not like being under those dark arches, either.

I have come to the conclusion that this is a bad Bill, addressing a serious problem in the wrong way for all the reasons that have been addressed to your Lordships by the noble and learned Lord the Lord Chief Justice, and others who have participated in the debate tonight. Therefore, I shall not repeat those arguments. However, I should like to underline the concerns raised by the noble Lord, Lord Dubs; concerns which are shared by the Royal College of Psychiatrists and the Law Society on the impact of the Bill upon those who are mentally ill.

The noble Lord, Lord Dubs, took us very carefully through his concerns. I believe that he was chiefly addressing the way that hospital direction orders will work under Clause 43. My noble friend Lord Renton also expressed concern about that clause. But perhaps I may go straight to the absolute basics. As I read Clauses 1 and 2, it seems to me that the mental disability of the accused will not be a matter that is taken into account. It follows from that that severely deluded and hallucinated people, suffering, for example, from schizophrenia or severe learning disabilities, will find themselves ab initio facing a mandatory prison sentence. I am glad to see the noble Lord, Lord McIntosh, nodding his head in agreement. That is a matter of great concern that has been expressed by the Royal College of Psychiatrists.

The question that your Lordships should be asking is: how did the Bill come to be here in this House in its present form? More directly, what have Her Majesty's Opposition been doing in another place to allow this Bill to come forward in its present form with some form of their qualified support? We know what Her Majesty's Opposition have been doing in this House. We well remember the speeches made on the debate of 23rd May last. I notified the noble Lord, Lord Williams, that I intended to quote from two paragraphs of his speech. Having criticised and also drawn to your Lordships' attention the view of the Select Committee on mandatory sentences, the noble Lord did something which I believe is always very helpful in your Lordships' House—he gave some personal examples. He said: I prosecuted a determined professional burglar whose life's income came from preying on others. He terrorised people in their own homes; tied them up with electric flex so that they almost died. He did it on a number of occasions. He was convicted on several occasions and was subject, rightly, to a harsh sentence indeed. Put the burglar at the opposite end of the scale—the rather dim youth who puts his hand through the open back window of domestic premises and takes a loaf or a bottle of milk and does it three times. Is he now to be the automatic recipient of a minimum, mandatory sentence? That is not just; it is a perversion of justice and one which, I am sorry to say, is brought about on the basis of low motive".—[Official Report, 23/5/96; col. 1031.] He then went on to say (at col. 1032 of Hansard) in reference to pleas of guilty, There is a virtue in pleas of guilty. It has nothing to do with the ignoble point that the time of the court is saved or that public expense is lessened. It is much more important than that. A plea of guilty is the public acceptance of moral responsibility for the harm done to the victim. In a very deep sense, it is the beginning of moral recompense for the victim who has been wounded. What inducement will there be for anyone properly to be advised to plead guilty if we have minimum mandatory sentences, imposed by diktat from the Home Office and not considered on a reflective, informed basis by someone who has heard the evidence? I shall not quote from the noble Baroness, Lady Mallalieu, who summed up; but I hope your Lordships will take it from me that the noble Baroness equally rejected mandatory sentences in as strong terms as those of the noble Lord, Lord Williams of Mostyn.

If that is right, I am troubled that the Bill should have arrived at your Lordships' House in its present form. Even if I displease the noble Lord, Lord McIntosh, by yelling, "Not-Content" when the Question on Second Reading is put to your Lordships at the end of this debate, I believe this Bill should never have come to your Lordships' House in its present form and should be sent back to the other place for it further to reflect upon it.

9.9 p.m.

Viscount Tenby

My Lords, I begin by declaring an interest both as a magistrate and as a member of the Magistrates Association. Whilst we share a common purpose and interest in most respects, I must stress that any views I express tonight are mine and mine alone.

The trouble with being a "tail ender", as noble Lords will know, is that most of the runs have already been scored, and, I might add, by better batsmen. However, there are parts of the outfield that have not yet been fully explored. The Minister, who has perhaps had more than her fair share of difficult tasks in the past 10 days, and who in my view deserves every word of the gallant tribute paid to her by the noble Lord, Lord Renton, may be relieved to hear that I do not intend to dwell tonight on the main concerns relating to sentencing in the higher courts. Indeed, I already feel rather like a skiff running for safety between two lines of men-of-war, with the broadsides of the judiciary to port and the massed canonry of the Government—and perhaps even part of the Opposition—to starboard. I hope that I have the geographical and political dispositions right in nautical terms.

I cannot, however, in general resist the temptation to make just one comment about the main concerns which have arisen as a result of the Bill. Anyone who has been involved in sentencing, in the lower courts no less than elsewhere, is aware that only those intimately concerned in a case can know the full details and all the many circumstances surrounding it. It is also true that no two cases are exactly similar in every detail. In other words, each should be treated on its own merits, and that particularly applies where sentencing is concerned, as the noble Lord, Lord Carlisle, said so graphically.

Having said that, it is undoubtedly the case that in supporting the Bill another place has been responding to the will of the people in this country, however ill-informed that opinion may be in the eyes of the judiciary and others. What exactly has caused this upsurge of feeling must be a matter of conjecture and will to a large extent depend on the political ground on which one stands. A greatly increased crime rate, sensational media treatment, personal experience of crime, the liberal policies of the 1970s and 1980s, all have their advocates. However, I suggest that the one thing we cannot afford to do in a democracy—after all, it is a democracy, is it not?—is to ignore this genuine feeling with an irritated frown or a helpless shrug of the shoulders. Therefore we must look again and again to check whether we have it right, and we should perhaps ask ourselves whether we need to educate more and communicate better. I suggest that this is a critical area.

As a magistrate, my main concerns lie inevitably in those sections of the Bill relating to the lower courts. In this context I feel I should congratulate the Government on the initiatives they are proposing to reduce the number of offenders committed to prison for wilful refusal to settle fines. This has long been a preoccupation of mine. Indeed I recall that I made my maiden speech on the subject of alternatives to custodial sentencing many years ago in a debate initiated by my noble friend Lord Allen of Abbeydale, whose experience and wisdom in this field are rightly acknowledged by all as second to none. Since then, we have frequently returned to the topic. I have always been mildly irritated—that is all one is allowed to be in this House, mildly anything—by speakers who have understandably railed against such imprisonments without offering any practical suggestions as alternatives.

The brutal truth is that in the sophisticated game of parting an offender from his or her money, there must always be an ultimate sanction available to a court, otherwise the debt to society remains unpaid and a fines system which accounts for, I believe, some 80 per cent. of all disposals in the lower courts, becomes discredited.

Two proposals are being made now which, wisely in my view, will be tried out in pilot schemes before full implementation. First, the use of disqualification from driving for an offence not necessarily related to motoring itself, for example, non-payment of fines, is an imaginative leap which nevertheless poses a number of problems both in terms of administration as well as in questions of judicial fairness. But if those are recognised and faced at an early stage, there is no reason why this should not be a useful addition to the disposals available to magistrates even though I suspect that the sanction may be used sparingly at first, and rightly so.

Sentencers are aware that for many the use of a car may be the difference between having and not having employment. Further, any measure which dramatically increases the number of disqualified drivers will inevitably increase the number of those who deliberately choose to drive illegally while disqualified, with all that that entails for all those unfortunate enough to suffer from such recklessness. In addition to these important considerations, there must be severe administrative consequences for the police, the courts and by no means least, the DVLA at Swansea. Persistent traffic offenders who are disqualified may well be known to the local police. The new category, disqualified for unrelated offences, will be more difficult to target and that difficulty will be compounded if, for example, a fine defaulter suddenly acquires the means to discharge his debt and, therefore, presumably becomes eligible to have his or her licence returned to him or her. It may be appropriate in such cases for the licence to be kept not in Swansea but at the relevant court. One must also add that for the hardened criminal, the prospect of driving while disqualified will be like water off a lag's back.

However, if the new proposals are used with care and sensitivity, and the administrative machinery is capable of coping with what will assuredly be a greatly increased workload, then we look forward to seeing what the early returns show.

The other proposal in relation to sentencing concerns the introduction of community service orders for a lesser range of offences, including again fines, and on this I congratulate the Government warmly on producing something which at long last may provide the answer to all our concerns about inappropriate custodial sentencing. I am sorry to part company with the noble Earl, Lord Mar and Kellie, but, unlike him, I say to this proposal, "Alleluia". I would, however, voice two concerns. At present a community service order is a serious disposal—to use the court formula, "serious enough". I believe, accordingly, that the new orders for lesser offences, if only to prevent confusion and not to debase the coinage of the original community service orders, should be called something else. The term "work orders" has been suggested. There is, too, the example of Scotland which has supervised attendance orders. Why does Scotland always seem to be ahead of us on these matters? I can understand why it wants independence.

My other point which does not so far appear to have been addressed by the Government is that the measure will inevitably require considerable additional resources, in particular in manpower. I suggest that it is such an important initiative that it is essential that it does not go off at half cock because of inadequate funding. I would welcome the Minister's assurance that adequate resources will be made available. If the experiment fails through lack of cash, we shall have learned nothing and perhaps be wrongly put off going down this road for years to come.

Finally, despite the widespread criticism which will undoubtedly emerge from some quarters regarding the proposal to give discretion where it is deemed appropriate for courts to name certain juvenile offenders, I say only that many will feel that, providing the freedom is not abused, such a step is long overdue.

This is an important Bill which may or may not see the light of day. However, whatever its fate, it covers much new and hotly disputed ground and it seems inconceivable that we can ever return to the status quo, as some would like. As I hope that I have indicated, I believe it to be a curate's egg of a Bill with clauses to condemn and to applaud. Let us hope that as a result of our deliberations we can make the administration and execution of justice better in this country and that by our persuasion and logic we can ultimately carry the country with us.

9.20 p.m.

Baroness Anelay of St. Johns

My Lords, today we have heard from a legion of lawyers—or, in the context of their contributions to the debate, perhaps I should call them a battery—and there are yet more to come. I stand here, however, as a member of a larger legion of sentencers. Like the previous speaker, I am a magistrate, one of over 30, 000 volunteers who dispose of over 95 per cent. of criminal cases in this country. I feel emboldened to speak having heard my noble and learned friend the Lord Chancellor encourage the noble Lord, Lord McIntosh of Haringey, last Friday morning to continue with his Opposition stewardship of the stalking Bill and not surrender it into the hands of a lawyer. He argued that the layman's view can be useful and effective in debates affecting the law and the legal profession. I wholeheartedly agree.

I also feel a duty to speak on behalf of an even larger group of people: the victims and potential victims of crime. Sentencing is a complex and often difficult task even for those of us who dispose of less serious matters. Courts should never be expected to exercise their sentencing powers with one eye on the hovering hand of the tabloid journalist, even if that journalist is my noble friend Lord Tebbit. But they must never disregard public opinion itself. They should recognise that sentencing practice may need to be changed to reflect the public's desire to show their disapproval of specific criminal activities and to live their lives free from the threat of such crimes.

Today, the public believe that, too often, courts impose sentences which fail to match the gravity of the crimes committed. I therefore welcome the extension of mandatory life sentences to those new categories of offences listed in Clause 1 of the Bill. Prison is the only suitable punishment for the most persistent and dangerous criminals, and certainly the only way of making sure that the public get the protection that they deserve.

Many noble Lords spoke about Clause 1. I wish to refer to just one part of it, subsection (5)(d), which would bring within the scope of the mandatory life sentence, an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent)". Over the past months, opponents of the Bill have sometimes used Clause l(5)(d) as evidence that the extension of mandatory life sentences to new categories of offence is flawed. They have argued that this is an offence which can occur in the heat of the moment—typified perhaps by a "glassing" in a pub. They say that the Bill takes that offence into a new category of seriousness by making it a qualifying offence for an automatic life sentence upon a second conviction.

But they are wrong. If someone becomes embroiled in a violent attack in the heat of the moment without having a specific intent to cause grievous bodily injury, then that person would be charged under Section 20 with the lesser offence of unlawful wounding or unlawfully inflicting grievous bodily harm.

For the offender to come within the provisions of Clause l(5)(d) of the Bill, the jury must be satisfied that the offender is not only guilty of deliberately causing serious bodily injury, but had the specific intention to do it.

When we talk about offences of this nature, we are dealing with injuries from which it is often a matter of luck that the victim did not die as a consequence. If that sounds too melodramatic, then let us consider the case of the pub brawl referred to in passing earlier in the debate, the glassing where the element of intent has been proved. The victim is in a position where he or she is at the receiving end of an assault with broken glass. I suggest that most people cannot insert a broken glass with absolute precision into someone's face or neck so as to avoid the main arteries. So if somebody is convicted of that type of offence for a second time, it is surely at least an indication that that person is a danger to the public and should not be released until the relevant authorities are satisfied that the person no longer represents a danger to the public.

After all, if the victim were to be unlucky and die from those injuries, the intention to do grievous bodily harm is sufficient to found a conviction for murder. Therefore, we are dealing with really serious criminal activity from which the public requires and deserves protection.

Of course, I appreciate that no two cases are exactly the same. But judges can reflect that by their use of the tariff or even perhaps by the application—dare I use the phrase after what has been said today?—of the "exceptional circumstances" provision. Therefore, I can see no valid reason why a second conviction for this category of offence should not be subject to a mandatory life sentence.

Public debate and debate in this House has concentrated on the question of mandatory life sentences in a way that has almost obscured discussion about those measures in Part III of the Bill which make innovative use of non-custodial sentences and seek to extend them to circumstances where imprisonment is no longer considered the appropriate penalty. I am disappointed that more attention has not been focused on those measures.

Speaking as a magistrate—and I also declare an interest as a member of the Magistrates' Association—but mainly as an individual, I am grateful to the noble Viscount, Lord Tenby, for his lucid arguments about the measures in Part III. I welcome measures which will give courts the opportunity to avoid the need to impose prison sentences for non-payment of fines. But here I shall take a leaf out of the book of the noble Lord, Lord Mishcon, as he read it earlier this evening, and say that because the matters in Part III have been so ably covered by the noble Viscount, Lord Tenby, I shall not repeat all that at this late hour, save to say—those dreadful words—that I welcome the intention to introduce a pilot scheme to test the proposal to give magistrates the discretion to impose a disqualification order as a measure to enforce the payment of a fine.

As someone who has been involved in pilot schemes, I ask the Minister to ensure that this pilot scheme is as straightforward in its operation as possible so that its effectiveness is not compromised.

I support the principles of the Bill and look forward to a lively and fruitful time in Committee.

9.27 p.m.

Lord Thomas of Gresford

My Lords, some years ago I prosecuted two men who attacked an off-duty doorman, a bouncer, at a party. He was rendered unconscious. He never came round or recovered and 14 days later he died of pneumonia. It was not possible to link his fatal illness with the attack that had been made upon him. As a result, the two men were prosecuted under Section 18 of the Offences Against the Person Act 1861 and were duly convicted. The High Court judge who tried the case then sentenced them. He made it clear that he was not sentencing them on the basis that they had killed the deceased, that they were responsible for his death, and he passed a suspended sentence of imprisonment. The furore that then broke out in the public gallery of that court is something I shall never forget because the relatives of the deceased were utterly incensed. The two men, who were still in the dock, were triumphant and challenged the family to meet them that night so that a fight could take place.

It was at that moment that I realised the force behind the sentiment expressed earlier today by my noble friend Lord Russell when he said that the basic force behind the criminal justice system is to prevent private vengeance. When something like that happens and a completely inadequate sentence of imprisonment is passed, private vengeance is not assuaged. It is an act of trust for a victim and for a victim's family to subsume their anger and their sense of vengeance. For them to do that requires public confidence, their confidence in the criminal justice system. The criminal justice system must deliver justice and fairness for the state, the victim and family and, indeed, for the accused.

A moment ago the noble Baroness, Lady Anelay of St. Johns, talked about her concern for the victims. I can assure her that we on these Benches share that concern. It is a pity that the Home Secretary, Mr. Howard, did not share that concern when he revamped the Criminal Injuries Compensation Scheme so as to reduce compensation for victims of violent crime.

Let me deal first with the concept of honesty in sentencing. The Minister said that everyone should know what the sentence means. The sentence should be transparent. But her proposals, as set out in Clause 1 (2) state: The court shall impose a life sentence, that is to say—… where the person is 21 or over, a sentence of imprisonment for life". Everybody should know what the sentence means. We all know that those words do not mean what they say. As the noble and learned Lord, Lord Ackner, pointed out, that is completely misleading for the public, who should have confidence that they can understand the sentence that has been passed.

When the Home Secretary sloganises his half-time sentences for full-time crime, again, as the noble and learned Lord, Lord Ackner, pointed out, it would suggest or imply that a person sentenced to four years' imprisonment will serve four years. But we know that that is not the case either. So the suggestion that the Bill will promote honesty in sentencing is defeated by the very words of the Bill. It is a charter for dishonesty in sentencing.

As the noble and learned Lord, Lord Woolf, pointed out, it will lead to plea bargaining, the transfer of the discretion from the judge elsewhere, as the noble and learned Lord the Lord Chief Justice put it. From personal experience I can tell your Lordships that I know what will happen when the situation arises that a person faces a mandatory life sentence. The CPS will say, "We do not have the resources to fight this case. It is open and shut but we do not want to spend money. We will take a conviction for a lesser offence." The prosecutor will be happy because he will have the certainty of the conviction; the defendant will be happy because he will avoid the mandatory life sentence; and as for the judge, he will have cleared his lists. But what is vital and important is that the public and the victim will not know what has gone on and why that more serious offence has been reduced—to save money and to avoid the consequences of mandatory sentences of that type.

The role of the judge in sentencing is crucial. I was disappointed to hear the noble Lord, Lord Tebbit, describe how, in his view, confidence needed to be restored in the judicial system. He felt that judges who criticised anything that was advanced by the Government in this field had entered into the political field and that people were confused by sentencing policy.

Lord Tebbit

My Lords, I am grateful to the noble Lord for giving way. If he thought that is what I meant, he was quite wrong. Of course, I welcomed the contributions to the debate today from the Law Lords. But what I said was that I felt that it was not helpful to the respect for the judiciary that so many members of the judiciary today seem to have followed the example of Mr. Justice Pickles and found themselves unable to resist getting on the radio and in the tabloid press with their comments about these matters, which I thought were much better discussed in this forum.

Lord Thomas of Gresford

My Lords, I cannot recall any judge other than Judge Pickles taking to the television, radio or the popular press to describe why he passed a specific sentence. I have no recollection of that. If the noble Lord, Lord Tebbit, has, no doubt he will tell me about it later.

I was even more surprised to hear from the noble Lord, Lord McIntosh, about the inadequate Court of Appeal guidelines and enormous differences in sentencing and from the noble Lord, Lord Renton, about the differences between the tough and the more liberal judges—he was referring to his experiences of some 25 years ago. The fact of the matter is that over the past 10 or 20 years considerable efforts have been put into judicial training to ensure consistency of sentencing and that the right sentences are passed throughout the country.

The attack upon the judiciary made by the noble Lord, Lord Tebbit, reminded me of what I hope may be my family motto: "Who can we blame?" It is easy to attack the judges in order to draw attention away from what we on these Benches consider to be the failure of government policy in this field over many years—varying policy at that. But perhaps the noble Lord, Lord Williams of Mostyn, can confirm that at a sentencing conference some five or more years ago we were addressed by a senior judge who told us, in a typical fashion, "Now listen, boys"—of course there were no female judges present on that occasion—"you have heard that the Home Office wants to send people to prison for shorter periods because they have not got the prison space. Do not pay any heed to that. If you think they should go to prison, you send them to prison and let the Home Office find places for them". That was not a long time ago, and that was the attitude we were told by the Home Office to adopt towards sentencing in those days. Now we are told something completely different.

It was fairly typical that the Minister referred to persistent offenders and to percentages and statistics in relation to offenders; but never to people, never to persons, never to those who actually become involved in crime. It is rather like a bad speech in mitigation when one wraps the person up as though he were a parcel and presents him to the judge for posting to whatever prison he thinks is right. Effective mitigation in a criminal case is to present the offender as a living and breathing person with problems that need to be addressed. The deeply mistaken and alarming attitude of this Government is to treat people convicted of crime as though they were a separate species of being in some way apart from the human race in general and the citizens of this country in particular.

The causes of crime are complex but those causes are part and parcel of the society in which we live; a society fashioned and moulded by government. Poor education, bad housing and unemployment produce inadequate and damaged people. Their problems are compounded by a selfish and acquisitive culture to the creation of which we are all party. Policies which fracture and fissure that society and deny the existence of a community inevitably lead to crime.

The first responsibility of government is to protect the public. In dealing with young offenders every effort is made to help them with non-custodial sentences, probation orders and support of all kinds. All of us who are involved in the sentencing process try to give young offenders the benefit of a chance in life. But there comes a point when a judge has to say to young people, "Well, it is tough. Whatever your background, whatever the reason for your offending, society cannot function if you attack it in this way". Prison follows. But the responsibility of government does not end with the clang of the prison door. Government must recognise not only their responsibilities to the victims of crime and to the potential victims of crime, but also to the convicted criminal. He does not forfeit his citizenship by being convicted of crime.

Two public interests strongly complement each other: first, the interest of the public in the rehabilitation of the prisoner to prevent reoffending; and, secondly, the interest of the prisoner himself in receiving the support and training which will enable him to cope with the problems of living outside prison and of playing a useful part in society. The greatest assistance to stability, we find from experience, and to good citizenship are a home, a family and a job.

Those who spend their lives in the processes of criminal justice, whether as lawyers or judges, understand these responsibilities and the balancing process between competing public interests. Daily contact with the detailed circumstances of the crimes that come for punishment provides a wealth of experience in assessing the seriousness of the particular crime—assessing its aggravating features and giving weight to mitigating circumstances—and from that a balanced judgment can be formed. I have taken some time to try to set out the basis of the independence of the judiciary and why it is charged in our constitution with this task of balancing competing interests. That responsibility and position is attacked by the Bill before the House.

Perhaps I may say a few words about various aspects of the Bill. There will necessarily be times when a mandatory life sentence is unjust. A judge will pass a sentence which he knows is wrong. It is quite interesting that in the course of the debate certain of the speakers from the Government side clearly have not understood the provisions of the Bill. The noble Baroness, Lady Young, said that the Bill is not designed for simple burglaries and that it is aimed at much more serious crime. The noble Lord, Lord Tebbit, said that the drug provisions of the Bill were not intended to catch the young offender who sells a small amount of Ecstasy or a small amount of a Class A drug. The noble Lord, Lord Renton, thought that because the goods taken in a burglary might be so insignificant that would be an exceptional circumstance which would mean that a mandatory sentence was not required. However, that is not what the Bill says. The noble Baroness, Lady Young, should realise that it is not two rapes that are concerned; two serious criminal convictions will bring the mandatory life sentence into effect.

Baroness Young

My Lords, as my remarks have been questioned, perhaps I may say to the noble Lord that while I do not pretend to be a lawyer I find it difficult to believe that, in the case that has been quoted on several occasions of someone stealing a pint of milk off the doorstep, the police would bring a prosecution, let alone that the whole matter would come to court. If that is the case there is something seriously wrong with the criminal justice system. Constantly quoting something does not help the argument against the Bill.

Lord Thomas of Gresford

My Lords, I am most grateful to the noble Baroness because she makes my case for me. There are circumstances where in the interests of justice a mandatory sentence should not be passed. I have been involved in cases on indictment where a client has been convicted of the theft of a whisky glass—and an empty whisky glass at that—worth half a crown. It should not be imagined that, where burglary is involved, the criminal justice system does not prosecute simply because the material that is taken is not valuable or expensive.

We on these Benches consider that the provisions for mandatory life sentences are dangerous. They are dangerous for the reasons given by the noble and learned Lord, Lord Donaldson of Lymington. It is undoubtedly the case that a woman who is raped and who is the sole witness of the offence that has been committed on her is in danger if the mandatory life sentence were to be imposed on the offender. What possible motive can he have for allowing her to go free to identify him at a later stage? Unfortunately, we are familiar with cases of that sort taking place. These provisions are self-defeating because nobody facing a mandatory life sentence is going to plead guilty—that is to say, the whole system will be clogged up by cases of that sort. Finally, it will be expensive, for the reasons which have been urged before your Lordships such as the increase in the prison population and the diversion of resources for that purpose.

Perhaps I may say a word about the hybrid sentence as regards mentally ill offenders. The provisions contained in those clauses dealing with that aspect of the matter put the psychiatrist in an invidious position. Your Lordships will recall that the suggestion is that there should be a hospital order coupled with a sentence of imprisonment. That would leave the psychiatrist in the position of a gaoler who determines when and at what point his patient, who may have been cured of the illness from which he suffered, is sent to prison. The effect on the relationship between the psychiatrist and the person he is treating can be imagined.

It has been said by the noble Lords, Lord Hacking, Lord Carlisle of Bucklow and Lord Belstead, all of whom speak from the Government Benches, that this is a bad Bill. What is the point that links the noble Lords? They understand and have hands-on experience of the criminal justice system. That is the link and that is why noble Lords on the Government side are opposed to this Bill and describe it in the terms that they do. We shall be putting down amendments. We shall fight this Bill all the way through. We shall also echo the noble Lord, Lord Hacking, in asking what has the Labour Opposition been doing. We hope that the noble Lord, Lord Williams of Mostyn, will maintain the position that he adopted in the earlier debate that we have heard about.

Noble Lords

Hear, hear!

Lord Thomas of Gresford

As I know only too well, it is not in his character ever to change his mind about anything. I am sure that the noble Lord will join us. We oppose this Bill.

9.48 p.m.

Lord Williams of Mostyn

My Lords, unjust sentences are a blight on any judicial system. An unjust sentence is one that offers unjustifiable leniency. That leaves the cry of the victim unheard; it leaves the grief of relatives and friends unconsoled; and in some cases it adds the insult of apparent judicial indifference to the grievous wound of crime.

I have spoken for, and written in support of, Victim Support for many years and would respectfully suggest that I require no lessons about that. An unjust sentence is also one which allows and recognises no difference in cases and therefore sentences between one crime, one criminal, and another. Putting a tick in a box is no way to sentence in crime. Life is not that simple, and neither is crime.

I am going to take a citation from one noble and learned Lord present this evening who is the object of our affection and regard. He said: It cannot be right for sentence to be passed without regard to the gravity, frequency, consequence or other circumstances of the offending. I add my gloss. I take "circumstances of the offending" to mean of the offence and the offender in question. The words are those of the noble and learned Lord, Lord Taylor of Gosforth.

Recidivism in this country is a grievous social blot. We have a recidivist government with 34 crime Bills since 1979, the last one in 1991, brought into effect in 1992—a great scheme to improve criminal justice, carefully thought out, laboriously considered and put into effect under the aegis of the noble Lord, Lord Carlisle—all thrown away. We have a recidivist Home Secretary. He will keep on doing it all over the place. He has had probation. He has had community service. I just do not know what to do with the man. I suppose that he should be subject to a curfew until after the next election or possibly there should be a mandatory five-year sentence for anyone who stands on a populist platform and tub-thumps for two consecutive Conservative Party conferences—without any exceptional circumstances.

The executive and Parliament have a legitimate interest in sentencing policy and practice. Neither has specific direct expertise. Both have a duty to listen to public opinion. I am not one of those who despises public opinion; nor do I despise any section of the press. Two curious bedfellows led to your Lordships' noble vote last week—curiously, the judiciary and all sectors of the public press. The public are entitled to have information even if your Lordships and I do not necessarily recognise it as conforming with either our prejudices or our opinions. I submit that the purpose in our constitution that Parliament ought to perform in this area is that it has the right to set indications—an indicative pattern of what sentences ought to be.

The objection to the present Bill in Clauses 1, 2 and 3 is not, in my mind, the absolute conceptual objection to minimum sentences. The objection is that they should be mandatory save in exceptional circumstances. The Government contend for a narrow definition of "exceptional circumstances". The Minister was most careful and precise when she said that "exceptional circumstances" could comprise two circumstances, the first being "very unusual" at the very least. The noble Baroness went on to emphasise that the mandatory sentence would be a matter of course in the generality of cases. On an earlier occasion I believe that it was the noble and learned Lord the Lord Chancellor who said that "exceptional circumstances" would mean occasional, quite unforeseeable circumstances.

If that is the description of the parameters within which judges have to operate, judges will have to do one of two things. They will have to be unfaithful to their oath or they will have to elide the instructions which Parliament gives them in statute. It is very important to remember that point. Contrary to the generally held view when I started at the Bar, judges do not spring perfectly formed as creatures of the Almighty. They are capable of error, just as the rest of us are. Quite often judges admit error rather more gracefully and rather more frequently than full-time politicians, of whom I am grateful to say that I am not one.

My objection to what is being forced upon the country and the judges is that the mechanism is too crude, brutalist and mechanical and does not deal with cases on an individual basis. I entirely agree with the noble Lord, Lord Campbell of Alloway. Therefore, the true remedy is to see what improvements can be made by way of retaining a reasonable judicial discretion within the framework that I describe and accept as the indicative pattern which Parliament is entitled to set down in statute.

I turn to the Young-Tebbit axis. I am pleased that both the noble Baroness and the noble Lord are here. I believe in principle that in many ways my approach is similar to theirs. One of us must go! I favour severe sentences in grave cases: terrorism; deliberate offences of violence; mindless violence in public places; financial fraud (although my eyes must be rather feeble because I do not see a reference to financial fraud in the Bill); offences against children and old people; and domestic burglaries that terrorise people in their homes, which I accept leave people's lives in ashes. Not all domestic burglaries do that. I have suffered a domestic burglary. Burglars entered my garage and took away two lawn mowers. Fortunately, they did not notice the rather more valuable wine at the back of the garage. I was irritated but not mortified. I was not in the position of the old lady who is driven from her home and can never go back because it has been desecrated. The two crimes are different in quality.

When the noble Baroness and the noble Lord raise such questions, I share their detestation of what is normally referred to as domestic burglaries as do all of the judges whom I have ever encountered. The truth is that a domestic burglary of the kind that we are discussing is not to be simplistically described or viewed as a crime against property. In essence, it is a crime against the person and a crime from which the person may never recover. We have no problem at all about the imposition of severe sentences on people who commit such crimes; nor does any preceding speaker in your Lordships' House.

The professional drug dealer is not fit to live in our society for a very long period of time. The noble Baroness put forward the proposition, with which I entirely agree, that virtually every parent of a teenage child is deeply worried about drugs. There is not a single parent in this House or outside it who does not share that, but is there a single parent who wants his or her child of 18, who perhaps is going through a bad phase of addiction and deals in £10 or £15 worth of a Class A drug, to go to prison on an automatic basis for seven years? I rather think not.

To appeal to the public has its virtues, but a populist engine which drives ill-considered legislation has no sensible place in a decent society. We want to aim at something which offers long-term protection. Long-term protection can involve long prison sentences, but I believe every judge and practitioner agrees that many people accommodate themselves to the prison regime because they are subtle enough to do so. Paedophiles are quite happy in prison if they have the company of their friends. They hand round exhibits in cases. (Incidentally, it will be recalled that I moved an amendment to make that unlawful and the Government rejected it.) The professional drug dealer settles down in prison. He has his own small fiefdom. When he comes out he is an extremely dangerous man.

We need to consider these matters with great care. We have more than one weapon with which to fight crime. No government, present or immediately prospective, will have all the right answers, but we need to adopt care in what we do. Care is missing from the structure of the Bill.

The sentencing regime for which we contend should, as many noble Lords have said, be open and transparent; but it is nonsensical to invite a High Court judge to say, "I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months". That is a perversion of the system. It will bring the whole system into disrepute. If it brings it into disrepute on that basis, it will have brought it rightly into disrepute on that basis.

It is said that no one will serve more real time—to use the rather tedious jargon. A woman at present often feels that a six-year sentence for rape is insufficient to mark the dreadful wound and the dreadful wrong done to her. We know from the Home Office, we know from the Bill, that that six-year sentence—about the minimum one would expect in rape—will have to go down to four years. I am glad that it will not be me who has to explain that to the complainant in question.

We have to look at these things with some care. Manslaughter is an offence which covers an enormously wide spectrum—the single blow outside the public house, the man falls on the pavement, and dies. On the other hand, one can have month after month after month of the cruellest treatment of a child who then dies. They are both manslaughter. They are utterly different in quality and nature, and they should be different in the penalty which they attract.

That leaves outside the questions touched on earlier by those who well know these matters, not least the judges. It leaves out the question of diminished responsibility and provocation, or corporate manslaughter at work. All those things fall within the one descriptive category of manslaughter.

There is nothing in Clause 1 which deals with the persistent paedophile. Nothing! If the defendant has preyed on children for years, and commits offence after offence after offence, so long as it is not within the category of having sexual intercourse with a girl under 13—very often they are not—then this will not catch that man. There is something deeply wrong about those proposals. They attempt to meet public disquiet, and they will not be able to perform that function.

There is the question of the assessments for these new bases of release. The noble Lord, Lord Belstead, said—who knows better than he?—that that will involve 25, 000 assessments per year. There are not the resources or expertise to carry that out.

My noble friend Lord McIntosh of Haringey rightly pointed out that he is alert and astute to the worries and fears mentioned by the noble Baroness, Lady O'Cathain, about women being afraid to go out at night. I agree. No proper society can tolerate that. But one of the things that people out and about on their reasonable occasions at night fear is street crime and mugging. My noble friend Lord McIntosh of Haringey perceptively and rightly pointed out that they are not covered by the Bill.

I shall not be long, because we are coming to the end of a long evening. But one of the things we need to do is to ask ourselves what is the prime function of a government in this connection. It is not the prime function of a government merely to try to get re-elected on any basis whatsoever. It is the function of a government—this has been a failed function for this Government over the past many years—to provide a calm and orderly life for their citizens so far as they may. That means that crime is discouraged and prevented; that crime is detected; that criminals are convicted. That is not happening.

The conviction rate in rape has been dropping substantially these past few years. Criminals must be rightly sentenced and properly dealt with in prison. It is a dereliction of duty to put people in prison for a long time without at least making an effort as regards education, rehabilitation and training in skills for possible employment, although that is difficult enough.

A reasonable basis on which to approach such matters is always to suspect announcements made at party conferences. I have not described which party conferences I have in mind, but it may be a rule of general present application.

This has been an extraordinary debate. The names that I am about to mention are extraordinary. The noble and learned Lord, Lord Bingham; the noble and learned Lord, Lord Taylor, whose speech I reread with great profit and pleasure; the noble Lord, Lord Carlisle, whose recent James Kingham Memorial Lecture might usefully be studied by Home Office Ministers; the noble Lord, Lord Belstead; the noble and learned Lord, Lord Donaldson of Lymington; and the noble and learned Lord, Lord Ackner, with his proposal, which I believe to be soundly based, that in the interests of public safety and security we must look at the Butler proposals again.

They were all remarkable contributors to tonight's discussions. To any government such men are dangerous. They think, they analyse and they are fearless. Tonight they have blown a most enormous hole in the flagship vessel which the Minister has been trying to launch before us.

10.7 p.m.

Baroness Blatch

My Lords, first, I am delighted to see the noble and learned Lord, Lord Taylor of Gosforth, who has sat through tonight's debate with enormous patience. I am grateful that he has been present because I know of the interest that he takes in the debate.

It has been an extremely lively and interesting debate. The Crime (Sentences) Bill contains many important and in some respects radical proposals. It is not surprising that a range of strongly held and sincere views have been expressed about them. I am grateful to my many noble friends who have spoken so eloquently in support of the Government's proposals. Perhaps I may move straight on to some of the points made during the debate. If noble Lords will forgive me, I will, as has been characteristic of me in past times, romp through as much as I can in a relatively short time.

The noble Lord, Lord Thomas of Gresford, criticised me for not referring to people. The number of offenders referred to by me are people. They represent great pain, great distress and much grief to another group of real people: the victims. Nothing that I have said takes the humanity out of this debate. It is our concern for people, especially innocent people, that brings this Bill before the House today.

The noble Lord, Lord Thomas, was rather patronising to my noble friends who spoke in support of the Bill because he accused them of speaking from—the noble Earl, Lord Russell, may find my comments amusing but his noble friend accused them of speaking from a point of ignorance. The collective expertise—

Earl Russell

My Lords—

Baroness Blatch

My Lords, I do not intend to take interruptions. It is very late and there are many stages of the Bill during which noble Lords can say everything they wish.

The collective experience of my noble friends Lady Young, Lord Renton, Lady Seccombe, Lady Anelay, Lord Taylor of Warwick, Lord Blake, Lady O'Cathain and my noble friend Lord Tebbit, matches the expertise of many other noble Lords in this House.

The noble Lord, Lord McIntosh, asked where was the provision in the Bill for guilty pleas. The provision is in Schedule 4, paragraph 17, page 63. That paragraph amends Section 48 of the Criminal Justice and Public Order Act 1994. He also asked what the Government have done about crime. First, in recent years we have developed and implemented a co-ordinated strategy on crime. It is set out in detail in the White Paper, Protecting the Public.

That strategy has four main strands: to do everything possible to prevent crime; to ensure that the police have the powers that they need to catch criminals; to empower the courts; and to improve the procedures of the courts to ensure that they will also have the powers that they need to deal with those who have committed crime and to deal with them effectively. To that end, we have introduced major new legislation—such as, the Criminal Justice and Public Order Act 1994—provided substantial additional funds for the police, pioneered new initiatives on crime prevention and much else besides. The Bill also addresses one other element of our strategy which relates to the sentencing of convicted offenders. We have pursued, and will continue to pursue, the various other strands of our strategy on crime.

Over the past three years, crime has fallen by 10 per cent.—by 553, 300 crimes. With that total, burglary fell by 197, 000, down by 14 per cent. Thefts fell by 411, 000, down by 14 per cent.; theft of motor vehicles fell by 102, 000, down by 17 per cent.; while fraud and forgery fell by 33, 500, down by 20 per cent. However, violent crime rose by 15 per cent. Within those figures, violent crime and offences against the person also rose by 12 per cent. and sexual offences rose by 3 per cent. Robbery was up by 28 per cent. Therefore, the Bill is necessary.

The noble Lord, Lord Rodgers of Quarry Bank, asked many questions about the costs of the Bill. I cannot be precise in answering those specific questions because it depends upon a number of factors including, for example, the cost of contracts negotiated with the private sector to build and manage new prisons and exactly when they come on stream. That is why we have provided upper and lower cost estimates and I stand by them. As regards the other point raised by the noble Lord, 8, 600 new places are also needed by March 2000 to keep pace with the projected increase in the prison population from around 57, 000 or 58, 000 at present to 66, 000 in 1999 and the turn of the century. The Prison Service has been provided with money for that. Indeed, 22 new prisons have been built and opened since 1979, and some 20, 000 new places provided. The building programme will therefore be on a comparable programme to the prison building programme of the 1980s. But, with modern designs, fast-track building techniques and private sector involvement prisons can now be built much more quickly, securely and more cost effectively.

Much has been said about research on the subject. It has been argued that the research of Roger Hood shows that the public will be less well protected under the provisions of the Bill. I disagree. No system is perfect. To my mind, Roger Hood's research clearly illustrates that the present system is not perfect. All those prisoners about whom the Parole Board expressed concern would have been released at the two thirds point of sentence and, I should point out to my noble friend Lord Belstead, would have been supervised for a period equivalent to only 8 per cent. of the sentence. Moreover, under the Bill's proposals, 10 per cent. of them would be subject to the automatic life sentence. Others who were sex offenders could be subject to up to 10 years' supervision on release while others would be subject to a period of supervision equal to 25 per cent. of sentence. The public will be better protected, not worse, under the Bill's provisions.

The noble Lord, Lord McIntosh, the noble and learned Lord, Lord Bingham, and my noble friend Lord Belstead, were concerned about the abolition of parole. I do not believe that it will be such a problem. We should remember that of the majority of those who go to prison under the present arrangements, about 90 per cent. are serving sentences of under four years and are not subject to parole. Those prisoners will be released automatically after having served only half of their sentence. Of those who are subject to parole, fewer than half are denied parole, and if denied parole, prisoners are subject on release to a period of supervision equivalent, as I said, to only 8 per cent. of the sentence. Under the Bill's provisions, all prisoners will serve at least five sixths of their sentence, and they may be held for the full sentence. On release, if their sentence is longer than 12 months, they will be subject to a period of supervision equal to 25 per cent. of the sentence.

I have been fascinated by those who have opposed the Bill. They have argued both that the Bill would, at the end of the day, not increase time served, and at the same time that it would cause further overcrowding in prisons. You cannot have it both ways.

The noble Lord, Lord McIntosh, and others were concerned about mandatory penalties and exceptional circumstances. It will be for the courts to determine what constitutes exceptional circumstances, taking account of all the factors of a particular case. It would be neither feasible nor sensible for Parliament to attempt to do so. No list could ever be exhaustive and in any event exceptional circumstances may well arise from a combination of factors rather than one particular factor. The noble and learned Lord the Lord Chief Justice has said that exceptional circumstances mean those that are very unusual at the very least. The words I mentioned in my opening speech were those of the noble and learned Lord the Lord Chief Justice and not my own. What I said was that I agreed with those words.

I have no doubt that the Court of Appeal will take an early opportunity to issue guidance and that it will do so responsibly. A test of unjust in all the circumstances would be too wide. The noble and learned Lord the Lord Chief Justice has said this would allow the court, to avoid passing a mandatory sentence in any case where he considered it simply anomalous to do so". That comes pretty close to saying that the judge could set aside the mandatory penalty simply because he would otherwise have imposed a different sentence. That would make a nonsense of the whole concept of mandatory penalties. Persistent offenders must know that the mandatory penalty will be imposed as a matter of course in the generality of cases.

On the issue of the Attorney-General's right of reference—this was raised by the noble and learned Lord, Lord Bingham—the Attorney-General can refer cases to the Court of Appeal only if they fall within the narrow definition of being unduly lenient compared to the sentence levels currently imposed in the generality of cases. Long, determinate sentences are frequently imposed on serious, violent and sex offenders, which cannot therefore be challenged as unduly lenient. However, at the end of that sentence—this is the point—the offender must be released, irrespective of the risk of reoffending. The purpose of the automatic life sentence is to ensure that serious, violent or sex offenders are not released until it is safe to do so, and then remain on life-long supervision. No determinate sentence, however long, can provide that protection.

It was said that only 3 per cent. of recorded crime results in convictions. Comparisons such as this should be treated with great caution. I shall explain why. A burglar who is convicted of one offence may ask for another 50 to be taken into account, but for statistical purposes he has been convicted only of a single offence. A fraudster who has committed numerous offences of, for example, passing hundreds of forged cheques, may be charged only with a single specimen offence. What the police have discovered, time and again, is that by successfully targeting a small number of persistent offenders, they can achieve a real reduction in crime rates. Perhaps that, more than anything else, demonstrates why comparisons between recorded crime figures and convictions can be misleading.

The noble and learned Lord, Lord Bingham of Cornhill, raised another point when he said it was necessary to increase the prison population by 25 per cent. to reflect a 1 per cent. decrease in recorded crime. He quoted some Home Office research on that point. That research was based on an across the board, untargeted increase in the prison population. By contrast, our proposals are carefully targeted at persistent offenders and can therefore expect to have a much more significant effect on prison numbers.

Supporters of the present sentencing system have made much of the parole period and the at risk period of a sentence. I asked particularly for information on the number of offenders who are recalled during parole and at risk periods. The figure has been falling all the time. In 1992, it was 983 prisoners; that is 13 per cent. of all long term prisoners. In 1993, the figure was 773, only 12 per cent. In 1994, the figure was only 300, that is 10 per cent. In 1995 it was 185, that is 10 per cent. The non-parole period that a person spends out of prison is recalled only on the basis of his committing another crime, whereas under our proposals a breach of supervision condition would be an arrestable offence for which an offender will be returned to court and possibly to prison.

My noble friend Lord Tebbit asked how often the maximum penalty for domestic burglary—that is 14 years—had been used. Taking a typical five-week period in a sample of 949 offenders at the Crown Court convicted of burglary in a dwelling the maximum penalty of 14 years' imprisonment was not imposed for any offender including those convicted for a third or more domestic burglary.

I asked for more information on the same subject. I asked whether we had news of anyone who had been given a 14-year sentence. With regard to sentences between 10 and 14 years, in the past five years only two domestic burglars have received sentences of more than 10 years. The figure in 1988 was two, in 1989 two, in 1990 one, in 1991 no one, in 1992 no one, in 1993 one, in 1994 one, and in 1995 no one. That is an interesting point for the noble and learned Lord, Lord Donaldson, to note. Perhaps I may complete that set of statistics for the noble and learned Lord. Of the 4, 400 offenders convicted of domestic burglary by the Crown Court in 1995, 179 received sentences of over three years. That is 4 per cent. of them. Only 18 out of 4, 400 were sentenced to more than five years. That is less than half of 1 per cent.

The noble and learned Lord, Lord Donaldson, referred to children aged between 10 and 14 who were convicted of burglary. The Bill provides that convictions of children aged 10 to 144 are to be counted as qualifying convictions. That is certainly true. But it is not the full story. Of offenders aged 10 to 14, 86 per cent. are cautioned rather than convicted. Only serious or persistent offenders are likely to be prosecuted, and a child aged 10 to 14 cannot be convicted of a criminal offence unless the prosecution can prove that he knew that what he was doing was seriously wrong. In those rare circumstances I cannot see why convictions of a child should not count as a qualifying offence.

My noble friend Lady Young asked what constitutes a serious offence. Perhaps I may cite some. They include attempted murder, conspiracy to commit murder, incitement to murder, manslaughter, serious wounding, rape or attempted rape, armed robbery, possession of a firearm with intent to injure, use of a firearm to resist arrest, and carrying a firearm with criminal intent.

My noble friend Lord Carlisle referred to the White Paper estimates of the effect on the prison population. Nowhere in the White Paper does it say that the honesty in sentencing proposals will have no impact on the prison population. We have always accepted that there will be some impact. As I said, it would be unrealistic to expect courts to take account precisely, in setting sentences, of the effect for an individual prisoner of the changes in early release arrangements in the Bill. The estimates in the White Paper and in the Financial Memorandum to the Bill of the effects of the Bill's proposals on the prison population therefore take account of honesty of sentencing.

My noble friend Lord Carlisle asked what is more honest about the proposals in the Bill. The sentence announced by the court will much more closely match the sentence actually served. The judge or magistrate will make clear at the point of sentence the remand time that has been served and is to be credited against the sentence. The public, the victim and the offender will know that the offender will be released early only if he behaves well and has earned early release; and the public, the victim and the offender will know that the offender will be supervised for a period equal to 25 per cent. of the sentence if serving a sentence of 12 months or more at whatever point in his sentence he is released.

The noble and learned Lord, Lord Woolf, the noble Lord, Lord McIntosh, and others referred to the United States experience. I must make clear that the proposals in the Bill for mandatory penalties are quite different. Anyone who pretends otherwise is simply wrong. They are targeted at particular offenders, the most serious and most persistent. The Californian three strokes policy applies to a much wider range of offences and requires sentences of 25 years to life for burglars, thieves and similar offenders. To noble and learned Lords who hold that view I cite the example of a friend of mine who was recently in Los Angeles, as I was myself, visiting those who work in the criminal justice system. They said: "If only we could have done it in the way you plan to do it in England, we might have got it right". So they have something to learn from us.

The right reverend Prelate the Bishop of Oxford claimed that no distinction was made between a serious drug dealer and a low-level drug dealer, or a very serious burglar and a low-level persistent burglar. That is simply not so. The proposals set out that, where a person is convicted not once, but twice, and then again, of burglary or drug dealing, then the minimum sentence should apply for those low-level offences; but more serious cases, whether committed for a first, second or third time, will command longer and tougher sentences.

The noble Lord, Lord Hutchinson of Lullington, referred to the Women Against Rape document. I have read the document myself. He also talked about women in prison for fine default and television licence evasion. As I said in my opening remarks, the number of offenders in prison for fine default has more than halved in the past 12 months. As regards women, on 31st December last year, the most recent date for which figures are available, a total of six women were in prison for fine default; none of those cases related to television licences. The noble Lord also mentioned overcrowding in prison. We have a good record on that. The Prison Service has ended the practice of putting three people in a cell designed for one. In 1987-88, 5, 000 were held in that way. In April 1996 the practice of slopping out was ended. The number of prisoners held two to a cell designed for one has also been considerably reduced.

The noble and learned Lord, Lord Ackner, referred to the Butler Report and reviewable sentences. The proposal for an indeterminate reviewable sentence differs from the life sentence in only one material respect; namely, there is no minimum period to be served for retribution and deterrence. However, we believe that the courts should continue to have the power to set the minimum tariff to be served. Therefore there is nothing to be gained by an indeterminate reviewable sentence, and something would be lost.

The noble and learned Lord also referred to Clause 22, and said that it would cause confusion when an offender is sentenced on the same occasion for an offence committed before commencement of the Bill and one committed after commencement. A good deal has been said about the potential difficulties of requiring courts to take account of the changes in early release arrangements. There is nothing new in the idea. When release arrangements were changed in the Criminal Justice Act 1991, the then Lord Chief Justice issued a practice direction giving guidance on the way in which the courts should take account of that change in sentencing.

Many people have argued that all that is needed is for the courts to explain the position to a prisoner in court in a way that is clear to the prisoner, and not only to the prisoner but also the public. For the purpose of the point I wish to make, I invite noble Lords to imagine a courtroom where sentence is being passed—under the present system, a short-term sentence. The sentence is three years; the prisoner is entitled to release after one and a half years; he will be supervised up to the point when three-quarters of the sentence has been served; and he will be at risk of additional punishment if he commits an additional offence within three years of the sentence.

Now let us take another example under the present system—a long-term prison sentence. The sentence is six years; the prisoner is eligible for release after three years, but that is subject to a decision by the Parole Board, which will consider the case. A prisoner is entitled to release after four years; is supervised until the four-and-a-half year point in the sentence; he is at risk until six years.

I ask noble Lords to project their minds forward to the courtroom under the proposals set out in the Bill. Whatever the sentence, the prisoner will serve it all, save for earned early release at the rate of 12 days per two months. He will be supervised for an additional 25 per cent. of the sentence. I invite noble Lords to accept that the proposals in the Bill are straightforward.

My noble friend Lord Belstead asked whether the scheme will not be time-consuming and cumbersome in relation to determining who shall have earned early release. The Prison Service already has experience of regular assessment of prisoners' behaviour through operating the earned privileges scheme, which is working very well in our prisons. We intend to build on this experience and to determine in more detail the operation of the earned early release scheme in consultation with prison governors.

The noble and learned Lord, Lord Archer of Sandwell, made the most extraordinary statement. He talked about reflecting the seriousness of the facts: whether or not the occupants were at home, whether or not they were terrified. How can such a judgment be made? It might be fortuitous for the burglar that the home was not occupied at the time of the burglary. He will not know that as he enters the premises. However, the intention to burgle remains the same, the act of burgling is just as serious. The idea is strange that sentences could reflect the fact that because the occupants were not at home to be frightened at the time of the burglary, somehow the sentence could be lighter.

I know what has also been said about "only stealing a bottle of milk". I remind noble Lords that it may be just a bottle of milk and the first time. We have been burgled a number of times and in the first case just a pair of sheets were taken. However, some people are daily harassed by that kind of minor burgling. We are not talking about someone who does it once but twice and then again a third time—for instance, an old lady living alone taunted by that kind of daily stealing of small things, whether a loaf or a pint of milk. I argue that that is as serious for such people as for anyone else. We should not have a tolerance level which says that simply because it is a pint of milk we should ignore it.

My noble friend Lord Taylor of Warwick expressed concern about the position of an offender who, for example, has offered valuable assistance to the police in tracking down other criminals, perhaps a drug ring. The judge may give the reason in open court for setting aside a mandatory sentence, using the provision of exceptional circumstances. I hope my noble friend will accept that that is not without difficulties but I wish to reflect on the points he made.

The noble Earl, Lord Mar and Kellie, referred to curfews in a thoughtful speech. I agreed with much of what he said but curfew orders can be either self-standing or combined with measures: for example, drug or alcohol rehabilitation programmes. The noble and learned Lord, Lord Hope of Craighead, was the only person who referred to the Scottish dimension, what I call the "kilting" of the Bill. The offences set out in Clause 1 of the Crime and Punishment (Scotland) Bill are perhaps more similar to those listed in Clause 1(5) than the noble and learned Lord acknowledges. For example, in England the crime of rape includes male rape; in practice, I believe the equivalent in Scotland is sodomy, where one party does not consent. The distinction between the lists exists because of differences in the definitions of similar crimes north and south of the Border. The differences may not be so significant in practical application as the noble and learned Lord, Lord Hope, suggested. However, the detailed points that he raised will be carefully considered and can no doubt be dealt with in greater detail if an amendment is put down to Clause 1(6). It will fall to be dealt with at later stages of the Bill.

My noble friend Lord Hacking referred to mentally disordered offenders. Courts will retain discretion to impose a hospital order on mentally disordered offenders convicted of repeat offences under Clauses 2 and 3. However, the offences covered by Clause 1 are so serious that only the automatic life sentence with hospital direction, if the offender is psychopathically disordered, will provide the necessary public protection. I can say to the noble Lord, Lord Dubs, that there is a good deal of the flexibility that he calls for in the measure.

I say to the noble Lord, Lord Hacking, that I must admit to some frustration, having listened to the range of burglary activities from relatively minor burglaries to the most serious. As I said, that can be reflected in the application of the minimum sentence up to the maximum.

The noble Lord, Lord Thomas of Gresford, referred to Clause 1(2). He said that when a life sentence was given in court, it could confuse everyone. However, it is not given in isolation. A life sentence will be given if the sentence is qualified, but it will be accompanied by the judge determining the tariff that will be served before the Parole Board considers the safety of releasing the offender, and is satisfied that he presents no risk to the public, before approving the release. There is nothing dishonest in that.

As my final comment to noble Lords opposite, I have to say that I listened very carefully to what was said by all noble Lords opposite and I shall read it very carefully. But from all that has been said, I am hard pressed to believe that they are supporting anything within the Bill.

I want to return finally to the main themes of the Bill. The public rightly expect protection from serious, dangerous and persistent offenders. The mandatory penalties which are at the heart of the Bill are designed to reinforce that protection. They are carefully targeted and narrowly focused on crimes which cause particular harm and distress: serious violent and sex offences, domestic burglary and dealing in hard drugs. We believe that urgent action is required to provide a real deterrent to those who commit such offences; to punish severely those who continue to offend regardless; and, most of all, to protect the public from their activities.

Our proposals for honesty in sentencing will introduce greater transparency into the sentencing process and ensure that supervision after release is properly targeted on the most serious offenders. The Bill also contains a range of important new measures relating to community penalties, mentally disordered offenders and juveniles. I firmly believe that the package of proposals contained in the Bill will make a major contribution to the protection of the public and to public confidence in the criminal justice system. I commend the Bill to your Lordships.

On Question, Bill read a second time, and committed to a Committee of the Whole House.