Lords Sitting of 4 March 1997

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

Nuclear Test Veterans
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
How they propose to respond to the finding of the European Commission of Human Rights that the convention had been violated in relation to nuclear test veterans and that just satisfaction should be given by the Government.
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): My Lords, the Government intend to contest before the European Court of Human Rights the Commission's conclusion that in the case of McGinley and EE v. UK there has been a breach of the European Convention on Human Rights.
Lord Ashley of Stoke: My Lords, it is entirely a matter for the Government if they want to appeal and carry on such a bitter fight with our veterans after 40 years. But is there not now a question mark over the methods they have been using? Will the Minister confirm that the Commission seriously questioned the honesty and integrity of the Government and said that their conduct was,
"reluctant and lacking in candour"?
Will the Minister comment on that? Will he also comment on a statement by the Commission that the United States Government have paid 25 million US dollars to personnel who were hundreds of miles from the epicentre of the detonations in striking contrast to the treatment of our veterans who were very much nearer?
Earl Howe: My Lords, we are naturally disappointed that the Commission considered some of our responses lacking in candour. Our intention was to be open and straightforward. Clearly, our written answers failed to deal convincingly with certain complex issues, particularly the difficulties in confirming the existence and whereabouts of records so many years later. We take that seriously. We acknowledge the criticism and will seek to provide clear answers to the Court on all the points on which we were unable to satisfy the Commission. With regard to the noble Lord's last question, the United States' decision to pay compensation to the Marshall Islanders is a matter for the United States Government. It is not a matter on which I feel I can comment.
Lord Williams of Elvel: My Lords, does the noble Earl accept that this is a long-standing problem and that the procedure has caused great distress and proved
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costly to those involved? Would it not be preferable to have the European Convention on Human Rights established into UK law so that the procedure can be shortened?
Earl Howe: My Lords, the Government have made clear on many occasions that they consider the incorporation of the European Convention on Human Rights or the introduction of a Bill of Rights to be neither necessary nor desirable. Human rights are already very well safeguarded in this country. Our rights and freedoms are inherent in a legal system which protects them, as does Parliament. It is our view that the course suggested by the noble Lord would not provide significantly greater protection than the existing safeguards.
Lord Williams of Elvel: My Lords, in that case, is the noble Earl saying that people who feel themselves disadvantaged under UK law will still have to go through the long, costly and distressing process of appealing through the European Commission of Human Rights to the Court of Human Rights? Is that the Government's position?
Earl Howe: My Lords, the other side of the argument is that such incorporation or the introduction of a justiciable Bill of Rights would also require our courts to make political judgments about a wide range of matters which at present are determined by our elected and democratically accountable Parliament. Those judgments are the proper functions of Parliament, not the courts. That is why we do not agree with the proposals of the party opposite.
Lord Ashley of Stoke: My Lords, will the Minister comment on the Commission's statement that there is undisputed evidence of steps by our Government to avoid the admission of incriminating evidence against themselves? Can he also comment on the Commission's statement that incriminating medical records went missing when in the custody of the Government? If the Government really intend to go on fighting in this way against our ex-servicemen, can the Minister at least make it a clean fight?
Earl Howe: My Lords, we believe that the ex-servicemen involved have a fair and proper basis on which to approach the pensions appeal tribunal, which is what the case is all about. I have already said that we very much regret the criticism of the Government. It was certainly not our intention to be evasive in any way. We believe that the right course is for us to defend the position as we see it. We believe that there is sufficient and ample information already in the public domain to enable those veterans to take their case properly to the tribunal.
Lord Molloy: My Lords, will the Minister consider holding discussions with the Royal British Legion apropos this matter? That body is very much concerned, as I am, about Britain's ex-servicemen and women who have always had a good hearing in this House.
Earl Howe: My Lords, I am sure that the whole House shares the respect that the noble Lord, Lord

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Molloy, has for the Royal British Legion and the excellent work that it does. I shall certainly consider the proposal that he puts to me.
The Countess of Mar: My Lords, does the Minister appreciate that men and women who volunteer to serve our country and who protect us in time of war expect to be protected by the Ministry of Defence when something goes wrong? We have the examples of the people referred to in the Question, the Porton Down volunteers and now the Gulf veterans. Will the Minister look again at the problems suffered by these people who have been made ill by their service? They are being told that they must go through the courts in order to get assistance.
Earl Howe: My Lords, the noble Countess is absolutely wrong in what she has just implied. The cases of the Gulf War veterans and the nuclear test veterans are poles apart. As to the latter, at one time there was a hypothesis of cause and effect, namely, that their presence in the vicinity of detonations caused ill health. We commissioned research into that question. It is now clear that there were no long-term effects on life expectancy. As for the Gulf War veterans who have suffered ill health, the Government retain an open mind. We have commissioned research, as I have informed the House on previous occasions. I do not believe that the noble Countess's comparison is in any way valid.
Lord Hailsham of Saint Marylebone: My Lords, since the matter is before an appeal tribunal, is it not better to leave the matter to that tribunal to express a view upon it?
Earl Howe: My Lords, my noble and learned friend is absolutely right. The Commission has referred the matter to the European Court of Human Rights. We must await its verdict before deciding the way forward.

EU Directives and Regulations
2.45 p.m.
Lord Renton Lord Renton asked Her Majesty's Government:
How many EU directives and regulations respectively are now binding on the United Kingdom.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, I regret that there is no comprehensive list collated centrally. However, the European Commission CELEX database, which is available in the Library of the House, contains some of the information needed.
Lord Renton: My Lords, while thanking my noble friend for her remarkable Answer, I am sorry to say that it does not deal with the question of the vast number of directives and regulations that are issued by the European Union and are binding upon this country. Nevertheless, I thank my noble and learned friend the
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Lord Chancellor for an encouraging letter that I have just received from him affirming the view that there should be less and better legislation on the part of the European Union. Will the Government point out at the forthcoming meetings of the IGC that attempted harmonisation results in the passing of unnecessary laws which are confusing and that it is difficult to reach an agreement between 15 nations with different systems and 11 different languages if we want sensible laws?
Baroness Chalker of Wallasey: My Lords, I agree with much of what my noble friend has just said. The Government's approach to regulation is best summed up as: fewer, better and simpler rules. However, we must take account of the purpose of those rules. When the Foreign Secretary spoke yesterday he said that it was an illusion to believe that one could construct a single market for six countries, let alone 15, without some supra-national rules and institutions to enforce them. I fully agree with my noble friend that, despite the fall in the number of proposals for primary legislation from 61 in 1990 to 19 in the pipeline this year, there is a tendency for increased secondary legislation. Much of that secondary legislation is related to CAP management. I am glad to say that the Commission agrees with us that the CAP must be simplified.
Lord Stoddart of Swindon: My Lords, is the noble Baroness aware that I and, I believe, many others are very surprised that there is no record of the legislation that is passed by the European Union? Does she agree that it runs into tens of thousands of pages, many of which are unreadable and incomprehensible? Would it not be better for the House to make progress with the Bill presented to this House on 31st January by the noble Lord, Lord Pearson, which obtained a Second Reading to amend the European Communities Act by the deletion of Sections 2 and 3? In that event, would we not be spared many, if not all, of these sometimes ridiculous regulations?
Baroness Chalker of Wallasey: My Lords, one of the problems is that there is no single record but a number of records. Those records relate to many regulations that have been overtaken in the process of updating. The whole purpose of improving the quality of regulation is to make sure that it is kept to a minimum—as I said to my noble friend, the approach of the Government is that there should be fewer, better and simpler regulations—and that the burden of regulation which damages competitiveness is as light as possible. It is for that reason that the UK, with its experience of being as deregulated as any country in Europe, is pushing the SLIM initiative which Commissioner Monti brought forward to simplify the legislation of the internal market. That is a serious commitment to administrative simplification. Referring to my noble friend's Bill, I believe that the views of the whole House on that matter may be slightly different from those expressed at Second Reading.
Lord Pearson of Rannoch: My Lords, can my noble friend reveal, to the nearest thousand or so, how many bureaucrats in Brussels have little else to do but to

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concoct these pernicious laws? Can she say whether their number has increased or decreased over recent years? Can she give us any prospect that redundancy is in store for any of them?
Baroness Chalker of Wallasey: My Lords, I wish that I could give my noble friend the answer that he seeks to the question. I cannot, because no bureaucrat in Brussels, as he puts it, is concerned solely with producing regulations. Regulations are part of the way in which the EU works. There has been no greater advocate in Brussels of budgetary rigour and the need to control the running costs of the European institutions than the UK. The good thing is that a number of member states have now joined us in that. My noble friend should be pleased that we are making progress and that we are not only reducing primary legislation but are also simplifying and improving secondary legislation.
Lord Thomson of Monifieth: My Lords, is the Minister aware that the total number of civil servants in the European Commission is considerably less than those in the Scottish Office? Does she agree that if the aim is to have less and simpler legislation, charity might begin at home for the Government?
Baroness Chalker of Wallasey: My Lords, I wondered how long it would be before someone reminded us that we have fewer civil servants in the European Commission than in the Scottish Office. However, we have of course been reducing the number of civil servants in British government service over the years, and making them more efficient. If we could take to Brussels some of the efficiency that the UK Civil Service has achieved, I would be even happier.
Lord Campbell of Croy: My Lords, is my noble friend aware that the reference to the Scottish Office is somewhat of a canard, because Civil Service numbers given for the Scottish Office include all the prison staff in the prisons and all the nurses in Carstairs Hospital, the equivalent of Broadmoor, for some reason, which come to about 14,000, whereas the number of civil servants who work in the Scottish Office, as we know it, is only 7,000.
Baroness Chalker of Wallasey: My Lords, try as I might, I am not eloquent on Scottish matters. I leave the explanation of the figures to my noble friend.
Lord Bruce of Donington: My Lords, is the Minister aware that in the seven days ending 1st March there arrived from the Commission to the UK six draft directives, three draft decisions, nine draft regulations, and a miscellany of reports, opinions, green papers and other communications, totalling 15, being 33 altogether? Is the Minister sure that the figures that were given to her, presumably as up to date, are correct?
Baroness Chalker of Wallasey: My Lords, yes, because in fact we are talking about apples and pears, if I may put it like that. I was giving the figures for primary legislation, and explaining that the secondary
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legislation is being improved, and is therefore superseding old secondary legislation. Much of what comes forward is a result of the single market for which the UK was fundamental in pushing. That single market has achieved the sort of liberalisation which has helped to put this country so much ahead in production and in receiving investment for overseas. The reality is simple. We cannot have a single market without an obligation to play by its rules. That means accepting some decisions which we would rather not have. It means having rules to ensure that everyone plays on a level playing field.

EU Common Foreign and Security Policy
2.55 p.m.
Lord Hooson Lord Hooson asked Her Majesty's Government:
What recommendations reflecting government policy they will make to the European Union to ensure that the Community has a planned, coherent approach in its foreign relations and whether they envisage that the common foreign and security policy developed in the Treaty on European Union will be updated at the next Inter-Governmental Conference.
Baroness Chalker of Wallasey: My Lords, we proposed a range of practical measures in the Inter-Governmental Conference, including better planning and representation for the common foreign and security policy. If adopted, these would foster a better co-ordinated EU external policy.
Lord Hooson: My Lords, is the Minister satisfied with the progress made on developing a common, coherent approach to foreign affairs, particularly bearing in mind the great problems, for example, of trans-Atlantic relations upon which the Western world will so depend with regard to our relations with Eastern Europe? Is it not necessary for the arrangements entered into at Maastricht to be updated at the next international conference?
Baroness Chalker of Wallasey: My Lords, achieving coherence in Community policy requires a great deal of attention. I spent the whole of Saturday morning discussing coherence in development policy with my 14 colleagues from the other member states. Even in that small area it requires greater attention than it has had in the past. The interesting thing in the whole of the work on a common foreign and security policy is that it must be a policy which is agreed by consensus. That view will remain. It is right, too, that we should seek to work at that common foreign and security policy in the political committee which is now working very well. We have a great deal more work to do. I do not believe that that coherent approach requires any change to the Maastricht Treaty, because Article C of that treaty already makes the Council and the Commission responsible for ensuring consistency on EU external activities.
Lord Richard: My Lords, is the Minister aware that she should not be surprised that achieving co-operation

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and co-ordination takes time? That is inevitable when dealing with a number of different countries. However, does she agree that the basis of increasing co-ordination and co-operation in foreign policy is an increased appreciation of just how many interests those countries have in common? Therefore it is terribly important, since we have so many interests in common, that those interests should be fostered, and that our view should be put across in the most coherent and pointed way. Does she agree that the best way to do that is to do it in common rather than individually, when indeed one can be picked off one by one?
Baroness Chalker of Wallasey: My Lords, the one reason why we felt it to be important to have a common foreign and security policy was the many shared interests in a number of different fields of European co-operation. We have had shared interests for a very long time. They have now been brought together, and the political committee seeks to help that happen with greater ease and frequency; but it will not just be the political committee, there are the other committees. In my field there is the Africa Working Group which seeks to ensure that we have a proper co-ordinated approach to major problems such as the Great Lakes. It is because we have shared interests and a common wish for peace and stability in those countries that we should be working together, but it should remain a second pillar and not as part of the Commission.
Lord Monson: My Lords, will the Minister confirm the accuracy or otherwise of a report in The Times a few days ago which revealed that Greece was threatening to veto the entry into the EU of Poland, Hungary, the Czech Republic, and so on, if EU representatives consulted the Turkish Cypriots? If that is true, does it not constitute disgraceful blackmail and demonstrate the dangers of a common foreign and security policy which could well suck us into a conflict between Greece and Turkey?
Baroness Chalker of Wallasey: My Lords, I, for one do not believe everything I read in the newspapers, and certainly not everything I read in The Times these days. We are used to Turkey on some occasions, Greece on other occasions, and other countries on further occasions, making bellicose statements. The discussion that takes place on a common foreign and security policy is a discussion which can result in action by consensus only, and that is how it should remain.
Lord Beloff: My Lords, does the Minister agree that while common interests no doubt exist among the 15 countries of the European Union, they each have their own particular aims, objectives and, indeed, appreciation of what is going on in the rest of the world? Is it not flying in the face of reason to imagine that those differences will disappear suddenly because people utter warm words about European unity?
Baroness Chalker of Wallasey: My Lords, it is absolutely right, natural, and will continue to be so, that
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each nation state will have its own appreciation but on occasions we find that as regards a great deal of the analysis, there is more that unites us than divides us. It may be that some nation states have a greater capacity to analyse certain problems in certain parts of the world. It is sensible that that should be shared. It is sensible also that we should try to proceed together wherever we can, because there is no doubt that in that way we have been able to make beneficial changes in overall approaches to some of the world's worst problems which often take the lives of many hundreds of thousands of people.
Lord Avebury: My Lords, does the Minister agree that there are serious differences of interpretation among the member states concerning the European Union guidelines on arms sales? Does she not consider that it is necessary for the European Union, in addition to developing those agreements, to consider also methods of monitoring and implementation?
Baroness Chalker of Wallasey: My Lords, the noble Lord's question is rather wide of the main Question. But I should say that the European Union is not a defence organisation. It is an organisation of the three pillars. We are well aware that common foreign and security policy is part of the second pillar which is agreed by the member states of the European Union and not by the Commission. Whether in relation to arms or any other aspect of defence policy, I do not believe that it would be right to go beyond that. I certainly believe that we have no need for further treaty language on those matters.

Salisbury Bypass Proposal
3.2 p.m.
Lord Marlesford Lord Marlesford asked Her Majesty's Government:
Whether they will consider fresh alternatives for the Salisbury bypass in view of the recent submission of the Countryside Commission that "no form of mitigation would be sufficient to offset the significant damage to a landscape of heritage importance" which would be caused by the present proposals.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the Highways Agency report on the scope for realigning the section of the route across the sensitive area of the River Avon floodplain south of Salisbury, produced in consultation with the Countryside Commission and others, has just been received. The Secretaries of State for the Environment and for Transport will consider the commission's views as part of their consideration of the report.
Lord Marlesford: My Lords, does my noble friend understand my distress that having this morning been to Salisbury for an on-the-spot look at the proposed routes—and I am sorry that he was not able to accept my invitation to accompany me—I found that the present proposal is to build the road across the water

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meadows of both the River Avon and the River Nadder; to build it on three sides of Salisbury Cathedral, within a mile of the cathedral, and to build it on embankments which are between 20 and 30 feet high? Does my noble friend agree that that would devastate a landscape which, as a result of Constable's paintings, is sacred not only to Britain but to much of the western world? Will he urge his colleagues to go back to the drawing board and try to solve Salisbury's traffic problems in a more civilised manner?
Viscount Goschen: My Lords, I accept that my noble friend has strong views on this subject; but I am sure that he will accept that there was a year-long public inquiry and that the inspector concluded that the provision of a bypass was justified. I am sure also that my noble friend recognises that there is a real problem which requires a real solution.
The planning process is still under way. My right honourable friends the Secretaries of State for Transport and for the Environment are considering the Highways Agency report. That report will be published and comments invited upon it. Beyond that, it would not be appropriate for me to comment in more detail at this stage of the planning process.
Baroness Nicol: My Lords, will the noble Viscount accept that in addition to the anxieties expressed by the noble Lord, Lord Marlesford, there is anxiety also about the site of special scientific interest in the meadows, and about the fact that the River Avon and its tributaries is in line to be declared as a site of a special area of conservation? I understand that English Nature has undertaken an examination of the problem. Has English Nature reported; and, if so, what has been its advice? Will that advice be available for us to see?
Viscount Goschen: My Lords, yes. English Nature was part of the review and its comments will be published. I understand also that the environmental and landscape impacts of the bypass were explored in depth at the public inquiry and that the Countryside Commission and English Nature did not object to the bypass proposals at the time of the inquiry.
Lord Congleton: My Lords, I have lived in or near Salisbury for 35 years and I am well acquainted with the problem alluded to by the noble Lord, Lord Marlesford, with whose views I agree entirely. I managed to obtain a copy of the Countryside Commission's letter sent to the Department of the Environment and the Department of Transport. It is a very strong letter. Does the Minister understand how strong that letter is? It refers to environmental, scenic and ecological matters which have been underlined by the noble Lord, Lord Marlesford. Will the Minister confirm that it does not refer to the traffic situation, and there is much anxiety—
Noble Lords: Speech, speech! Question, question!
Lord Congleton: My Lords, I am coming to my question. I hope that the Minister will understand that
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there is much local anxiety concerning the effectiveness of the proposed bypass. Can he assure your Lordships and those who live locally that the bypass will have the effect which it was proposed to have?
Viscount Goschen: My Lords, there is a very real traffic problem in the area and the inspector concluded that the provision of a bypass was justified. My right honourable friends were minded to accept that view but they commissioned further work on the specific points which I mentioned. They will be consulting further on those points and the views of the commission and the noble Lord, Lord Congleton, will be taken into account.
Lord Carmichael of Kelvingrove: My Lords, I have some experience of what happens when a new road is to be built. This is to be an 11-mile road. It is not a short bypass. I have never received quite as many representations as I have received in relation to this proposal. The site of special scientific interest is also of vital importance. People are asking whether the public inquiry was convinced that the only way to relieve the traffic in Salisbury was by this proposed bypass. Will the Minister not take back this scheme and re-examine it within the Government's new and very welcome proposal for planning on a regional basis instead of on such a local basis as it seems to have been prepared?
Viscount Goschen: My Lords, I can merely restate the position that I gave earlier. I direct the noble Lord, Lord Carmichael, to paragraph 43 of the letter to which I referred in which it stated that after taking into account the inspector's views on the possible alternative options put before the inquiry, the Secretaries of State are not persuaded by objectors' arguments that alternative solutions are available. The Secretaries of State felt that it was important to commission further work on those environmentally sensitive questions. That detailed work has now been done. It has arrived only recently in the department. It is extremely important that that should be considered fully and comments are invited upon that work. However, we recognise that there are strongly held views on both sides of the argument and we do not wish to see any unnecessary delay.

Crime and Punishment (Scotland) Bill
3.9 p.m.
The Lord Advocate (Lord Mackay of Drumadoon): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Drionadoon.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Sewel Lord Sewel moved Amendment No. 1:
Before Clause 1, insert the following new clause—
CONDITIONS RELATING TO MANDATORY AND MINIMUM CUSTODIAL SENTENCES
(" .—(1) This section has effect for the purposes of setting out the basis on which the court shall carry out its sentencing functions under this Part.
(2) Under section 1 below, when determining whether it would be appropriate not to impose a life sentence the court shall have regard to the circumstances relating to either of the offences or to the offender.
(3) Under section 2 below, when determining whether it would be appropriate not to impose a custodial sentence of at least seven years under subsection 2(2) the court shall have regard to the specific circumstances which—

(a) relate to any of the offences or to the offender; and

(b) would make the prescribed custodial sentence unjust in all the circumstances.").

The noble Lord said: In moving the above amendment, I shall speak also to the consequential amendments, Amendments Nos. 14, 15, 47 and 48. Amendment No. 1 refers to the process of setting a basis upon which a court shall carry out its sentencing functions under this part of the Bill. It refers to sentencing under Clauses 1 and 2.
The three main purposes of the amendment can be simply stated. First, it would provide an appropriate, necessary and, above all, a workable structure within which judicial discretion can be exercised in the context of a framework of automatic sentences. On this side of the Committee, we do not wish to cast aside the concept of automatic sentences; but we wish to see the appropriate exercise of judicial discretion in that context.
I refer to the comment made during the Committee stage of the Crime (Sentences) Bill, which is the appropriate English legislation, by the independent legal watchdog Justice which said that the purpose of the amendment, moved on that day successfully and being moved today similarly, was:
"to ensure that judicial discretion is preserved while retaining a presumption in favour of mandatory sentences".
That is what the amendment is essentially all about; in other words, it seeks to get the balance right.
Secondly, the amendment would provide a means by which properly severe sentences can be meted out to dangerous and professional criminals while ensuring that the court remains in a position to apply appropriate and proportional disposals for more inadequate offenders; that is to say, to maintain the concept of proportionality in sentencing. Thirdly, the amendment would ensure, in the context of the decision in this Chamber during the passage of the Crime (Sentences) Bill, that the Scottish legislation before us today is brought into step with the English and Welsh legislation.
Many of the arguments that are appropriate and relevant today will be fresh in the memory of many noble Lords. We heard many of them—and many of them are directly applicable—when we discussed the Crime (Sentences) Bill in Committee. Indeed, on that day we heard many effective, robust and powerful speeches. I do not intend to rehearse those arguments in
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detail, because I know that Members of the Committee will already be sensitive to them. However, I should like to highlight one or two of them.
When one moves into the area of automatic sentences and takes away a large element of discretion from the courts, there is always the danger that the courts, and especially juries, will respond knowing that there is the inevitability of an automatic sentence and that the response will basically be a failure to convict where effectively there should be a conviction. I say that because juries are concerned about the appropriateness and proportionality of the automatic sentence which will follow.
There is also the injustice of automatic sentences being applied where, in the full circumstances of the offender and the offence, it is clear that there is a lack of proportionality; that something is deeply wrong and deeply unjust with the application of a severe automatic sentence. We can all recognise that there may well be a case of a young man—or, possibly, a young woman; but for these purposes I will say a young man—who, in a kind of folly of youth, falls into bad company, becomes involved in some very unfortunate activity and perhaps commits a major crime covered by the Bill by bringing about, for example, the permanent disfigurement of an individual and is then convicted at a relatively young age.
Through the passage of time that conviction is seen as almost a one-off. The individual concerned matures, marries and has children. Then perhaps one night about 20 years later there is a rush of blood to his head and something happens. He either attacks a friend or perhaps there is a domestic dispute and, unfortunately, his wife is the subject of an assault. Is it really fair and just in those circumstances to go back to the period of 20 years or more and bring into account, in working out the disposal appropriate for one act, something that happened 20 or more years previously? That is a question that weighs very heavily with me.
When we look at the Bill, I am also concerned to see that a conviction that would count in the totting-up process is one which was disposed of by way of an admonishment; that is, basically the court saying that it is such a minor matter that it is not worth a period of imprisonment or a fine and that it is a case for an admonishment—a good old-fashioned basic telling off. Yet, in the totting-up process that would remain a conviction which could have devastating consequences later on.
As it stands, the Bill perhaps tries to deal with such circumstances by the use of the phrase "exceptional circumstances". However, we are convinced of the need to replace those words with the phrasing set out in the amendment. I should explain why. It is partly because we do not know what "exceptional circumstances" mean. As far as I am aware, the Government have declined to give any substance, definition or meaning to those words as regards what is intended. If that remains the case, as the noble and learned Lord, Lord Hope, indicated on Second Reading, judges will to a large extent be operating in the dark. It is, perhaps, even worse. I say that because the only example that I have

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found of an attempt by the Government to indicate what meaning might be attached to those words is the comment by the Minister of State in the other place, Mr. David Maclean, who said:
"It is the Lord Chief Justice's view, which I believe to be correct, that the term 'exceptional circumstances' will be construed very narrowly. I believe and hope that this is the correct interpretation".
Admittedly, that reference was made in the context of the Crime (Sentences) Bill, but we have a confusion here because in a recent article in the Herald newspaper, Her Majesty's Solicitor-General for Scotland, Mr. Paul Cullen, actually said:
"Nothing in the Bill will reduce judicial discretion".
So where are we? It is incumbent upon the noble and learned Lord the Lord Advocate to make clear what his view is on this provision, whether he goes down the road clearly preferred by his ministerial colleague in the other place—that the provision should be constrained and narrow—or whether he agrees with his own Solicitor-General that it does not change judicial discretion at all. There is a need for clarity; it has not been forthcoming.
The amendment proposed today refers specifically to the exercise of judicial discretion in circumstances relating to either the offence or circumstances attaching to the offender. It is our belief that that gives the right measure of flexibility and the right degree by which the courts, through the judges, can apply the appropriate and just sentence. As the Bill stands, the courts are in great danger of having a number of individual cases put before them of people in different circumstances and of crimes committed in widely different circumstances over long periods of time. Often it will perhaps be the "small fry" rather than the "godfathers" who have been caught. The courts will be confronted with a situation where, as the Bill stands, the automatic sentence is applied which everyone concerned will see as a negation of justice. Surely that cannot be right. We must ensure that our courts have the degree of judicial discretion which ensures, within an expectation of automatic sentencing, the appropriate means whereby the sentence of the court can fit the crime and the court is not required to go down a path which it would recognise as unjust. I beg to move.
Baroness Seccombe: Before the noble Lord sits down, I hope I may ask a point of clarification. When he referred to a second occasion of an offence being committed, perhaps 20 years later, which could involve a wife or another domestic situation, was he implying that an act of violence against anyone in a domestic situation is not as serious as violence against someone else?
Lord Sewel: I thank the noble Baroness for raising that point. I seize the opportunity to say no, certainly not. The point I was seeking to make was that the period of time that may pass between one act and another should rightly and properly be taken into account. At the moment, under the Bill, that is not the case.
Baroness Carnegy of Lour: The noble Lord explained that the amendment would bring the Bill into
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line with the English Bill which is at present going through this Chamber. I suggest it is conceivable that the other place will not accept the amendment agreed by this Chamber the other day. Even if it does, I wonder whether the Scots will want to follow the English along this particular path.
I was not able to speak at Second Reading as I was not well and had to stay at home. But had I been present, I would have expressed the view to the Chamber—as I express it now to the Committee—that it seems to me the Scots are thoughtful people. They are extremely keen on justice but they are also frightened by dangerous crimes that are committed against people in their areas that they read about in the media. I believe that the Scottish public expect Parliament to set a framework for sentencing within which the Scottish judges should act. I believe also that the Scots public are worried that—albeit absolutely within the current law—it is quite possible to read of sentences of, say, four years where people serve only two years in prison. They worry about that and the fact that the longer the sentence, the greater the difference in that regard.
Therefore I do not have a major problem about Clauses 1 and 2 in the way that the noble Lord, Lord Sewel, and his party have. Serious violent and sexual offences which are repeated—I remind the noble Lord, Lord Sewel, that they have to be serious offences because they have brought about conviction on indictment in the High Court; they are not the trivial kind of sentence that I believe he implied—are dreadful crimes. And so is drug trafficking that has been repeated three times. To lay down that in the case of the former offence a life sentence is mandatory, unless there are exceptional circumstances, and that a seven year sentence is the minimum for drug trafficking seems to me to be what the public want. They want to see a different framework within which the judiciary can operate.
The whole thing, it seems to me, hangs on the fact that the judiciary are permitted, in exceptional circumstances, not to pass that sentence. As I understand it, Clause 1(3) enlarges upon that. It states that,
"if the High Court is of the opinion that there are exceptional circumstances…the court may decline to pass that sentence and may instead pass any sentence which it otherwise has power to pass in respect of a conviction for that offence".
It seems to me, an ordinary person who has acted as an honorary sheriff but not in any way as a professional judge, that there is discretion for the judge. The judiciary do not like it. At the moment they have free discretion over a much wider range. I believe that this Chamber and the other place—Parliament as a whole—owe it to the Scots public to see Clauses 1 and 2 onto the statute book. I hope therefore that the Committee will not accept these amendments.
3.30 p.m.
Lord Thomas of Gresford: The noble Baroness, Lady Carnegy of Lour, says that the Scots are thoughtful people. Not only are they thoughtful; they also have great pride in their separate judicial system and, I had always believed, great pride in the judges who administer that system. Therefore, when there are

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proposals before this Chamber for the curbing of the discretion of those judges, I am sure that the people of Scotland will want to examine closely and with deep thought what rationale is put forward by the Government for introducing those curbs and for imposing automatic sentences in Clauses 1 and 2 of the Bill.
The first issue that arises is this. Is there something wrong with the level of sentencing that is passed in Scotland at present? Is there a general feeling that sentences are too low? If so, the machinery for putting the matter right is already in existence; and it is machinery which has been introduced by this Government within very recent years which has not had time to prove itself, to show whether it can operate successfully. For example, if the Crown, the prosecutor, feels that a sentence which is far too low has been imposed by a court then the Crown may appeal. I should be interested to hear from the noble and learned Lord the Lord Advocate how many times since the power came into operation in the cases referred to as qualifying offences he and his predecessor have exercised the right of appeal on sentence to the High Court, and on how many occasions those appeals have been successful.
On 1st April 1995, less than two years ago, the Criminal Procedure (Scotland) Act 1995 introduced the power of the High Court to pronounce an opinion on the sentence or other disposal in a particular matter which is appropriate in similar cases. Two sections of that 1995 legislation introduced by the Government have not had time to operate. By the use of that power the High Court can lay down sentencing guidelines which under Section 196 of that Act must be taken into account subsequently by any court which passes sentence in a similar case. That appears to be machinery introduced by the Government in order to deal with the level of sentencing if there is thought to be something wrong with it.
However, other constructive proposals have been put forward. In case it be thought that questions of sentencing are kept too much within the legal profession, or within the judiciary, in 1992 the Law Society of Scotland proposed a sentencing commission modelled on the sentencing commission in the state of Massachusetts in the United States which suggested that a body should be formed consisting of judicial legal professional people and lay people. They would have referred to them particular offences. They would be able to institute research into those offences, to consider the matter on broad public policy lines and produce advice by way of a report which any court could then take into account. Their proposal, put forward in 1992 by amendment to a Bill going through this House, was not successful.
However, if there is a genuine feeling that levels of sentencing are too low, surely the way to go about it is not to impose an automatic sentence in every case but to carry out the necessary research, give consideration, and take advice from informed people and lay people who can give an opinion. After all, there is nothing particularly magic about any level of sentencing. The levels of sentencing in this country have gone up and
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up under public pressure over a number of years; and the judges, as an entire body, reflect what they believe to be public opinion. If they are getting it wrong, then there are ways of dealing with that other than by imposing some artificial and automatic standard which will inevitably bring about injustices in certain cases.
If it is not levels of sentencing that worry the public, is it perhaps consistency in sentencing; namely, that there are variations between one court and another which must be addressed and dealt with so that a person who commits an offence in one part of the kingdom is sentenced in the same way as someone before a court elsewhere. In Scotland, the High Court is fortunate in having a small body of people which meets together on a regular basis save when they are on circuit, and no doubt discuss such matters. If there is a problem of consistency in sentencing, I do not believe that it arises at that level. It may arise at the sheriff court level; there are many more such courts scattered throughout Scotland. If that is the case, that problem can be addressed in other ways than by the imposition of automatic sentences. I doubt whether the sheriff court will deal with the offences that are qualifying offences in Clause 1 of the Bill, and certainly not with the matters referred to in Clause 2. But I address that problem by way of general comment at this point. For example, if there is inconsistency between sheriff courts, it is possible for sheriffs to be appointed to sit in the High Court on appeals against sentence from sheriff courts. Sheriffs could play their part in meeting together on an appeal body, to discuss the appropriate sentence in a particular case.
There is room for the computerised project that the Lord Justice-Clerk, Lord Ross, proposed in Scotland whereby sentences are computerised and published for the benefit of judges who pass sentences throughout the country.
Under the proposals set out in Clause 1 of the Bill, unjust sentences are inevitable. It is a disgrace—is it not?—to a judicial system that it should contemplate passing sentences which by definition will turn out to be unjust. Why do I say that? Because the circumstances of each and every individual case are different. Practitioners understand that. Judges understand it. No two cases are the same. For example, there can be the same conviction passed upon a person who is an accomplice to a serious crime—one of a group of young people who become involved—where the blow is struck by only one person yet all are guilty because all are encouraging what goes on. That counts as the conviction for the full offence.
As the noble Lord, Lord Sewel, pointed out, there can be differences of timing. Years may pass between the two qualifying offences; the circumstances of the first offence may have been forgotten. For the purposes of considering exceptional circumstances at least, if not even the circumstances proposed in the amendment, it is necessary for the court to have before it a report on the facts of the first qualifying offence and on the mitigating circumstances which were applicable at the time of the original offence—and under the proposed legislation that could be 20 or 30 years previously.

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If it is said that legislation for automatic life sentences is necessary to protect the public, that there should be indeterminate sentences, that we are pursuing honesty in sentencing, why should this sentence be called a life sentence? There is no intention of imprisoning people for life. If there is a need for an indeterminate sentence, why it is not called a public safety sentence? Everyone can understand that a person is being imprisoned for an indefinite period until the Home Secretary or the Secretary of State for Scotland is satisfied that that person is safe to be released into the community. When one sees that automatic life sentences are contemplated in this clause, and when one considers that the machinery which the Government have only recently put into effect has not had time to operate, one has to come to the conclusion that the use of the express words "life sentences" is no more than gesture politics, to use the expression used by the noble Lord, Lord Carlisle, in our debates on the Crime (Sentences) Bill. Using words of this sort is gesture politics designed to create a public impact. I urge the Committee to support this amendment to keep the Bill in step with the amendments that have already been sensibly passed by this place on the English and Welsh Bill.
Baroness Carnegy of Lour: Before the noble Lord sits down, may I say that noble Lords who live in Scotland will be able to tell him that what concerns people there is not the level or the consistency of sentencing. Not everybody knows about all the mechanisms that there are to even these matters up, but they are very good, and I am sure they work. What worries people is the fact that the time spent in prison is so very different to the sentence that a person receives. That worries people. The Scottish media bear that out, as do my own discussions with the people who live where I do.
Lord Thomas of Gresford: With the greatest respect to the noble Baroness, she merely emphasises the point that I sought to make a moment ago; namely, that we are to have a proliferation of "life" sentences—that is the word being used—when the media and the people of Scotland know that it is not a life sentence that is contemplated at all; it is an indeterminate sentence. I would describe it as a public safety sentence. Why can we not use the correct expressions when contemplating changes of this sort?
Lord McCluskey: The noble Baroness, Lady Carnegy of Lour, just expressed her support for proposals in a different part, Part III, of the Bill; namely, the early release proposals, to which we shall turn in due course. She also, perhaps unwittingly, expressed total support for the speeches just delivered, particularly by the noble Lord, Lord Thomas of Gresford. I shall do the same. I propose to be brief at this stage since I intend to speak on the Question as to whether this clause shall stand part of the Bill. I can forgive the noble Baroness some of her errors, since in the article referred to by the noble Lord,
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Lord Sewel, no less distinguished an authority than the Solicitor-General for Scotland said, with the utmost folly:
"Nothing in the Bill will reduce judicial discretion".
There are 26 offences listed in the Bill, and they constitute 99 per cent. of the diet of the High Court in Scotland, in which I have been appearing for 41 years. These offences are almost all the offences with which I deal as a High Court judge. My discretion will be totally and utterly removed in any case in which a person has previously been convicted of such an offence. Let me make that abundantly plain. The literature and statements put out by the Government do not make it clear. I repeat, it is not a matter of having cognate offences, such as rape, to put people into prison. If a boy at the age of 15 interferes with his little sister and happens to receive a conviction for what is called lewd and libidinous practices which does not involve an assault and may involve no more, then at the age of 18, if in the course of a brawl in a bar he cuts somebody's face and inflicts a scar that requires four stitches, he goes to prison for life. As a judge I would never dream of imposing such a sentence. To say that my discretion is not removed is the utmost folly. For the Solicitor-General to write for readers of the Herald, the quality newspaper with the largest circulation in Scotland, that nothing in the Bill will reduce judicial discretion is totally and utterly misleading.
On the point about consistency, we have—it was sponsored by the recently retired Lord Justice Clerk, Lord Ross—the "sentencing information system". Every sentence imposed in the High Court in Scotland for the past five years is put onto a computer databank. I have a computer at home, and when I come out of court in the course of a day, I press the appropriate buttons and find out what we have been doing in assault cases of this character and that character. I can type in offence characteristics and offender characteristics, and can thus arrive at the centre of gravity, as it were, of what we are doing. Consistency is assured for that reason as well as for the reason given by the noble Lord, Lord Thomas.
We shall examine more fully the matter of "exceptional". But the Committee should understand this. When in a statute a word is used that has been used previously in statute, the courts will always endeavour to give that word the same meaning as it had on previous occasions. The word "exceptional" has been given a meaning in England and in Scotland. The Minister of State was quite right to agree with the Lord Chief Justice that it will be construed extremely narrowly. I will seek information about this; however, as I read the Bill, "exceptional circumstances" relates only to the second or qualifying offence, not to the first. We shall return to that. The sheriff court has no jurisdiction at all in this matter. It cannot and is not required by the Bill to pass a life sentence.
In conclusion, I listened to the remarks of the noble Lord, Lord Sewel, with some astonishment. He said things with which I agree about 99 per cent. He also said that they supported the idea of mandatory sentencing. His entire argument gave the lie to that

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proposition. He cannot advance the argument that he has and say, "We support some degree of mandatory sentencing". I shall return to the matter at a later stage.
3.45 p.m.
Lord Carlisle of Bucklow: I intervene with great trepidation on a Bill which describes itself as referring to Scotland. I do so in order to make only one very small point and to support the remarks of the noble Lord, Lord Thomas. As I understand it, this amendment is word for word the same as that passed by this place some two or three weeks ago in relation to Clauses 1 and 2 of the Crime (Sentences) Bill relating to England. Surely, if for no other reason than that of consistency, we should support in the same way this amendment to this Bill.
The noble Baroness says that that amendment may be changed in the Commons. It may; on the other hand, it may not. Certainly, if we change this Bill in the same way, the Commons will have the opportunity to deal with both Bills in the same way when they return there.
Lord Ackner: I rise to make a very short intervention. We had a White Paper in 1960 entitled, Crime, Justice and Protecting the Public. That contained a statement of the government view then in these terms:
"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".
In the debates on the English Bill we heard not the slightest basis for the Government changing their mind. The noble Lord, Lord Can, a former Home Secretary, in a debate that was the result of an intervention by the former Lord Chief Justice, Lord Taylor, said in terms that where the Government make such a fundamental change in philosophy they must be obliged to provide the basis for the change. None has been provided. It is very easy to support what is said. "It"—these mandatory sentences—"could result in more acquittals by juries with more guilty men and women going free unjustly as a result".
Let me very briefly give the Committee some indication as to how maximum and minimum sentences can detract from public safety and public protection. First, there will be many more cases where there are pleas of not guilty to avoid the risk of being convicted with a life sentence. The consequence of that will be to jam up the lists; it will involve victims having to go through the misery of a court appearance; and, because the onus of proof is such a heavy one, there will be some guilty persons who go free.
Secondly, there will be occasions when the jury, conscious of the severe consequences of a conviction and not wishing to impose what will in the event be a life sentence, will refuse to convict. There will be cases where witnesses, particularly those who have some family or emotional relationship with the accused, will either refuse to give evidence or not come up to proof.
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There will be cases where the prosecution, anxious to achieve a conviction and knowing that the danger is that they will fail, will—as has occurred in America—enter into wholly unrealistic plea bargains, thereby shifting the discretion in sentencing away from the judges and into the hands of the prosecution or the defence.
Finally, the prisons will be filled up, with the result that they will no longer have adequate resources to provide training and re-education to aid rehabilitation. As a consequence, more people will be convicted again, following their release from prison, and recidivism will increase. I respectfully suggest to the Committee that for all those reasons this amendment should be agreed to.
Lord McCluskey: There is one other matter that I should have mentioned. The prison population of Scotland at the moment is slightly smaller than 6,000. I put down a Question to the Government at about the time of Second Reading to ask how many people in Scotland are qualified to go to prison the next time they appear in the High Court and are convicted. The answer was 3,300: so 3,300 people are at risk of being sent to prison for life if they commit a further offence.
I believe that my noble and learned friend Lord Ackner referred to the 1960 White Paper; of course, he meant to refer to the 1990 White Paper.
Lord Macaulay of Bragar: We shall come to the question of prison population in due course. If I may take up the point made by the noble and learned Lord, Lord McCluskey, the Explanatory Notes to the Bill state:
"There will be no significant increase in Prison Service manpower, as new prisons will be privately financed".
I do not quite understand what that means. The notes continue:
"However the new assessment procedures will require the equivalent of 25 additional prison staff".
That must tie in with the figure given to the noble and learned Lord. It is also stated:
"The provision of additional court sitting days will require the appointment of one Senator and 7 permanent Sheriffs".
I do not understand why eight extra judges are needed to implement the provisions of this Bill; judges just impose a different sentence.
An amendment of this importance tends to take on the dimensions of a Second Reading debate; I shall try to avoid that. I do not intend to go over the points made on Second Reading. As demonstrated by the amendments put down by the noble and learned Lord the Lord Advocate, he has taken notice of some of the points made.
From reading the Scottish press it seems to me that there is something peculiar in the concentrated government feeding of the press with regard to the Bill. I understand—though I say it with great reservation because I do not like hearsay evidence—that before the Bill ever reached the Committee the Lord Advocate and the Solicitor-General held a press briefing. I would like the Lord Advocate to say whether that rumour is true or untrue; and, if it is true, why it was held and what its purpose was.

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If I may say so—with the greatest restraint because the Solicitor-General is not a Member of this Chamber—the article in the Glasgow Herald is one of the most disgraceful I have seen for a long time concerning the Scottish judicial system. I have to declare an interest because the noble and learned Lord, Lord McCluskey, was my devil master at the Scottish Bar. That does not make any difference. I hope that the Lord Advocate will take heed of what the noble and learned Lord said during the Second Reading debate and answer a question for a change. Did the Lord Advocate approve this article? Was it cleared by the Crown Office? Did he see a draft of it? Does he consider it proper, when a debate is taking place in this Chamber, that a senior law officer dealing with the Bill goes into public print to make an attack—this is nothing less than an attack—on a highly respected senator of the College of Justice? If we do not receive an answer today, I shall continue to seek one.
It has been claimed in the press in one form or another that this side of the Committee is out to wreck the Bill. Nothing of the kind. We accept the Bill—it will probably go through—and, in the best traditions of your Lordships' House, will try to amend it and make it sensible and workable and not the piece of judicial and legal nonsense that it is at the moment.
It is important to remember that life sentences were introduced into the system as a quid pro quo for doing away with capital punishment. That was the bargain that was struck. It is clear from the deliberations of the Select Committee which met a number of years ago. The transfer of the crime of murder into the terms of this Bill is quite inappropriate. It will increase the prison population. With respect to the noble and learned Lord, Lord McCluskey, the recent figure for Scotland is 6,200 prisoners "banged up" three in a cell, with the prospect of one new prison in Kilmarnock in 1999 which may hold 500. Will the Lord Advocate tell the Committee whether the figure given by the noble and learned Lord of an increase of 3,300 is correct? If it is correct, where will he put them? Is he going to put them up on the roof of the prison?
Lord Mackay of Drumadoon: Before the noble Lord continues, did I understand him to suggest that the Government were asserting that, as a result of the Bill, there would be an increase in the prison population in Scotland of 3,300?
Lord Macaulay of Bragar: That is precisely what I understood the noble and learned Lord, Lord McCluskey, to say. I may have got it wrong; if I have, I apologise.
Lord McCluskey: I am afraid that the noble Lord has got it wrong. What I asked the Government was how many people had already committed qualifying offences. I did not ask about the relevant offences, because that applies to people who have committed offences in England; that simply adds to the number. At the moment there are 3,300 people who, if convicted in
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the High Court of a qualifying offence, will go to prison for life. It will not have the effect of increasing the prison population by 3,300.
Lord Macaulay of Bragar: I apologise to the noble and learned Lord; it is probably my phraseology. There is potential for an increase in the prison population of 3,300. If that is correct, let us assume that they commit a second offence. Where do the Government propose to put them?
Lord Mackay of Drumadoon: The noble Lord says that there is potential for an increase in the prison population to the extent of 3,300 people. If all of those 3,300 people have already committed qualifying offences—which, as the noble and learned Lord, Lord McCluskey, would have known when he put down the Question, involves convictions in the High Court—and they commit another serious violent or sexual offence which results in their conviction in the High Court, would the noble Lord not agree that each and every one of them is already liable to go to prison, either for a determinate sentence or, if it is an offence which carries the maximum penalty of life imprisonment, for a term of life imprisonment? If they offend again, each and every one of those offenders could go to prison. Does the noble Lord not agree with that?
Lord Macaulay of Bragar: I would accept that, but we are dealing with the question of judicial discretion here. It is not always necessary to send people to prison. The figure I have is that 6,200 people are presently in prison in Scotland, and the prisons are grossly overcrowded but I will not dwell on that matter.
Noble Lords who have contributed to this debate have given reasons for someone receiving an automatic life sentence. For example, let us assume that a 15-year-old happens to be involved in a school fight and someone dies or receives a severe injury. The 15-year-old goes on to complete his education, going to university and finally qualifying as an architect or doctor. He then marries and becomes involved in a domestic dispute—and I say that with respect to the noble Baroness—having lived a blameless life for 15 to 20 years. If he happens to go off-course on one occasion, he will receive a sentence of life imprisonment. That is why I make no apology for saying that this part of the Bill is complete social and legal nonsense. Even if a person is admonished, under the Bill that will still be counted as a conviction resulting in imprisonment for life.
I well remember a case in Edinburgh—and I shall not mention names because it is not appropriate—of a publican punching a Welsh supporter who was making a nuisance of himself. He gave him just one punch whereupon the supporter fell down some steps outside the pub and died. As I recollect, I think the publican was admonished. Now that is strike one. Although the court has admonished him, if the publican happens to be involved in another assault 20 to 25 years later, he will go to prison for life. What sense is there in that?
What steps do the Government intend to take, as the noble Lord, Lord Thomas, mentioned, to find out what the first offence was all about? If it took place in

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England or Wales, we would have to obtain a report from the Crown Prosecution Service or its predecessor, the police. If it took place in Scotland, we should have to obtain a report from the Crown Office. But there is nothing in the Bill that requires the court to be apprised of the situation pertaining at the time the first offence took place: even the age of the person and the circumstances; and, as we mentioned at Second Reading, whether or not the person was certifiable or suffering from a mental disorder. That seems to me to be grossly unfair.
This part of the Bill demeans the meaning of life imprisonment. One may call it a public safety order, as the noble Lord, Lord Thomas, has mentioned. People should know what life imprisonment is all about and it should be reserved for very special cases, not for political gain, as is the case with this Bill.
The other dimension is the European dimension, in which I understand the Government are not very interested. You can bet your bottom dollar that the first person who receives an automatic life imprisonment will appeal to the European Court. That, of course, will set off a chain of events. Let us take the European Community: we are all supposed to be part of the one community. Why is it that if a person commits an offence in England or Wales, he or she becomes subject to this provision in Scotland and visa versa, but if that person commits the first offence in Paris or Madrid the provision does not apply. That means that a person who has killed someone in Madrid or Paris can come to England, Wales or Scotland, kill someone there and it does not matter: he will receive the appropriate sentence with judicial discretion on the first offence. As this is a Scottish Bill I think we can call it a lot of legal "porridge".
Lord Campbell of Alloway: Perhaps I may respectfully suggest that party affiliation ought not to govern our consideration of the due administration of justice in Scotland. I support the amendment. Of course, as the noble Lord, Lord Sewel, said, it avoids a negation of justice. I would not seek to enter into the essence of the merits of this argument. They have been thrashed out over the English Bill and they have been dealt with more ably today than I would be able to. I am not concerned at this stage with the prison population question; nor indeed the international or European justice aspect. But consistency has a merit. This amendment has been carried into the English Bill. I do not assume that another place will reject our amendment; assuredly I do not. It may well be that certain members of the Government, which I support, will not change their minds. So be it. That does not mean, as night follows day, that another place will reject these amendments. Hope for justice, as I see it, springs eternal.
Lord Mackay of Drumadoon: These amendments require to be considered together but equally, to some extent, must be examined separately. The first, which seeks to introduce the new clause standing in the names of the noble Lords, Lord Macaulay of Bragar, and
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Lord Sewel, is, in the Government's view, partly unnecessary and partly unacceptable. It sets out, as noble Lords will see, some references or some changes to the circumstances in which the court can exercise its discretion to set aside the mandatory penalties prescribed in Clauses 1 and 2. I shall obviously have more to say about the issue of discretion in due course in the light of the contribution made by the noble and learned Lord, Lord McCluskey.
Clause 2 deals with mandatory sentences for drug offenders. The amendment seeks to introduce a different approach for Clause 2 from that which would apply for automatic life sentences under Clause 1, provided that Amendment No. 1 is the only one that is carried. But noble Lords will bear in mind the terms of Amendment No. 14, which appears in the names of both noble Lords, which seeks to leave out "exceptional" and insert "specific". I invite members of the Committee to have that before them when considering the merits or otherwise of this first amendment.
Noble Lords will recall that Clause 1 will require the imposition of automatic life sentences on those convicted in the High Court for a second occasion of serious violent or sexual offences. As I have already observed, the new clause, when looked at in isolation, does not seek to alter the requirement that the circumstances which allow the court to set aside an automatic life sentence for the purposes of Clause I must be exceptional. However, it seeks to alter the approach which the courts would take. It refers to a test of appropriateness, which is not actually to be found in the terms of Clause 1 as currently drafted. It would require the court, when considering whether there are any exceptional circumstances to justify not imposing a life sentence, to consider the circumstances relating to the two qualifying offences and to the offender. There is nothing in the Bill as currently drafted which would prevent the court from considering such circumstances. During all the debates on both the English Bill and this Bill in another place and when the English Bill was debated extensively before a committee and in this Chamber, it was accepted that the clause as currently drafted would cover that point. But the approach taken in drafting the Bill is that, rather than prescribing the particular circumstances which the court must consider, the Bill leaves to the discretion of the court the consideration of what can be exceptional circumstances. That is one aspect on which the discretion of the court is preserved.
The Government can see no reason why the court could not construe the term "exceptional circumstances" in the manner I suggested. For that reason the first part of the amendment—namely, new subsection (2)—is considered to be unnecessary. Moreover, it might even have the unfortunate consequence of restricting the circumstances which the court could consider and, if it were to be accepted, might lead the court to construe Section 205A(3) of the Criminal Procedure (Scotland) Act 1995 (as it would be introduced by Clause 1 of the Bill) in a narrower way than it otherwise might have done. For example, if this amendment is carried, there is a possibility—I put it no higher—that the court might take the view that more general background information

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might not fall within the definition of "exceptional circumstances". For that reason, the court might seek to exclude them from consideration.
So far as concerns Clause 2, the new clause has a dramatically different effect. I invite the Committee to bear that in mind. It would replace the existing "exceptional circumstances" test and thereby effectively wreck the Government's intention in Clause 2 as included in the Bill. In its place, the court would have the discretion to set aside the minimum sentence of seven years' imprisonment, where there are specific circumstances which relate to the offence or the offender which would make the mandatory sentence "unjust in all the circumstances". I am sure the Committee will accept that that will be a much less stringent test. We believe that it would undermine the objective of Clause 2, which is to ensure that persistent, serious drug dealers receive a degree of punishment appropriate to their repeated level of offending. The Government have made clear on a number of occasions—and I repeat it again this afternoon—that they believe that the public deserve protection from such repeat offenders. This clause is intended to give the public that protection.
The whole essence of mandatory penalties is that they should be imposed except in the most exceptional cases. If they are not, then mandatory penalties will not have the salutary effect that we intend and expect them to have. Therefore, I hope that the noble Lords will not press the first amendment tabled in their names.
4.15 p.m.
I shall deal with the other amendments before responding to some of the points made in debate. Amendments Nos. 15 and 48 are in a similar vein. They seek to direct the High Court, for the purposes of Clauses 1 and 2, to consider the circumstances relating to the offender and to the offender's previous offences when considering whether there are exceptional circumstances which justify the imposition of a sentence other than an automatic sentence. I have already indicated that so far as concerns Clause 1, the Government see no reason why that should not be possible. That would equally apply to Clause 2.
Amendments Nos. 14 and 47, also tabled in the names of the noble Lords, Lord Macaulay and Lord Sewel, adopt yet another strategy for undermining the objectives of Clauses 1 and 2. The amendments would replace the existing provisions, whereby the High Court may decide not to impose a mandatory sentence if there are exceptional circumstances justifying a different sentence, with this alternative provision which would allow the court to impose a different sentence if there are specific circumstances for so doing. Obviously, "specific" is not required to mean "exceptional" or "unusual". The amendments would allow a different sentence to be imposed whenever there are identifiable circumstances, no matter how commonplace, which the court decided justified the imposition of a determinate sentence different from either the automatic life sentence in Clause 1 or the mandatory sentence set out in Clause 2. In effect, they would nullify the provisions of Clauses 1 and 2.
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I turn to some of the points made in the debate. There was some dispute between the noble Lord, Lord Sewel, and, to some extent, the noble and learned Lord, Lord McCluskey, as to the effect that the provision would have on judicial discretion. The Government's position has been explained on a number of occasions and need not be elaborated upon at length. So far as concerns automatic life sentences, there will be a discretion to consider what is the fixed period to be spent in custody for punishment and deterrence; there will be discretion to construe what the term "exceptional circumstances" amounts to; and, in the circumstances of a particular case, having regard to the submissions made to the court, there will be a discretion for the chairman as to whether or not there are exceptional circumstances which would justify the court departing from the mandatory penalty.
The noble Lord, Lord Sewel, suggested that the main purpose of the new clause to be inserted before Clause 1 was to bring the Scottish Bill into line with the English Bill. That view was supported by my noble friend Lord Carlisle. Looked at in isolation, that is correct. But if the Committee were to agree to Amendment No. 14, it would alter the Scottish Bill to a greater extent than happened to the English Bill. As these amendments are effectively moved at the same time, in my submission it is right for the Committee to consider them together.
Another point made by the noble Lord, Lord Sewel, concerned the effect on juries and whether they would be reluctant to convict. I recall that during our debates on the English Bill the noble Lord, Lord Thomas of Gresford, indicated that the practice of defence counsel would be to lay the existence of previous convictions which were of relevance to mandatory sentences before the trial while the questions of guilt or innocence were still live. On the basis of my experience as prosecutor and as defence counsel, I find it difficult to imagine that happening in all but the rarest of cases. Suppose that a man, having previously maintained his innocence, had been convicted of rape by the jury against his evidence. If that fact came out when he was being tried for a second qualifying offence, it is difficult to see how, if he disputed that second qualifying offence, the history of what had happened at the first trial and the fact that he had protested his innocence and been convicted at the first trial, would assist in avoiding conviction. I go further and say that there would be a very strong argument that, if defence counsel deliberately brought that fact out purely for the purposes of avoiding a conviction on the basis that a jury would be reluctant to convict, that would not be a practice which would find approval either with the court or, equally importantly, with counsel or the Solicitor-General's professional colleagues.
The noble Lord, Lord Sewel, mentioned the example of offences separated by a period of 20 years. Such a fact could—I put it no higher than that—justify a successful argument that there were exceptional circumstances. That is precisely the sort of issue that we are leaving to the courts to consider. Equally, the fact that an admonition had been the appropriate penalty on an earlier occasion could indicate that it was worth looking with great care at the circumstances of the

1723
earlier offence to see whether the two justified an argument that exceptional circumstances were to be found.
Mention has been made on more than one occasion about the article in the Herald in the name of the Solicitor-General for Scotland. I will have more to say about that in due course in response to the questions put to me by the noble Lord, Lord Macaulay. As far as comparing what was said in that article with what was said by the Minister of State in the English Bill in another place and by the Minister of State, Lord James Douglas-Hamilton, on this Bill in another place, they were talking about slightly different issues. Both Ministers of State were explaining the Government's approach to exceptional circumstances which were outlined to the Committee this afternoon.
Lord Macaulay of Bragar: Will the noble and learned Lord give way? I was not discussing what the content of the article was. I put a simple question: did the noble and learned Lord know of this article which was about to be published, and did he, as the senior officer in Scotland, approve of the Solicitor-General going into print in the middle of the debate on a very important Bill in Scotland? It is a simple question which demands a simple answer. Did you approve or did you not?
Lord Mackay of Drumadoon: It is a simple question which demands an answer, to use the words of the noble Lord. Whether it demands an answer or not, I intend to give it. With the permission of the noble Lord, I would like to deal with all of his points at the same time. I have no intention of ignoring the allegation—I have to put it in those terms—that the Solicitor-General attacked the Senator of the College of Justices, the noble and learned Lord, Lord McCluskey. I will invite the Members of the Committee who have not read the article to read it to see whether I am right. I invite the Members of the Committee to consider that it is no more an attack on the senator than some articles to which the noble and learned Lord himself has contributed have been a personal attack on myself.
I turn briefly to deal with the points made by the noble Lord, Lord Thomas of Gresford. He asked for some information about the right of appeal which the Lord Advocate recently acquired on unduly lenient sentences. The latest information I have is that since the jurisdiction was introduced there have been a total of 31 appeals. Ten of these have been successful, 10 have been unsuccessful and seven of them were not proceeded with after the judge's full report was made available. I am sure the noble Lord will be aware that, unlike in England and Wales, judges are not required to explain in detail in Scotland why they are imposing a particular sentence. The Crown's practice, which I am sure the noble Lord will well understand, is that when the trial judge or the sentencing judge has had the opportunity of explaining in detail why he imposed the sentence in the light of background
1724
reports or whatever other information he had available, the Crown's appeal is reassessed. There are some three outstanding.
The test for this jurisdiction is a comparatively high one. I understand that it is fairly similar to that which applies in England. The sentence must fall outside the range of sentences which judges at first instance, applying their minds to all the relevant factors, could reasonably have considered appropriate, weight always being given to the views of the trial judge. The appeal court can but will not necessarily pass an additional sentence if it was satisfied that the original sentence was unduly lenient. It goes back to a requirement that it be one which falls below the bottom of the range.
As far as concerns the other procedure to which the noble Lord referred, the sentencing guidelines which are to be found in Section 197 of the Criminal Procedure (Scotland) Act 1995, my regret is that these guidelines have never yet been exercised by the court. I am as keen as anyone that they should be exercised. It will be for the court to decide when dealing with the numerous sentence appeals that are considered by the court every month in Scotland to decide in which cases it would be appropriate to exercise that jurisdiction and which are the ones where guidance would be of assistance.
With the greatest respect, I do not believe that either of these two statutory provisions, whilst they are useful, go anywhere towards providing the additional safeguards which the Government believe will be brought, first of all by automatic life sentences, and secondly by mandatory sentences in drugs cases.
In addition to the determinate part of an automatic life sentence, the period which the judge imposes to punish and deter the individual, there are of course two additional safeguards. One is that the Parole Board will have a say in deciding when it is safe to release the offender. Secondly, he will be subject to life licence thereafter. These are both safeguards which neither of the statutory provisions mentioned would help.
The noble Lord raised the question, why call it a life sentence; why not call it a public safety sentence? That is an interesting point which one could apply to the present system of discretionary life sentences. The Government's position has been to mould the automatic life provisions on the existing system for discretionary life sentences. If one were going to have a different name for Clause 1 offence sentences, then clearly one would have to rewrite a lot of other legislation, and it is not proposed to do that at the present time.
Turning to the points mentioned by the noble and learned Lord, Lord McCluskey, I hope he will accept that I have already explained to the Committee how the Government believe that all judicial discretion is not being removed. I fully accept that he has a different view on the matter but, in the light of the decisions which a trial judge or sentencing judge

1725
would have to make, I trust that Members of the Committee will understand and accept my point of view on that matter.
Lord McCluskey: Would the noble and learned Lord say whether he agrees with the following statement in the article by the Solicitor-General for Scotland appearing in the Herald newspaper on 15th February:
"Nothing in the Bill will reduce judicial discretion".
Lord Mackay of Drumadoon: In my view it can be said that that is correct.
Noble Lords: Oh!
Lord Mackay of Drumadoon: I hope Members of the Committee will bear with me. At the present time, in dealing with a second offender convicted in the High Court on a second occasion for one of the qualifying offences, the court has to exercise a discretion as to how long the offender should stay in custody for the purposes of punishment and deterrence. That discretion will remain. What the Bill does is require the additional safeguards which follow from an automatic life sentence to be imposed. A view can be taken that it is limiting discretion; a view can be taken that it is not doing so. I hope the noble and learned Lord, Lord McCluskey, will be fair enough to accept this, that when the whole of the Solicitor-General's article is read, whilst it does not espouse views which I know he would share, it is quite wrong to characterise it as an attack on the noble and learned Lord. It is no more than a Member of the Government explaining to the readership of the Herald newspaper—in the way many others have sought to explain to the readership of the Herald newspaper—what their views are on the specific issues that arise in the Bill.
4.30 p.m.
McCluskey: I did not intend to raise the issue but it has become a matter which is trivialising the debate. When I came into the Chamber to speak at Second Reading, the Chamber was packed because the House was then dealing with the firearms legislation. I could not obtain a seat on these Cross-Benches. I asked the doorkeeper where I might sit and he pointed to the fact that the seat next to the noble Baroness, Lady Hylton-Foster, was free, though it was normally occupied by my noble friend Lord Weatherill. He said to me, "If you are a Cross-Bencher, you cannot get much more Cross-Bench than that"! I therefore sat in that seat.
The article the Solicitor-General wrote in the Herald, which may be a contempt of this House, says as follows:
"The spot from which he [Lord McCluskey] rose to speak, though well to the left"—
I emphasise "to the left"—
"of the Opposition front bench, was still technically part of cross-bench territory. But he had positioned himself as far from the Government as he could get and with his hack to the wall. Perhaps there was some theatre here after all, or at any rate some stagecraft, for Lord McCluskey went on to deliver what was reported as a 'thunderous denouncement' of the Crime and Punishment Bill".
1726
It continued a little later,
"It was a bravura performance, and won admiring reviews in the next day's papers … But judges should be wary of playing to the political footlights".
The suggestion is that by sitting as far away as I could from the Government and as far away as I could from my former noble friends on the Front Bench of the Labour Party, I was playing to the political footlights. That is not just funny; it is close to being contempt of the House. It is deeply offensive and, at the very least, it is snide.
Lord Mackay of Drumadoon: I demur to the noble and learned Lord in those observations. If I could modestly say so, one of the things I have learnt since I came to this Chamber—not that long ago—and one of the things that characterised our deliberations on the Crime (Sentences) Bill, is that a little humour goes a long way to lighten the long evenings. All Benches complimented each other recently on that. If people within the Chamber are entitled to a sense of humour, there may be an argument—I put it no higher—that those outwith can have a sense of humour also.
It may be productive for me to move on to another point raised by the noble and learned Lord, Lord McCluskey, relating to the 3,300 people at risk The answer is to be found in the misunderstanding which gave rise to the exchange between the noble Lord, Lord Macaulay, and myself. If people reoffend; if they go to prison; if there are not enough places for them in prison, then additional prison space will require to be found. Clearly the Government will not bring these provisions into effect unless there is the necessary prison space for anybody convicted.
It is important to bear in mind, when dealing with automatic life sentences, that a person subject to an automatic life sentence need not necessarily spend any longer in prison than he would spend if he were subject to a determinate sentence. My noble friend Lord Carlisle made that point quite clear on repeated occasions when he was criticising the English Bill. He never for one moment suggested that automatic life sentences would necessarily lead to an increase in the prison population.
Perhaps I can deal now with the points put to me by the noble Lord, Lord Macaulay. It is fairly unusual for a Government Minister to be asked whether he took part in an off-the-record briefing. It is fairly unusual for an Opposition spokesman to be asked whether he ever took part in an off-the-record or lobby briefing. That is one of the characteristics of Westminster which applies to both this House and to another place. In so far as the question was asked, to which an answer was demanded, I am happy to say and perfectly prepared to say that in the usual terms for a lobby briefing, I took part in such a lobby briefing and explained to the lobby the provisions of the Bill, as any other Government Minster of either main party will have done for the past 50 years.
In relation to the article written by the Solicitor-General, I am equally happy to confirm that that article, having been prepared by the Solicitor-General with assistance from officials, was shown to me before it went out and I demurred to any

1727
suggestion made that it was any more an attack on the noble and learned Lord, Lord McCluskey, than any articles about Government Ministers.
Lord Macaulay of Bragar: Perhaps I can interrupt the noble and learned Lord. I asked a simple question once, then twice and now a third time. Does the Minister approve of the terms of the article and does he believe it is proper for a Minister of the Crown—namely, the Solicitor-General for Scotland—to accuse a judge of playing political football? Those are two questions which require two simple answers.
Lord Mackay of Drumadoon: I did not approve the article in the sense that I was not asked to approve it. I saw it and it went out in terms which I considered to be unexceptional. It did not criticise the noble and learned Lord, Lord McCluskey, for playing political football; I regret to say that many others have had occasion to do so. I regret that as much as anybody else did, as I made clear to the House during the Second Reading. I said that I regretted the political controversy which had become associated with certain utterances and certain consultation responses of Senators of the College of Justices when taking part in a debate which I welcomed.
Lord Kirkhill: Perhaps the noble and learned Lord will give way for a moment. Would it not be more gracious for him on this occasion to acknowledge that his colleague's article was a disgrace? It was not a political disgrace taken in isolation. But it is a disgrace in this sense: the Solicitor-General is not a Member of either House and his attack on the noble and learned Lord, Lord McCluskey, was of such a character as to demean not only the reputation of himself, but of the Lord Advocate's office.
Lord Mackay of Drumadoon: I can only repeat what I said. I do not consider that it did. The Solicitor-General is not a Member of either House; he is a Member of the Government. He is perfectly prepared to speak in public and have articles published in his name. If they happen to criticise the view of a certain Senator of the College of Justices who has himself criticised government policy, then so be it. That does not demean his office; on the contrary, that is part of his office.
It is a bit of a constitutional anomaly that the Lord Advocate and the Solicitor-General who have to take an independent role in prosecutions, also have to play a part in the running of government and in the politics of government. If one was inventing a constitution, one might not give those differing and to some extent inconsistent roles to a man who has responsibility for prosecution. But that is a system we have had for generations. It is a system in which the noble and learned Lord, Lord McCluskey, took part under the last Labour Administration. I do not believe it demeans his office or my office for him to speak in public, any more than it demeans the noble and learned Lord, Lord McCluskey, as a serving judge, to speak in public if he deems it appropriate to do so.
1728
Finally, before inviting the Committee not to support this amendment, perhaps I may mention two small points raised by the noble Lord, Lord Macaulay. He said that the existence of life sentences was a quid pro quo for doing away with capital punishment. Again, with the greatest respect to the noble Lord, I disagree with that assertion. Each and every one of the qualifying offences carries with it the maximum penalty of a discretionary life sentence. As far as I recall, none of them—certainly this century—has carried with it any risk of capital punishment. So the suggestion that it was a quid pro quo which in some way is being misused by the Government is not a proposition I can accept. Finally, the noble Lord mentioned the estimates of judicial costs and accommodation. Again, I regret to say that the noble Lord misunderstands the position. The figures in the financial memorandum relate to all the provisions in the Bill, not just to Clauses 1 and 2.
Clearly, when viewed with later amendments, Amendment No. 1 is very important and I invite noble Lords to follow me into the Lobby to vote against it.
Baroness Carnegy of Lour: Before my noble and learned friend sits down, perhaps I may ask him one question. Clause 2 of this Bill is rather different from Clause 2 in the English Bill. Did I understand my noble and learned friend to say that this group of amendments would weaken Clause 2, which is the clause dealing with Class A drug trafficking repeat offences?
Lord Mackay of Drumadoon: The short answer is yes.
Lord Ackner: Before my noble and learned friend sits down, I wonder whether he can clarify a point which I am not sure that I have properly followed. In our debates on the English Bill, the noble Baroness, Lady Blatch, did not hesitate to say that the sentencing by judges in England was inadequate in regard to the matters to be the subject of the automatic minimum sentence and the automatic life sentence. She produced figures which were heavily criticised in the House and to which I diffidently referred recently in a letter to The Times. My question is this: is it said that in Scotland the judges are failing adequately to sentence? If so, what is the basis for so saying? And if so, why have there not been more applications by the Lord Advocate to put the matter right? If they are sentencing adequately, what is the need for, and the purpose of, this legislation?
Lord Mackay of Drumadoonsss: The noble and learned Lord's question raises a number of points. As he will recall, one of the clauses in the English Bill deals with the problem of repeat burglary. I may be wrong, but my recollection is that the statistics that were read out by my noble friend Lady Blatch related to the sentences in burglary cases. Again, I am grateful to my noble friend Lord Carlisle for confirming that.
The provisions on mandatory drugs offences are based on legislation which applies in both England and Scotland. The view is taken that it is appropriate

1729
to have similar sentencing provisions north and south of the Border for a statute which applies north and south of the Border. In addition, there is concern that in some instances—not a huge number—repeat mandatory drugs offenders are not receiving sentences which command public support.
As far as automatic life sentences are concerned, I have some difficulty with the noble and learned Lord's intervention because as I have said already—I do not want to repeat myself—the purpose of those sentences is to give additional safeguards to the community, and not necessarily to lead to individual offenders spending longer in prison. That was made clear in the English Bill and it is a matter of regret if that was not accepted on all sides of the House.
Lord Ackner: Perhaps I may complete the point. When we were given the statistics for England, a separate set of statistics (quite apart from those for burglary) related to serious sexual and violent offences: 217 were alleged to have occurred in 1994 and only 10 were the subject matter of life sentences. It was pointed out that the Attorney-General, who had the right and the obligation to bring such matters to the Court of Appeal, had done so in only six cases—and in none of them had he asked for a life sentence. I raise the point to discover whether there is a similar alleged dissatisfaction about inadequate sentencing because each and every one of those offences carries a potential life sentence.
4.45 p.m.
Lord Mackay of Drumadoon: To be quite frank, there is some dissatisfaction. Indeed, I commented on that at Second Reading. Since the Secretary of State for Scotland brought forward his proposals and published the consultation papers and the White Paper, it has become clear to anybody reading the newspapers or taking note of any section of the media that there is such a concern. However, as I have said, that concern can be met in a variety of ways, one of which is by the provisions set out in Clauses 1 and 2.
Lord Carlisle of Bucklow: Does my noble and learned friend the Lord Advocate realise that in his answer to my noble and learned friend Lord Ackner he said that one of the purposes of the Bill was that the Government could see advantage, in relation to Clause 2, in having similar provisions for both England and Scotland? If that is so, surely my noble and learned friend should be inviting the Committee to pass the amendment as that would then bring the Bill into line with the amendment that was passed to the English Bill. The Commons would then have the opportunity to make the same decision on both Bills rather than decide in different ways on different Bills.
Lord Macaulay of Bragar: Game, set and match!
Lord Mackay of Drumadoon: No, it is not quite game, set and match—and for reasons of which those sitting opposite are well aware. The Committee will recall that when a similar amendment to the English
1730
Bill was tabled in Committee it was not grouped with an amendment similar to Amendment No. 14. If the Government were to lose the vote on this amendment, the convention is that we would accept defeat on the subsequent amendment. That means that the Bill would end up differently from what is proposed. If there is a problem with correspondence between north and south of the Border, don't blame me!
Lord McCluskey: With respect, I think that the Committee should know that the Lord Advocate is wrong in that regard. I have the grouping paper with me. It was written in my absence, but it states:
"It is … open to any Peer to speak to an amendment in its place in the Marshalled List".
The grouping is of no significance at all; it is only a matter of convenience. Whether or not the Committee decides to pass this amendment, it is left free to pass, not to consider or not to pass Amendments Nos. 14, 15, 47 and 48. The Lord Advocate is simply wrong on that point.
Lord Mackay of Drumadoon: I think that the noble Lord, Lord Sewel, will be happy to explain that on this occasion, for once, the Lord Advocate is correct.
Lord Sewel: It may be helpful if my comments relate to Amendment No. 1 and the Bill as drafted. Following some of the comments that have been made, perhaps I should make it clear where we on this side of the Committee stand on the amendment. We have constructed and phrased Amendment No. 1 quite deliberately to achieve a purpose. That purpose is to maintain judicial discretion within the framework of an expectation of an automatic sentence. The amendment seeks to provide the right degree of discretion and the right degree of flexibility. That is the purpose and essence of Amendment No. 1 in its entirety.
I have listened very carefully to what the noble and learned Lord the Lord Advocate has said about judicial discretion as it now stands. I am in a complete fog. At one moment the noble and learned Lord appears to be saying that the view of the Solicitor-General that nothing in the Bill will reduce judicial discretion is correct and at another moment he supports the view of the Minister of State in the other place that exceptional circumstances will be construed very narrowly. I cannot resolve those two totally different positions in one compatible, coherent sentence. It is not resolved by the noble and learned Lord the Lord Advocate saying in reply to the noble and learned Lord, Lord McCluskey, that his total discretion is not taken away. What the amendment seeks to do is to give clear guidance and power to the court:
"… the court shall have regard to the specific circumstances which … relate to any of the offences or to the offender; and … make the prescribed custodial sentence unjust in all the circumstances".
That is where we stand and what we believe justice cries out for. We shall ask the Committee to support it.

1731
Much has been made of the claim of the need to ensure that the English, Welsh and Scottish legislation proceeds step by step. I believe that over the next few weeks and months we shall hear much of the value of this House as a revising Chamber for Scottish legislation. Given the precedent of the view of the House on the Crime (Sentences) Bill, I trust that the Committee will demonstrate a robust capacity to act as a revising Chamber on Scottish legislation and support the amendments. I commend the amendments to the Committee. In so doing, I move Amendment No. 1. I have listened to what the noble and learned Lord the Lord Advocate has said in relation to Amendment No. 14. I give notice that I shall not move Amendment No. 14.
4.52 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 127; Not-Contents, 138.

Division No. 1

CONTENTS

Ackner, L.

Glenamara, L.

Acton, L.

Gould of Potternewton, B.

Addington, L.

Graham of Edmonton, L. [Teller.]

Ailesburym, M.

Grey, E.

Alderdice, L.

Halsbury, E.

Aldington, L.

Hampton, L.

Archer of Sandwell, L.

Hamwee, B.

Avebury, L.

Harris of Greenwich, L.

Barnett,L.

Haskel, L.

Bath, M.

Hayman, B.

Beaumont of Whitley, L.

Hayter, L.

Berkeley, L.

Healey, L.

Blackstone, B.

Hilton of Eggardon, B.

Blease, L.

Hoffmann, L.

Broadbridge, L.

Hooson, L.

Calverley, L.

Hope of Craighead, L.

Campbell of Alloway, L.

Howell, L.

Carlisle, E.

Howie of Troon, L.

Carlisle of Bucklow, L.

Hughes, L.

Carmichael of Kelvingrove, L.

Hylton-Foster, B.

Carter, L.

Ilchester, E.

Castle of Blackburn, B.

Jay of Paddington, B.

Charteris of Amisfield, L.

Jeger, B.

Clancarty, E.

Jenkins of Hillhead, L.

Clinton-Davis, L.

Jenkins of Putney, L.

Cocks of Hartcliffe, L.

Kennet, L.

Currie of Marylebone, L.

Kirkhill, L.

Dacre of Glanton, L.

Lawrence, L.

Darcy (de Knayth), B.

Lloyd-George of Dwyfor, E.

David, B.

Lockwood, B.

Desai, L.

Lovell-Davis, L.

Donaldson of Kingsbridge, L.

Lowry, L.

Donoughue, L.

Macaulay of Bragar, L.

Dormand of Easington, L.

McCarthy, L.

Dubs, L.

McIntosh of Haringey, L.

Elis-Thomas, L.

Mackie of Benshie, L.

Ezra, L.

McNair, L.

Falkland, V.

McNally, L.

Farrington of Ribbleton, B.

Mar and Kellie, [Teller.]

Gainsborough, E.

Mason of Bamsley, L.

Gallacher, L.

Meston, L.

Geraint, L.

Milner of Leeds, L.

Gladwin of Clee, L.

Molloy, L.

1732

Monkswell, L.

Shepherd, L.

Monson, L.

Simon, V.

Morris of Castle Morris, L.

Smith of Gilmorehill, B.

Nicol, B.

Strabolgi, L.

Ogmore, L.

Strathcona and Mount Royal, L.

Palmer, L.

Swinfen, L.

Peston, L.

Taverne, L.

Ponsonby of Shulbrede, L.

Taylor of Blackburn, L.

Ramsay of Cartvale, B.

Taylor of Gryfe, L.

Rea, L.

Thomas of Gresford, L.

Redesdale, L.

Thomas of Walliswood, B.

Richard, L.

Thomson of Monifieth, L.

Robson of Kiddington, B.

Thurso, V.

Rochester, L.

Tope, L.

Rodgers of Quarry Bank, L.

Tordoff, L.

Turner of Camden, B.

Russell, E.

Waverley, V.

St John of Bletso, L

White, B.

Sefton of Garston, L.

Wigoder, L.

Sewel, L.

Williams of Elvel, L.

Shannon, E.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Gainford, L.

Addison, V.

Gardner of Parkes, B.

Ailsa, M.

Geddes, L.

Alexander of Tunis, E.

Goschen, V.

Allenby of Megiddo, V.

Granard, E.

Anelay of St Johns, B.

Gray of Contin, L.

Astor of Hever, L.

Grimston of Westbury, L.

Attlee, E.

Harding of Petherton, L.

Barber of Tewkesbury, L.

Hardinge of Penshurst, L.

Belhaven and Stenton, L.

Harlech, L.

Beloff, L.

Harmar-Nicholls, L.

Birdwood, L.

Haslam, L.

Blatch, B.

Hemphill, L.

Bowness, L

Henley, L.

Brabazon of Tara, L.

Holderness, L.

Braine of Wheatley, L.

HolmPatrick, L.

Brougham and Vaux, L

Hood, V.

Bruntisfield, L.

Hooper, B.

Buckinghamshire, E.

Howe, E.

Burnham, L.

Huntly, M.

Butterworth, L.

Kitchener, E.

Byford, B.

Lauderdale, E.

Campbell of Croy, L.

Lindsay, E.

Camegy of Lour, B.

Lindsey and Abingdon, E.

Camock, L.

Liverpool, Bp.

Chalker of Wallasey, B.

Long, V.

Chelmsford, V.

Lucas, L.

Chesham, L. [Teller.]

Lucas of Chilworth, L.

Clanwilliam, E.

Luke, L.

Clark of Kempston, L.

Lyell, L.

Clitheroe, L.

McColl of Dulwich, L.

Coleridge, L.

McConnell, L.

Courtown, E.

MacFarlane of Bearsden, L.

Cox, B.

Mackay of Ardbrecknish, L.

Craig of Radley, L.

Mackay of Clashfern, L.

Cranborne, V. [Lord Privy Seal.]

[Lord Chancellor.]

Crawshaw, L.

Mackay of Drumadoon, L.

Cumberlege, B.

Manton, L.

Davidson, V.

Marlesford, L.

Dean of Harptree, L.

Mersey, V.

Denbigh, E.

Middleton, L.

Denham, L.

Miller of Hendon, B.

Denton of Wakefield, B.

Milverton, L.

Dixon-Smith, L.

Mottistone, L.

Eccles of Moulton, B.

Mountevans, L.

Ellenborough, L.

Mowbray and Stourton, L.

Elles, B.

Munster, E.

Elliott of Morpeth, L.

Murton of Lindisfarne, L.

Erroll, E.

Northesk, E.

Ferrers, E

O'Cathain, B.

Flather, B.

Orr-Ewing, L.

Fraser of Kilmorack, L.

Oxfuird, V

1733

Pender, L.

Skelmersdale, L.

Peyton of Yeovil, L.

Soulsby of Swaffham Prior, L.

Pym, L.

Stodart of Leaston, L.

Quinton, L.

Strange, B.

Rankeillour, L.

Strathcarron, L.

Reay, L.

Strathclyde, L. [Teller.]

Rees, L.

Sudeley, L.

Renton, L.

Teviot, L.

Romney, E.

Thomas of Gwydir, L.

Rotherwick, L.

Tollemache, L.

St. Davids, V.

Trefgame, L.

St John of Fawsley, L.

Trumpington, B.

Ullswater, V.

Sandfond, L.

Vivian, L.

Sandys, L.

Wade of Chorlton, L.

Seccombe, B.

Whitelaw, V.

Selborne, E.

Wise, L.

Shaw of Northstead, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.1 p.m.
Clause 1 [Imprisonment for life on further conviction for certain offences]:
Lord McCluskey Lord McCluskey moved Amendment No. 2:
Page 1, line 16, leave out ("18") and insert ("21").
The noble and learned Lord said: As the Bill presently stands, a person who has attained the age of 18 and has a conviction in the High Court for any qualifying or relevant offence must be sent to prison for life. The purpose of the amendment is to remove the danger that we might have to send substantial numbers of young people aged between 18 and 21 to prison for life.
Let me give an example. Of course one can give many different examples. But at the moment—I have had such a case within the past 12 months—a person aged 14 or 15 can be indicted by the Lord Advocate in the High Court on a charge of rape. He may be acquitted on the charge of rape but convicted under Section 5(1); namely, of having intercourse with a girl under the age of 13; or he may be convicted in certain circumstances of lewd and libidinous practices. Such a person is then qualified for life imprisonment. As I mentioned earlier, if he then goes out and becomes involved in an ordinary pub brawl at the age of 18—these are extremely common in our modern cities, not least in Scotland—and in the course of a fight inflicts a facial wound on someone else, he may be convicted in the High Court of assault to severe injury which is a second qualifying offence. The judge is then obliged to send him to prison for life unless the circumstances are exceptional.
There is nothing exceptional about fighting in a pub in Glasgow or Dundee or, for that matter, in Edinburgh or Aberdeen. There is nothing exceptional about cutting someone's face. Some people call it the "Glasgow kiss" if one has a scar on one's face. There is nothing exceptional about it. Similarly, there is nothing exceptional about the kind of lewd and lib conviction of which I have spoken. It is not uncommon.
So one may say that this is a common enough situation. If the case is indicted in the High Court, then the judge is obliged to send that person to detention in a young offender institution, I think it is. One could have it the other way around. There might be an old
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conviction for assault to severe injury indicted and convicted in the High Court and a second for lewd and libidinous practices. Do we really despair of the possibilities of reform and rehabilitation in such a way that we must give life imprisonment to such a person, or, indeed for that matter, to almost any of these people aged 18, 19 or 20, who appear not uncommonly in our courts?
I want to ask the Lord Advocate a question. I hope that he will answer it with his customary thoroughness and precision. Who was consulted about this proposal? I have before me the White Paper entitled Crime and Punishment, published in June 1996 (Cmnd. 3302), and it does not seek consultation on this matter. The only consultation is mentioned in paragraph 17.6.1 where the Government invite comments on some of the proposal contained in the White Paper, and in that paragraph are the offences which could trigger a life sentence. So there was no suggestion of consultation on this matter.
I should like to know who was consulted; when was the consultation; and what were the responses. I should like to know whether there was any support from any outside body, whether it be the Law Society, the Faculty of Advocates, the judiciary, SACRO, the Howard League, the prison governors, the chief officers of police, or anyone, for this proposal in relation to sending 18, 19, or 20 year-olds to prison for life in the circumstances envisaged by the Bill. I beg to move.
Lord Macaulay of Bragar: This is an important amendment which has the support of this side of the Committee. It is linked with Amendment No. 3. The objective behind that amendment is to have a starting point for the Bill's operation, assuming that it ever becomes an Act, and to give some degree of certainty, if that is possible, within the context of the Bill. In due course, I shall beg to move Amendment No. 3.
The Earl of Mar and Kellie: The amendment is grouped with my Amendment No. 9 which amends the new Section 205A. I believe that 21 is too young for a mandatory life sentence to be usefully imposed. It will be counter-productive to do so. SACRO agrees with me. I must declare that I have worked for SACRO as a project officer on an intensive probation project in Falkirk, but I do not work for it now.
The differences between those aged 21 and 25 are substantial. We can accept that at the age of 25 almost everyone has achieved full adulthood, formed opinions, and must be fully culpable. The age of 22 is the average age of leaving home in Scotland; and the age of 25 is when one becomes a mature student. In a survey I carried out as a prison social worker I noted that the average age of people convicted in Inverness prison was 25. Therefore half the Scottish population was younger than 25 at the point of conviction. In particular the assertion that most prisoners are younger than 25 at the point of conviction suggests strongly that criminal behaviour is grown out of. Doubt can be sown in an offender's mind about the downside to his or her offending behaviour. Too much will be lost. This is straightforwardly a cost benefit analysis, and it tends to work. Many young offenders are successfully enabled to

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reduce their offending through support and counselling. Addressing their offending behaviour and its often appalling consequences is the real task.
Research suggests that the longer a young offender is kept out of prison, the less likely it is that offending will continue beyond the age of maturity. The contamination effect of imprisonment is usually counter-productive and all-pervasive. Imprisonment delays the progress of the next phase of an individual's maturity. I hope that Members of the Committee will support my Amendment No. 9.
Baroness Carnegy of Lour: I should like to say a few words about Amendment No. 3. The noble Lord, Lord Macaulay, did less than justice to that amendment, which comes from the Law Society of Scotland and makes an interesting point. It suggests that in that respect, the Bill is retrospective legislation because people become liable to a penalty because of an offence which was committed before the Bill was enacted. At a slightly different level, that reminds me of the War Crimes Act. I shall be interested to hear what my noble and learned friend has to say on that. I am sure that he will be aware of the Law Society of Scotland's anxieties about that issue. I do not know why the noble Lord, Lord Macaulay, did not speak to the amendment but he did not and I felt that I should mention it.
As regards the age of offenders, again, I shall be interested to hear my noble and learned friend's reply. We shall be keen to make up our minds about what is right in that regard when we have heard from my noble and learned friend.
Lord Sewel: I too should like to speak to Amendments Nos. 3 and 41. The noble Baroness, Lady Carnegy, anticipated my contribution. These amendments seek to deal with the apparent problem of retrospection. Clearly there is a difficulty if an offence and conviction is recorded at some significant time in the past under a totally different sentencing regime and a different climate and then in the future, when the other triggering offence is committed, that old offence, as I say committed under a totally different sentencing regime, is then brought into account.
Therefore, Amendments Nos. 3 and 41 seek to remove the possibility of automatic mandatory sentences being applied where the initial offence took place before 1st January 1998. That deals with the problem of retrospection and I hope that the Committee will support the amendment.
5.15 p.m.
Lord Mackay of Drumadoon: As Members of the Committee will appreciate, many of the points which arise on this series of amendments were discussed in some detail in Committee in another place. But they raised important concerns and I am happy to address them again.
Clearly, the Bill sets one set of ages for which the automatic provisions would not apply. There is a difference between us as to what that age should be.
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Amendment No. 2 and the consequential Amendment No. 10 seek to increase the minimum age from 18 to 21 years. The Government believe that 18 is an appropriate lower age limit and I shall explain why in a few moments. Indeed, arguments were considered for setting the limit at the lower age of 16 but they were rejected because children up to the age of 16 are dealt with mostly by the children's hearings system and only the very few who commit the most serious offences are ever prosecuted in the criminal courts. Therefore, that is one substantial argument to be borne in mind.
Another reason is that persons up to the age of 18 can be subject to supervision requirements under the children's hearings provisions. Therefore, the Government propose that that should be the lower limit at which the commission of an offence will trigger an automatic life sentence. Your Lordships will wish to bear in mind that those provisions will apply only to those who have already been convicted in the High Court of a qualifying offence and who have served any custodial sentence imposed before there is an opportunity to re-offend. Therefore, the provisions are unlikely to apply to many people at the age of just 18.
To go further and limit the age at which a second or further relevant offence can be committed to the age of 21 would disapply the provisions to those who are most frequently involved in criminal activity. Statistics indicate that the peak age for offending is about 18 to 19 years of age.
The Government believe that it is entirely reasonable to expect persons of 18 years and above to appreciate the consequences of their actions and to be held fully responsible for re-offending which involves serious sexual and violent offences which justify prosecution in the High Court. Someone who has shown himself capable of such serious re-offending can present just as great a risk to the public as a person aged 21 or over. The public expect to be protected from such individuals.
The other amendments to Clause 1 seek to go much further than that by wiping away an offender's record prior to the age of 21 years. Those amendments would mean that only offences committed after the offender had reached the age of 21 would count for the purposes of the automatic life provisions.
It is not clear whether the noble and learned Lord, Lord McCluskey, means to provide that only offences committed after the provisions had come into force should count or not. Amendment No. 7 leaves in the proviso that it does not matter whether previous offences were committed before or after the coming into force of these provision, whereas Amendment No. 6 deletes that clarificatory part of the text and leaves the position unclear. Amendment No. 3 provides that only convictions obtained on or after 1st January 1998 will be relevant.
The amendment in the name of the noble Earl, Lord Mar and Kellie, is rather curious as it prevents the High Court from passing a sentence of imprisonment for life on an offender who otherwise qualifies for an automatic life sentence unless he has attained the age of 25 years. It does not change the part of Clause 1 that requires the court to pass a sentence of detention for life on a

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qualifying offender who is either aged 18 or over but is under 21 years. The offender aged between 21 and 24 who is convicted for a second time of a serious sexual or violent offence committed between the ages of 21 and 25 would therefore be left in a sentencing limbo.
In respect of the provisions in Clause 2 for a minimum sentence of seven years' imprisonment for repeated drug trafficking offences, Amendment No. 42 seeks to create a similar restriction. The amendment would allow the court to ignore any convictions obtained prior to the commencement of this clause which the offender might have for a Class A drug trafficking offence.
Amendment No. 41 would have the effect that the third conviction would have to be obtained on or after 1st January 1998. As such, I am not clear what helpful purpose that is intended to achieve. It may be that its intended effect is that previous convictions should qualify only if they have been obtained on or after that date. If that is the case, I should have to resist it for the same reasons that I am resisting Amendment No. 42.
The Bill as it stands provides that convictions for appropriate offences may count as qualifying convictions for the purposes of automatic life or minimum sentences irrespective of the age of the offender at the time when he committed the offence in question and irrespective of the date of commission. However, none of the mandatory penalties can be imposed unless the offender was aged 18 years or more when he committed the final qualifying offence.
Members of the Committee may argue that these proposals are unfair because they contain an element of retrospection and that, what an offender has done, no matter how serious, before he or she is 21, should be ignored. I cannot agree. We are not talking about retrospection in the true sense. When these provisions come into force, everyone who has a previous qualifying conviction will be put on notice that any further offending could result in an automatic sentence, in the event of conviction and in the event of "exceptional circumstances" not being established. There has to be further offending on behalf of the offender before the provisions can apply. If an offender keeps out of trouble, he will not be affected by the provisions of the Bill to any extent.
I believe that it would also be helpful to consider the implications of the amendments. As we have already discussed, Clause 1 covers serious sexual and violent offences, while Clause 2 deals with persistent serious drug traffickers. The Government do not propose that an automatic sentence should be imposed on an offender who is under 18, but if, for example, a juvenile rapes as a 16 or 17 year-old, or is convicted of one of the other serious violent or sexual offences set out in the schedule and then commits another rape or another similar offence when he is 18 years or over, we believe that an automatic life sentence should be imposed for the protection of the public. The part which has to be served for punishment and deterrence is for the judge to decide. He may be open to argument that it should be lower than if the offender were an older person. However, that would be a matter for the judge to decide in the light of all the information placed before him.
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The purpose of Clause 1 is to ensure that offenders of 18 or over who have been convicted for at least the second time of a serious sexual or violent offence are not released from custody until the Parole Board is satisfied that it is safe to do so. It also seeks to ensure that, when offenders are released from custody, they are subject to life licence supervision to make sure that they do not re-offend. On that basis, it seems to the Government that the offender's age or the date on which the first offence is committed should not require to be above 18, let alone above 21. I hope, therefore, that Members of the Committee will not seek to press their amendments.
The noble and learned Lord, Lord McCluskey, asked me a question about the issue of consultation and invited me to give him a full reply. I suspect that the noble and learned Lord is aware of the history of events as well as anyone else in the Chamber. He will no doubt be aware of the terms of the consultation paper which did not mention the issue of automatic life sentences. Indeed, he drew attention to the fact that no invitation was sought in the White Paper for consultation responses on that issue.
The Government have never shirked from accepting that their decision to adopt this policy was not one that was set out in the original consultation paper. They do not shirk from accepting that the White Paper did not specifically ask for consultation responses, although I have to say that it received a number including, as I recollect, one from the noble and learned Lord. Although I do not have all the relevant details with me today, it is correct to say that those who sent in responses did not all offer their support.
As I understand it, the noble and learned Lord's question proceeds on the premise that before a government can bring forward policies in legislation and seek to have that legislation approved before Parliament, they must have consulted in detailed. Obviously, if a government have consulted in detail and have wide-ranging support, that may assist them with the Bill's passage through Parliament. However, the Government do not suggest that that is so in this case. We suggest that the proposals were put before another place and, as I made clear on Second Reading, they received support there.
In my submission, every government is entitled to do that. That is what the Government are doing with the present proposals. It is open for noble Lords on all sides of the Committee to criticise the proposals if they wish to do so. However, the Government stand by them and invite Members of the Committee to have regard not only to what has been said in this Chamber but also to have regard to the extent to which the proposals have received support elsewhere.
I believe that I dealt with the problem of retrospection which the noble Lord, Lord Sewel, raised and that may leave only the question raised by my noble friend Lady Carnegy. However, I hope that what I said earlier means that I have fully answered her query. If not, no doubt

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my noble friend will write to me and we can proceed further. Having said that, I invite Members of the Committee to reject Amendment No. 2.
The Earl of Mar and Kellie: Before the Minister sits down, perhaps I may say that I agree with him in that I did leave out a consequential amendment which is necessary to make sense of Amendment No. 9. Having said that, perhaps I may return to the helpful remarks that the noble and learned Lord made about notifying the 3,300 qualifying offenders. Can the noble and learned Lord tell the Committee to what lengths the Government will go to notify those people; for example, will they do so by letters to the last known addresses of such offenders, will it be by newspaper advertising campaigns, or what? Perhaps the Minister can help us in that respect.
Lord Mackay of Drumadoon: The noble Earl has made an interesting suggestion. I must confess that we had not thought of sending recorded delivery letters to each and every one of them. I suspect that advertising in newspapers is unnecessary because if anyone reads newspapers in Scotland and is liable to read an advertisement, he or she will certainly have read the vast coverage that the proposals have attracted. In the fullness of time, when the individual sections of the Act are brought into force, I have no doubt that similar press attention will be focused upon them. However, it might be imprudent for me to speculate as to whether that would be generated by articles written by individuals.
Lord McCluskey: As I have already indicated, I have no responsibility for the grouping of the amendments. I find the question of retrospection to be a separate one. Therefore, I propose to deal with it separately in relation to another amendment. However, at this stage, I shall say only that the noble and learned Lord the Lord Advocate is perfectly correct to say that there are people who are now at risk—that is, the 3,300 that were specified in the Written Answer.
Those people are facing a "one strike and you are out" situation. We are familiar from California and from about 35 or 36 other states in the USA with "three strikes and you are out", but these people are facing just one strike. I do not suppose too many of them study closely articles written by law officers in the Herald and I do not suppose that many of them would have picked up the fact that they are at risk. Nevertheless, they will find out when they engage in a fight in a pub and cut someone's face and thereby stand at risk of being convicted of assault to severe injury.
Of course the noble and learned Lord the Lord Advocate is right to say that very few young people are indicted in the High Court, but some are. I, myself, have presided over three such trials within the past two or three years. It may well be, and it commonly is, that a person indicted for one trial in the High Court is not convicted of that crime but is convicted of a lesser one. For example, if you are indicted for the crime set out in paragraph 3 of Schedule 5A to Section 205A—namely, "rape or attempted rape"—you can be convicted of an
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offence under Section 5(1) of the Act. Alternatively, you might be convicted of assault to severe injury in certain circumstances. Therefore, you can get a conviction in the High Court, although you would not normally be sent there for that type of offence. Therefore many people are at risk.
On the question of retrospection at the present time—this was true when I was in practice in the courts—it did not matter all that much whether one pleaded guilty to assault to severe injury or assault to injury because the judge had the medical report in front of him and he had the photographs. One might take the word "severe" out, or one might not. One might prefer to leave it in and take out the words "permanent disfigurement" or some such other modification. Many people were advised to plead guilty to charges of the kind that are now listed in the schedule. They would never have dreamt of pleading guilty to those charges if they had known they would be qualifying offences for the purposes of what is to be new Section 205A. Undoubtedly there is an element of retrospection.
The noble and learned Lord the Lord Advocate has made it plain—as he intends to do today—that no one was consulted. Of course I know the history; the history is well known to everyone, including those who, like myself, have read the proceedings in the other place. Several weeks before these announcements were made the Secretary of State for Scotland said that he did not believe in mandatory sentencing. Then there was the tragic case of Mhairi Julyan where the girl was murdered by a man who had been released shortly beforehand by the then Lord Advocate because he thought there was insufficient evidence against him. He had previously been released under certain provisions which obtained before the 1993 Act. As I understand it, that caused such an outrage that the Secretary of State for Scotland announced, without consulting anyone, that he intended to introduce this provision. I hope the noble and learned Lord the Lord Advocate, who is frowning, will be able to confirm that that is so.
5.30 p.m.
Lord Mackay of Drumadoon: It might be of assistance to the Committee if the noble and learned Lord gave full details of the record of the individual concerned, and referred in particular to the fact that he had been convicted twice for rape. He received 10 years for the first rape and 10 years for the second rape. That might be of some assistance to the Committee in considering the merits or otherwise of the proposals which are encapsulated in Clause 1 of the Bill.
Lord McCluskey: Of course I am entirely in agreement with the noble and learned Lord that that was an appalling case and that it involved an appalling person. He received two sentences of 10 years' imprisonment for rapes. He should never have come out. However, I am saying that it was that one case which prompted the Secretary of State for Scotland to announce this measure. He did not consult anyone. As far as I know, he did not consult the police or the Parole Board. It is the Parole Board, incidentally, which is given the responsibility nowadays of saying whether it

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is safe to let a person out. Just think of that responsibility. Every time the Parole Board is faced with a violent prisoner who has been sentenced to life imprisonment under the provisions of this clause, it will have to decide whether it is safe to let him out. If it lets him out, and if he then commits another appalling crime—as some of them inevitably will—the Parole Board will get the blame. I should have thought it would be sensible to consult the Parole Board as to whether or not it had any mechanism or means whereby it could predict the future behaviour of persons who had been in prison for 10 or 12 years under a provision of the kind we are discussing.
The point that I have consistently sought to make is that the criminal justice system of Scotland has had, as one of its principles—endorsed not just by Baron Hume, as I said in my Second Reading speech, but by the previous Secretary of State, Mr. Ian Lang—the principle that judges should be accorded judicial discretion. The decision to revolutionise that system was taken by one man on the basis of one terribly tragic and hard case. It is a clear example that hard cases can make bad law. As far as I am aware, this has not been supported by anyone. The noble and learned Lord the Lord Advocate unfortunately did not have the responses to hand. I have most of them here. He said that the responses did not strongly support the Government, or words to that effect. I wonder whether there was any support at all for this provision which is the subject matter of this amendment, or whether there was any consultation with the Parole Board, or with anyone else.
Perhaps the Committee would care to read the Scottish White Paper which states that the Government consulted about this and that. Paragraph 8.3 states:
"However the Government considers that more needs to be done … the Government therefore proposes that, where an offender is convicted in the High Court of a serious violent or sexual offence and has a previous conviction for a similar offence, the court should be required to impose a life sentence".
The Government sought no consultation on that. Such consultation as was offered received a negative response from the likes of me and the Government have pressed on with it just the same. That is not the way to alter the criminal justice system of the country, and particularly at a time such as the present when unfortunately the criminal justice system gets dragged into the political arena and people adopt strange attitudes to it. I beg to move.
On Question, amendment negatived.
[Amendment No. 3 not moved.]
Lord Macaulay of Bragar: I am grateful for the explanation given by the noble and learned Lord the Lord Advocate. I am not quite sure that I followed the explanation. I shall read with interest what he has said and perhaps return at another stage if I think that necessary.
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 4:
Page 2, line I, leave out ("or for any relevant offence").
The noble and learned Lord said: This amendment is concerned with an important point which was raised by my noble and learned friend Lord Hope of Craighead. It appears to me to be the subject of an amendment by the Government—Amendment No. 38. Accordingly, it is a matter which I think might be better dealt with at a later stage. I simply included this as a probing amendment. However, I take that word as an invitation to myself to say one thing. The noble and learned Lord the Lord Advocate quite rightly points out that my amendments are in some instances defective in the matter of draftsmanship. I confess to that; I am almost proud of the fact that I am not a good draftsman. However, I certainly do not table amendments in the hope that they can be accepted in that state. I table them to discover the Government's thinking and to probe what the Bill is about. If the Committee persuades the Government, or the Government accept that an amendment is in principle sound, I trust that the numerous draftsmen who sit somewhere to the left or behind—when I say left, there is nothing significant about that—the noble and learned Lord the Lord Advocate will assist him to produce a better result than I could possibly do.
There is one other point. When I asked my question about the number of people who had a previous conviction which included a qualifying offence as defined under Clause 1 of the Bill—or new Section 205A of the 1995 Act—the answer, as I said, was 3,300. Has the noble and learned Lord the Lord Advocate any information about how many people have been convicted of a relevant offence in England or Northern Ireland who also qualify, so as to bring the numbers up to around 15,000? I shall return to this amendment when we discuss Amendment No. 38. I shall not move the amendment.
[Amendment No. 4 not moved.]
[Amendments Nos. 5 to 7 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 8:
Page 2, line 8, leave out ("shall") and insert ("may").
The noble and learned Lord said: This amendment raises again the question of removal of discretion. There is a danger that those who do not read the Bill but simply read press reports or articles written by various people about what the Bill contains may not fully understand what the Bill contains.
Paragraph 8.4 of the White Paper which I have already quoted states that,
"The Government therefore proposes that, where an offender is convicted in the High Court of a serious violent or sexual offence and has a previous conviction for a similar offence, the court should be required to impose a life sentence".
The Explanatory Memorandum of the Bill states:
"Clause 1 requires the High Court of Justiciary to impose a sentence of life imprisonment on an offender who commits a qualifying serious sexual or violent offence where the offender has been previously convicted on indictment in that court for such an offence or been convicted for a similar offence elsewhere in the United Kingdom".
I believe that there is a danger that people reading that, or some report of it in the newspaper, might suppose that in terms of that section in order to be qualified to

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be sent to prison for life, one must commit a second offence which is cognate with the first. I hope that the Government will take this opportunity to make it plain that the meaning of the Bill, and of the 1995 Act once amended, is that any person who commits any one of the 19 or so different offences listed as qualifying offences, and has already a conviction for any of them or certain other offences listed as relevant offences, will be liable to be sent to prison for life, and the offences need not be cognate.
My noble and learned friend Lord Ackner asked the Government whether sentences for such offences were regarded as inadequate. I know of no evidence that inadequate sentences are being imposed in the High Court by judges of the High Court in respect of such cases. Of course there are one or two cases in which the judge takes the view that he should exercise a degree of leniency which the Lord Advocate thinks unduly great. Those cases can be, and are, taken back to the court. We have heard the statistics. The court sometimes agrees and sometimes does not agree with that suggestion. That is a perfectly sensible route to ensure reasonable consistency and the right degree of severity.
If the Government think that the word "unduly" in the present statute gives them too high a hurdle to cross, they can choose another word and bring more cases to the attention of the Court of Criminal Appeal. I do not believe that the noble and learned Lord the Lord Advocate could criticise the Court of Criminal Appeal for being unduly lenient in any of the cases. I do not understand the problem that is being met by the provisions of the Bill. Accordingly, I seek to move the amendment which prevents the introduction of mandatory sentencing and enables the High Court judge to exercise his discretion. I beg to move.
The Earl of Mar and Kellie: My amendments, Amendments Nos. 16 and 49, are fairly similar and are grouped with Amendment No. 8.
Amendment No. 16 amends the new Section 205A(3); and Amendment No. 49 amends the new Section 205B(3). The purpose is to ensure that discretion in justice remains a central tenet of the Scottish criminal justice system. Once again I find myself in agreement with SACRO on this matter. I assert that it would run counter to the principles of justice to require an automatic sentence of life imprisonment without all the circumstances of the offence and offender being taken into account.
During deliberations on the first amendment, it struck me that we need to define the word "exceptional". We have had suggestions that "exceptional" provides an extremely tight and rare distinction; and that it offers all the discretion that judges already have. I can see that at a later stage we must suggest a proper definition of exceptional—and that will no doubt take up an hour or so.
As amended, the Bill will allow, and indeed encourage, the courts to pass more life sentences for a wider range of second or repeat offences. I do not have a problem with that. However, I believe that judges should
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retain discretionary powers on these extended sentences. I assert that little will be served by meeting one injustice with another.
5.45 p.m.
Lord Mackay of Drumadoon: The Committee will appreciate that the amendments moved by the noble and learned Lord, Lord McCluskey, and spoken to by the noble Earl, Lord Mar and Kellie, are grouped with other amendments. However, I take it from the silence that we shall come to those amendments in due course. If not, it might be helpful to be corrected.
Lord McCluskey: Perhaps I may explain to the noble and learned Lord that in this Committee one can move one amendment, and one amendment only, at a time. The grouping is to indicate informally to Members of the Committee that those amendments could usefully be discussed together. However, it is not a grouping which has my support in the sense that no one asked me for it and I cannot make sense of the grouping produced at 2 p.m. this afternoon, some time after I arrived from Edinburgh. The amendments must be voted upon or put to the Chamber one at a time.
Baroness Carnegy of Lour: The noble and learned Lord, Lord McCluskey, has been in the House for a much longer period than I have, although I have attended here for some time. However, it is for the convenience of the Committee either to operate the groupings, or for any noble Lord who wishes an exception to that, to say precisely what he or she is doing so that we all know what we are talking about. We have had already one or two muddles. I have some difficulty in following which amendments people are speaking to. If we can follow the groupings, it is helpful. But where the subjects are different—the noble and learned Lord apparently was not involved in the decision—I am sure that the Committee is willing to discuss the amendments separately. But to expedite business it helps to operate the groupings whenever possible.
Lord Mackay of Drumadoon: It is sometimes enough to understand the intricacies of the legislation before the House without descending into the intricacies of the usual channels. If I have misunderstood the position which I had understood was for the convenience of your Lordships, I apologise to the Committee.
I deal, therefore, with Amendments Nos. 8 and 13, to which I understand the noble and learned Lord, Lord McCluskey, spoke, and Amendments Nos. 16 and 49 to which I understand that the noble Earl spoke.
The Government's view is that Amendments Nos. 8 and 13 would simply state in a roundabout and complicated way what the High Court is already able to do: that is to impose a discretionary life sentence following on a conviction for one of the listed serious sexual or violent offences set out in the schedule. As I have already indicated to the Committee, all of those offences attract a maximum penalty of life

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imprisonment on conviction, whether as common law offences or as statutory offences, irrespective of the existence or otherwise of any previous conviction.
The purpose of Clause 1 is to establish, as we have already discussed, that life should be an automatic sentence imposed for repeat offenders. Removing the obligation to impose a life sentence would mean that such offenders might receive a determinate sentence at the end of which they would require to be released, as happened in the case referred to by the noble and learned Lord, Lord McCluskey, regardless of whether they posed a threat to the public.
I was slightly surprised to listen to the detail of the criticism the noble and learned Lord made about the lack of consultation with the Parole Board. I can well see the force of the argument about consulting with the Parole Board as to whether it believes automatic life sentences are a good thing or not. But to consult the Parole Board as to whether it has procedures by which it can assess whether or not it is safe to release an offender into the community is to ask a question that is unnecessary. That is what the Parole Board does at the moment. "Risk assessment", as it was somewhat curiously referred to during discussions on the English Bill, is what the board is about in that part of its duties. By procedures which will be well-known to the noble and learned Lord, the board goes about building up a picture of an individual offender, by obtaining reports from various people, by a Parole Board member interviewing the offender possibly on a number of occasions, and amassing information upon which to carry out a risk assessment. That is why the Government believe that this "first safeguard", as I referred to it, is a valid one, because it would involve the Parole Board applying a check that it currently has to apply in other circumstances.
Removing the obligation to impose a life sentence would deprive society of that further check. If the check is there, release would not take place until the Parole Board is satisfied that a particular offender no longer poses a threat to society. In addition, there will be the continuing supervision to which, again, I have already referred.
I remind Members of the Committee that Section 2(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 sets down the current statutory position, to the effect that the Parole Board requires to be,
"satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined,"
before issuing a direction to the Secretary of State that the Secretary of State should order the release of the individual.
I turn briefly to the amendments tabled by the noble Earl, Lord Mar and Kellie. These, as I understand them, are consequential amendments which seek to replace the court's obligation to impose the automatic sentences set out in Clauses 1 and 2. On that basis, I am sure the noble Earl will agree that I have probably said enough to explain why they are unacceptable to the Government.
Lord Hope of Craighead: Before the noble and learned Lord sits down, perhaps he will help me on a
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point touched upon by the noble and learned Lord, Lord McCluskey, relating to the explanation for the decision to introduce this whole range of mandatory life sentences. As I understood the explanation given, it was that the decision was a reaction to a tragic case involving the crime of rape. I could understand the decision if it had concentrated on the problem raised by that particular case. Indeed, I think I could understand it if the list had been kept comparatively short and dealt with other cases that have caused concern in the past, cases where culpable homicide has been committed on two separate occasions by the same offender. The point I have always found very difficult to understand is why it was decided to expand the list to such an extraordinary extent.
I use the word "extraordinary" because two features come to mind. The first is that it looks very like an attempt to copy, word for word, the list that is given in the English Bill, the Crime (Sentences) Bill, although the wording has had to be changed to accommodate the differences between crimes north and south of the Border. That is the first characteristic which I find not particularly attractive, given that it is the only reason advanced so far for the decision to place this measure before the Committee. Secondly, our list of offences has expanded as time has gone on in a way that has not been reproduced in the English legislation.
The feature that causes me some concern and to which I shall return later is the need to expand the list to create a sensible structure upon which the whole sentencing practice of the court can proceed. It strikes me as a matter that merited more careful thought—which so far as I am aware the whole subject did not receive—before the announcement was made that this was a policy that the Government proposed to follow. Can the noble and learned Lord the Lord Advocate help me by explaining whether there was any cause other than that one case, which we all accept was so tragic, which led to the decision to take the matter to the extent now before us in the Bill?
Lord Mackay of Drumadoon: I assure the Committee that the issue was given full consideration within government. I am sure that the noble and learned Lord would not expect me to divulge the full extent of the detail of discussion that took place. However, I assure him that the decision was not, as the noble and learned Lord, Lord McCluskey, took it to be, the decision of one man, namely the Secretary of State, on the basis of one case, which admittedly was a very serious one and which, as Members of the Committee will accept, falls fairly and squarely within the problem that one seeks to address. It was a decision of government, taking the advice of all those who contribute to the decisions of government. It came along after the Maguire case became public. I wish to dispel any suggestion that it was just the result of a rush of blood to the head of the Secretary of State in the light of matters of which he became aware when the case became public and of media attention to that individual case.

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The English proposals had been around for some time and had been considered by government. People were addressing their minds to this issue. Noble Lords may not accept that, but it cannot be disputed that the issue of the automatic life sentence had been considered by government for many months before the Maguire case. The Government took the view that this policy should be encapsulated in Clause 1.
Earlier, I was quite frank in saying that there was not the detailed consultation that many noble Lords and noble and learned Lords would have liked. But there it is. The view is that when we are dealing with repeat offenders who commit serious sexual and violent offences, this is the route that should be followed and it should not be limited to those who commit rape but should cover the broader range of offences set out as qualifying offences—and as "relevant" offences in an amendment that we shall debate in due course.
Having listened to numerous urgent debates on the English Bill and not a few hours on this Bill, I know that no matter how long I talk I shall not convince every Member of the Committee to share the Government's views. However, they were set out in the legislation and were put through another place, where they attracted—I am sorry for reminding noble Lords opposite—a measure of support. That is the basis on which they are brought before this place.
Regarding the matter of the list being longer or, in the words used by the noble and learned Lord, extraordinarily wide, I think he will be the first to admit that to some extent he has contributed to the process, and I fully appreciate why he did so. Obviously, having established the policy that convictions for serious violent and sexual offences in England should have an effect on subsequent convictions in Scotland and the other way round, one looks for as much similarity as one can achieve. It is not possible to construct lists which are a precise mirror image of each other. I hope that, when we come to discuss the detailed amendments setting out the provisions covering qualifying offences and relevant offences, Members of the Committee will be satisfied that the Government's proposals, both in the Bill as currently drafted and in the amendments which I shall move later, achieve as high a degree of mirror image—if that is a correct analogy—as possible. If not, no doubt we can look at that when we come to the amendments. I hope that that answers the point raised by the noble Lord as to why the list is not restricted to rape and culpable homicide.
6 p.m.
Lord Hughes: I am interested in Amendment No. 8. Over many years in this House I cannot remember ever seeing an amendment to replace the word "shall" by the word "may"; but there have been innumerable occasions when it has been moved that the word "may" should be replaced by the word "shall". The Government have always argued that from a legislative point of view the word "may" can include the word "shall". Are we to have a new definition to the effect that the word "shall" cannot include the word "may" but the word "may" can
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include the word "shall"? Is the meaning of the words "may" and "shall" now to be definitely decided in the way that ordinary people would regard it and not from the point of view of a legislative quirk?
Lord Mackay of Drumadoon: What is being decided, as I am sure the noble Lord knows well, is how these words would fall to be construed in the Bill. There can be little doubt that the noble and learned Lord, Lord McCluskey, would not move this amendment unless he, as a senator of the College of Justice, anticipates the possibility—to put it no higher—that he and his colleagues would construe the word "shall" in a different way to that in which they would construe the word "may" in the Bill were it become law. What he might do in other legislation is no doubt something that he and I could discuss on different sides of the Bar on another occasion.
Lord Macaulay of Bragar: Perhaps I may take up two points arising out of these amendments. To take up the point made by the noble Lord, Lord Hughes, in Clause 1(3) the word "may" appears twice, which appears to give discretion. As I understand it, the noble and learned Lord, Lord McCluskey, wants to replace the word "shall" in subsection (2) with the word "may". It would appear that, for the sake of consistency at least, the word "may" should be the common thread throughout subsections (2) and (3). I do not know whether that appeals to the noble and learned Lord the Lord Advocate or not. Why should the word "may" appear in Clause 1(3) and the word "shall" appear in Clause 1(2)? Perhaps he will consider the point and we can deal with it at another stage.
Amendment No. 38 has been grouped with the present group of amendments. For the avoidance of doubt, will the noble and learned Lord, the Lord Advocate make it clear that we shall have a discussion on Amendment No. 38 in due course? We have been rather floating about between amendments in the discussion. Maybe I have it wrong, but can we have a guarantee that in due course we shall discuss Amendment No. 38?
Lord Mackay of Drumadoon: Yes. The noble Lord raises an understandable concern that we have not discussed Amendment No. 38. The original proposal was that we would discuss it in the group beginning with Amendment No. 4; we did not do so. We shall return to it later, as I understand it. We are currently discussing a group which begins with Amendment No. 8 but, for reasons we have discussed, it has been limited in scope. However, it has never included Amendment No. 38, so now is not the time to discuss that amendment.
Lord McCluskey: If I may, I shall explain to the noble Lord, Lord Hughes, that in this instance the substitution of the word "may" for the word "shall" is crucial. The word "shall" means that judges are required to impose the sentence specified in the clause. If one replaces the word "shall" with the word "may" it means that they may impose a life sentence but they do not have to do so. The substitution is crucial in this case.

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So far as concerns the Parole Board, the Lord Advocate correctly referred the Committee to Section 2(5)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, but I am afraid that for a proper understanding one needs to look at the preceding section. Section 2(5)(b) says that the Parole Board shall not give a direction to the Secretary of State to release a discretionary life prisoner unless:
"the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should he confined".
The Parole Board has a duty under the 1993 Act to consider the question as to the necessity for the protection of the public if the prisoner is confined or released. But subsection (4) provides that:
"Where this subsection applies, the Secretary of State shall, if directed by the Parole Board, release a discretionary life prisoner on licence".
Subsection (5) provides that:
"The Parole Board shall not give a direction under subsection (4) above unless—
(a) the Secretary of State has referred the prisoner's case to the Board".
The man who starts the process is the Secretary of State. He requires the Parole Board to consider the matter and, if it makes a judgment about safety favourable to the prisoner, it tells the Secretary of State that he has to release him.
Under this Bill the Secretary of State neatly disappears from the scene and the entire responsibility is landed on the Parole Board. When the period of time prescribed by the judge under the Act has passed, the Parole Board is required to decide whether the person can be released and, if something goes wrong, the Secretary of State can always say, "It wasn't me".
In relation to the consultations that take place within the Government, not only do I not wish to know about them but I shudder to think what effect they would have upon my delicate constitution. I have been a close student of the Secretary of State's pronouncements on the matter and I quote from his speech on the 24th April 1996 to the Scottish Police Federation conference in Peebles:
"Parliament decrees, by statute, the norms of sentencing for crimes. Even in those instances where sheriffs and judges pass sentences whose leniency provokes public outrage, it is Parliament which awarded them the discretion. It is Parliament's right—and duty—to qualify or remove that discretion when public opinion has been persistently scandalised".
That means that by the 24th April the Secretary of State had formed the view that judges in Scotland were exercising such leniency that they were provoking public outrage and persistently scandalising the public. It was in that state of mind that he reacted to the Mhairi Julyan case in June by announcing the present proposals.
The important thing about the reform of criminal justice is that hitherto Parliament largely stayed out of the reform of criminal justice in Scotland until 1980. There were hardly any Acts of Parliament on the subject—very few to do with procedure and some, but not many, to do with imprisonment and sentencing policy. Parliament has now stepped into this matter on a very considerable scale. Since Parliament stepped in,
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it has been the invariable practice to consult extremely widely, preferably through the mechanism of a committee like the Kincraig committee. That committee sat for a very long time. Like the noble Lord, Lord Carlisle of Bucklow's committee, it took a lot of evidence and then made recommendations which the Government in part accepted and in part modified. It is that process which has been departed from, which has given rise to such disquiet about the Bill.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, I point out that my understanding of the correct construction of Section 2 of the 1993 Act does not conform to that explained to the Committee by the noble and learned Lord. It is a complicated matter about which I shall be happy to write to the noble and learned Lord in due course.
However, my understanding is that to comply with the requirements of the European Convention on Human Rights, the Government have had to set up a tribunal, chaired by a judicial member of the Parole Board, to which all discretionary life sentences have to be referred once the determinate part has been served. It is not at the discretion of the Parole Board or the discretion of the Secretary of State when these individual cases come before the judicial tribunal. I am happy to perceive a nod on the part of the noble and learned Lord, Lord Hope of Craighead, which I hope is one which supports my understanding of the law, which I accept is a somewhat complicated area.
Lord Hope of Craighead: It might assist the noble and learned Lord if I say that the whole thrust of that section was to judicialise the process in the light of the decision to which he referred. The Parole Board has among its members judicial members who fulfil that very function. As I understand Section 2 of that Act, and indeed the amendment to the law which is proposed, the Secretary of State has no function; each step in the whole process of the administration of the life sentence is administered either by a decision by a judge or taken in a manner which is properly described as a judicial manner.
Lord Mackay of Drumadoon: Before the noble and learned Lord, Lord Hope, sits down, is he happy to confirm my understanding of the law that once the determinate period has been served, the prisoner has the right to have his case brought before this tribunal, even though the tribunal has a discretion under Section 2(5)(b) of the Act not to be satisfied that the time has come to release the offender.
Lord Hope of Craighead: That is precisely my understanding. The whole point of the determinate part of the sentence is to fix a period which, as it were, freezes the position; but once that period has been served, there is a right to have the matter considered judicially by the Parole Board.
Lord McCluskey: I shall be happy to receive the letter that the noble and learned Lord, the Lord Advocate has promised me. No doubt that is the law

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but it does not spring off the page in Section 2 of the 1993 Act. My purpose is not to divide the Committee on a matter of this kind. In fact, I indicate that it is not my intention to divide the Committee at all. In the 12 years since I became a judge, I have never voted in this House in Committee, and I do not intend to do so tonight. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 and 10 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 11
Page 2, line 14, at end insert—
("( ) Notwithstanding subsection (2) above, it shall not be competent for a temporary Lord Commissioner of Justiciary in Scotland to impose a sentence under this section or to preside at a trial of a person on indictment in the High Court in respect of a qualifying offence to which subsection (1) applies.").
The noble and learned Lord said: This amendment deals with an entirely different matter. It is a matter upon which I hope the Committee will have the benefit of the advice of my noble and learned friend Lord Hope of Craighead. Members of the Committee will see from the wording of the amendment that there is reference to a temporary Lord Commissioner of Justiciary in Scotland. Since 1990 a number of people have been appointed as temporary judges of the Court of Session, or temporary Lords Commissioners of Justiciary doing criminal work. Undoubtedly they have been of considerable benefit to the administration of justice in Scotland.
Lord Mackay of Drumadoon: I am sorry to interrupt the noble and learned Lord. The confusion which has arisen with these groupings has been, I am sure, much contributed to by my own utterances. But I think, in fact, he is now speaking to Amendment No. 11, not Amendment No. 10 which was the amendment that was called.
Lord McCluskey: Amendment No. 10 was not moved. I do not think the Committee has changed its composition so I will not repeat what I have said. The availability of these temporary judges to sit in criminal trials has been a great boon to the ordinary administration of justice because it gives the administration a great deal of flexibility. However, they were introduced during the time when my noble and learned friend Lord Hope of Craighead was the Lord Justice General. I do not want to get this wrong, but I think a decision was taken that these judges should not preside in murder trials. I am not sure whether that applied to any other trials but I believe it applied to murder trials. The thinking behind that included the notion that it would not be entirely satisfactory that a temporary judge should impose a sentence of life imprisonment.
Under Section 205A, as it will be, of the 1995 Act, a life sentence will be mandatory. "Exceptional circumstances" is a very difficult concept, as we shall soon discover, and, of course, the temporary judges are, on the whole, less experienced than the judges who are
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full-time Lords Commissioners of Justiciary. Accordingly, it appears to me to be consistent with the current position that they should not be called upon to sit in the High Court and impose life imprisonment in terms of the new section simply because they are not currently allowed to impose life imprisonment in murder cases. That is the reason that I have put forward this amendment.
I know that the Government consulted the present Lord Justice General. He was good enough to write to me yesterday, sending me a copy of a letter which the Lord Advocate undoubtedly has. He indicated that he had consulted with the current Lord Justice Clerk and he came to the view that this was not an amendment which would have their support. He indicated that it would be administratively inconvenient to organise sittings if temporary judges could not be used for this kind of case. He also indicated that, although there would be uncertainty, at least to begin with, as to the meaning of "exceptional" in the phrase "exceptional circumstances", nonetheless, if the judge applied the wrong approach this could be corrected on appeal. In these circumstances, and because of another matter with which I might deal later on, he thought that this was not an amendment that he could support. However, I should be interested, before I decide what to do, to hear the views of others who have experience of this matter. I beg to move.
Lord Macaulay of Bragar: The question of temporary judges is one which has rather confused me since it was introduced—no doubt the fault is mine. But as I recollect the legislation which introduced the post of a temporary judge, he was given the full powers of a senator of the College of Justice. Anecdotally, I have heard of at least one occasion when the accused, counsel and witnesses were all in the High Court, but because it was either a murder or a rape trial (I cannot remember which) and because only a temporary judge was available, the trial did not proceed. One can imagine the consequences in relation to that.
Could the noble and learned Lord the Lord Advocate explain, even as a matter of information, why this restriction on presiding over trials is placed upon temporary judges. It seems inconsistent if we are going to have them anyway and they can try attempted murder in the sheriff court; and no doubt they can try attempted rape. But just because the classification of the crime is changed, the judge is not fit, as I understand it, to preside over the full-blown charge of murder or rape. It may very well be that it is costing the country quite a lot of money and inconvenience. I do not offer criticism in any way, except that the noble and learned Lord, Lord McCluskey, has said that of course temporary judges are useful in freeing full-time judges; but if what has been said is correct, they seem to be treated as second-class judicial persons. It must be very embarrassing for them, to say the least, to be in that position. If the correct people are being appointed to the post under the terms of the legislation, with the full

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powers of a senator of the College of Justice, why not give them the full power? Either that or stop appointing temporary judges.
Lord Hope of Craighead: I wonder whether I may introduce some background information which may assist the noble and learned Lord. The 1990 Act imposed a number of very difficult decisions on me in my administrative capacity as Lord President and Lord Justice General. One of the difficulties that I faced was in giving effect to the measure to which the noble Lord referred; namely, the introduction of temporary Lords Commissioners of Judiciary. It is perfectly true that under the statute they were given all the powers that are given to all Lords Commissioners of Judiciary. But at the same time, there was a question of public confidence and, indeed, a question for the Bench as a whole over the extent to which they felt happy with the measure and were able to give it their full support.
It was in that light, after consulting the then Lord Justice Clerk, that I took the decision that I should give a direction administratively to the principal clerk and his deputies that the temporary judges should not be used in murder trials or rape trials without consulting myself as Lord Justice General. The purpose was to avoid having them sit as judges in those very sensitive cases which in Scotland we describe as "the subject of pleas of the Crown". I also included in the direction that they should not be used in cases where the trials were of unusual complexity. That was designed to deal with the problem of confidence in cases where perhaps a particularly complex trial might be thought to be better handled in the High Court by one of the permanent judges of that court.
Of course, there is a matter of practice and convenience. I am not aware of a case in which a trial had to be cancelled because a temporary judge had been assigned to it. However, I was consulted on one occasion when somebody had pleaded guilty to rape and the only judge available to take the plea without it being adjourned to another court was a temporary judge. I gave my consent, in accordance with the practice note, for that temporary judge to deal with the matter. He imposed a sentence which I do not believe the Lord Advocate thought proper to criticise after the event.
Against that background, let me say that I have not seen the letter from the Lord Justice General; nor, quite properly, did he feel it necessary to speak to me about what he said. But I am not in the least surprised by the words read out by the noble and learned Lord, Lord McCluskey.
The Committee will appreciate that there is here a point of principle and a point of practice. So far as concerns the principle, I have no doubt that the Lord Justice General would wish to adhere broadly to the policy devised some years ago. But to lay it down as a statutory requirement that temporary judges should not sit in such cases would create the risk of administrative difficulty. The solution I adopted was one which I thought sufficiently flexible without demeaning the temporary judges who provide a very good service to the court. For myself, I should be happier to leave the
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matter on the basis of practice, although I entirely appreciate the point made by the noble and learned Lord, Lord McCluskey. It may well be that effect will be given to that in reviewing the practice in the light of the measures which eventually come out of the amendments we are discussing today.
Lord McCluskey: The noble Lord is quite right in relation to the case of murder because he could look at the indictment. He knows that it is a case of murder and can say that as a matter of practice a temporary judge will not sit. But when it comes to a qualifying offence—10 are listed and about 17 are grouped there—he cannot tell whether or not it is a case in which the judge will have to impose a life sentence unless he knows that the accused has a previous conviction for a qualifying and relevant offence. So unless the Lord Justice General is to be privy to the list of previous convictions applicable to every case that may be indicted in the High Court, he cannot apply the practice. For that reason, I feel that the useful administrative distinction drawn between the law and the practice in that case—the case of murder and the case of rape—cannot be applied in this case. I would hope that the noble and learned Lord would acknowledge that right away.
Lord Macaulay of Bragar: I do not know whether it is proper for me to ask the noble and learned Lord, Lord Hope of Craighead, about murder trials and rape trials presided over by temporary judges. Either now or at some future date, can he advise me of how many murder trials and rape trials have been presided over by temporary judges? I feel that the answer may be nil. I see that the noble and learned Lord nods his head. That underlines the point I made.
I was careful to say that I spoke anecdotally. I can give the noble and learned Lord the names of the counsel and the temporary judge involved in the postponed trial but I think that it would perhaps be improper to mention them in open Committee, so to speak.
Lord Mackay of Drumadoon: With regard to the points raised by the noble Lord, Lord Macaulay, I think that such inquiry ought to be directed at me. I shall ensure that it is passed on to the Lord Justice General so that the inquiry is answered.
As to points which arise out of Amendment No. 11 and which may arise from subsequent amendments, Amendments Nos. 22, 44 and 46, I venture to suggest that the discussion that has just taken place between the noble and learned Lords, Lord Hope and Lord McCluskey, illustrates the importance and sensitivity of the use of temporary judges in Scotland. It may interest the Committee to know that currently eight persons hold such an appointment. Six of them are senior sheriffs and two are senior members of the Bar. All of them sit in a part-time capacity. Obviously, the two senior members of the Bar are in practice; the other six serve as sheriffs when they are not required to sit in the High Court.
This is not the occasion to discuss the full ramifications of the use of temporary judges. But I believe it is accepted on all sides that the heavy

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workload of the courts—both the civil court, the Court of Session, and the criminal court, the High Court of Judiciary—means that there is cause to call upon their services. It is recognised that they make a valuable contribution to the work of the Supreme Court in Scotland.
The noble and learned Lord, Lord Hope, explained the practice which he put in place when the relevant legislation (the 1990 Act) came into force. The Government are firmly of the view that it should be left to the court, and in particular to the Lord Justice General, after such consultation that he conducts, whether with his fellow judges or with anybody else, as to what is the best way forward. If there have been practical problems of the kind mentioned by the noble Lord, Lord Macaulay, no doubt some regard will be had to them. But the allocation of judges to individual cases and to judicial business in general is not the responsibility of government and, I venture to suggest, is not the responsibility of Parliament in the way that it is focused in this amendment and subsequent amendments.
On the basis of that explanation and of that helpfully provided by the noble and learned Lord, Lord Hope of Craighead, and in the light of the views expressed by the current Lord Justice General in the letter which I have not seen—I do not know whether it was intended to be copied to me but I certainly have not seen it and I was not consulted before it was written—I hope that the noble Lord will not feel it appropriate to proceed with the amendment and subsequent amendments which touch on similar topics.
Lord Kirkhill: As the noble and learned Lord the Lord Advocate is about to resume his seat, perhaps I may ask him one question. When he refers to "senior sheriffs", does he include in that phrase sheriffs principal? If so, how many of those are within the six? I ask that question because I worry about the accused. I dislike the thrust of the Bill, as he may understand, and I dislike the concept of the mandatory sentence. But there is the question of the exceptional circumstance and its individual definition.
We heard earlier from the noble and learned Lord, Lord McCluskey, that he has a computer in his home. At the moment, the judges are apparently able—in balance, as I think he said—to reach the mid-point. If he did not exactly say that, it was the emphasis behind his remark. I put the question to him in the light of that background.
Lord Hope of Craighead: Before the noble and learned Lord answers the question, perhaps I can explain just a little more, since I was closely involved in the selection of the sheriffs who were to sit. The sheriffs principal, although they are of course senior to sheriffs, do not exercise day to day criminal jurisdiction. They have many administrative duties to perform. I did not think it right, and I do not believe that my successor thought it right either, to ask them to conduct criminal trials. On the other hand, the 'sheriffs whom I selected—I believe the policy remains the same—were all senior
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counsel, all of whom had had experience in the Crown Office and they were all very experienced sheriffs. The great advantage which they had was bringing to bear in criminal trials the background of their experience as sheriffs over a long time.
One feature of our jurisdiction in Scotland is that the procedure which is followed in solemn trials before juries is precisely the same in the sheriff court as it is in the High Court. It was possible for me to call upon a very specialised field of expertise in making my selection, so it may be that with these remarks the noble and learned Lord will feel able to reassure the Committee that these selections are made with great care, that they are made on the basis of experience and, so far as I am aware, they have not shown themselves to have been mischosen in the work which they have done.
6.30 p.m.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for his comments. The selection procedure is similar to that which is followed for the appointment of full-time judges. They are carefully selected. There is no doubt about them having the competence to do the work of the court. However, it is a matter for the court, as I believe the noble and learned Lord, Lord Hope, indicated, as to whether with particularly sensitive cases it is appropriate to allocate those cases to them. That is a matter which the Government firmly believe should be left to the Lord Justice General to decide. Sheriffs principal have not been appointed for the reasons indicated by the noble and learned Lord, Lord Hope, and their lack of day to day practical experience in the criminal courts is as good an explanation as one could seek as to why, because of the particular paths their judicial careers have followed, it would not be sensible for them to sit part-time in High Court work where, whether it is murder or rape cases on the one hand, or less serious cases on the other hand, it is nevertheless dealing with very important matters in the lives of those who are accused in the courts of Scotland.
Lord McCluskey: I trust that those who read this debate will understand that the practice hitherto followed whereby temporary judges are not used in cases where the obligation to impose a life sentence would follow conviction can no longer be maintained because of the provisions of Section 205A. We have a situation in which a temporary judge, having before him an ad hoc depute appointed for the week and assisted by a clerk recently promoted from the sheriff court, will preside over one of these cases and impose a life sentence. I do not regard that as very satisfactory but, plainly, there is nothing very much that I can do about it except to draw attention to it. Therefore, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Baroness Turner of Camden): If Amendment No. 12 is agreed to I cannot call Amendments Nos. 13 to 15 inclusive.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 12:
Page 2, line 16, leave out from ("that") to end of line 17 and insert ("it would he in the interests of justice to impose another sentence").
The noble Lord said: I am not too happy about the drafting of this amendment. Rather than "another sentence" it should read "a sentence other than", but I will not detain the Members of the Committee with semantics for the moment.
The Bill envisages a life sentence which is not fixed by law. The Government have it in mind that there can be circumstances in which the mandatory life sentence—the so-called mandatory life sentence—will not be passed. Those circumstances they define by the words "exceptional circumstances". What this amendment and the amendment that is to be discussed with it propose is that the test should not be one of defining exceptional circumstances, but the simple test of what is just and what is not just. If, in the view of the sentencing judge, a sentence would be unjust, then he ought not to pass it. It is a perfectly simple, straightforward test. If the Government reject that as the test it will emphasise to the public at large the point that we have made over and over again, both in connection with this Bill and with the Bill affecting England and Wales, and that is the point that the Government contemplate the passing of unjust sentences. I seek the approval of the Members of the Committee to this amendment on the basis that the test is one of justice or injustice.
"Exceptional circumstances" is a very different concept. The Government say that a judge should not pass the sentence if there are exceptional circumstances. I have listened long and hard to some clarification of what the Government have in mind by that phrase "exceptional circumstances". We know, as the Lord Chief Justice reminded us on the Second Reading of the English and Welsh Bill, that exceptional circumstances are very narrowly defined. I made that point myself in the Committee stage of the English and Welsh Bill. They do not extend to matters that are within the usual experience, which is a wide experience, of the everyday running of the court.
I ask the noble and learned Lord the Lord Advocate to explain at this point what are the exceptional circumstances the Government have in mind. For example, over and over again we who oppose the concept of mandatory sentences have put forward various illustrations of where injustice will arise: the gap in time, the sentence that is passed upon a boy aged 15 in relation to a qualifying offence and which leads to a mandatory life sentence, perhaps for something entirely different, a completely different type of offence, some 20 or 30 years on. Is that an exceptional circumstance? There is the difference between the offences themselves to which I have referred, the difference between the 15 year-old boy indulging in lewd and libidinous conduct with a small child, to which I believe the noble and learned Lord, Lord McCluskey, referred, and an offence of attempted murder or manslaughter or something of that nature. It is a different offence, a different type of offence. Is that an exceptional circumstance, or is that simply to be
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regarded as one of the things that will happen under this legislation from time to time and there is nothing exceptional about it?
The degree of participation of the individual defendant is another matter. If, for example, he is a young man who is on the fringe of the activity and is drawn into a serious conviction through the doctrine of what is in English law a joint enterprise—I believe Scottish law has a separate expression for it, of which no doubt the noble and learned Lord the Lord Advocate will remind us in due course—and if he is convicted, that in some offences requires a different state of mind, a different mens rea than that required for the person who takes the lead in that particular offence. Is that an exceptional circumstance?
Above all, supposing a court is convinced on all the evidence that is presented to it that the particular individual who falls to be sentenced is not a danger to the public, that there are reports showing there is no possibility of a repeat offence of a similar sort and that therefore the whole principle of an indeterminate sentence to protect the public, which lies behind much of the rhetoric that is put with this mandatory sentence concept, is not relevant. If there is no need to protect the public and the judge is satisfied of that, is that an exceptional circumstance?
Before those words are taken into the Bill and passed by this Chamber, some explanation of the scope of the words "exceptional circumstances" is required. I ask that in his reply the Lord Advocate address those questions I put to him directly. I beg to move.
Lord Carlisle of Bucklow: I have no doubt that we will return to this question in the context of the English Bill, either at Report stage or before or after the coming general election, whenever that may be. However, I should like to follow the noble Lord, Lord Thomas, and ask the Lord Advocate to expand on one matter. He said, if I heard him correctly, in answer to the earlier debate on Amendment No. 1 in response to the noble and learned Lord, Lord Ackner, that the question of whether a gap of 20 years between one offence and another could amount to an exceptional circumstance, was an interesting matter and a matter that could be argued.
I believe I am right in saying that, on the authority of the Court of Appeal in a case whose name I cannot remember—the judge was the Lord Chief Justice—it was said in terms and was quoted on several occasions during the passage of the English Bill, that youth, good character and an early plea of guilty, either separately or in conjunction, cannot amount to exceptional circumstances. If good character for life, say over 40 years, cannot amount to exceptional circumstances, on what basis does the Lord Advocate envisage that a gap of 20 years between two offences can amount to exceptional circumstances?
If the Lord Advocate is right that it can amount to exceptional circumstances, to some extent I am bound to ask myself what we have all been doing here for the past few weeks. That is what we have been arguing; that is, that we should have a sufficient exception which

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allows a court to do justice in all the circumstances and to take into account matters such as the length of time between the offences and the age of the first as against the age of the second before deciding whether or not the mandatory sentence has to be passed.
I repeat, I shall be grateful if, when answering the question of the noble Lord, Lord Thomas, the Lord Advocate will consider, if a gap of 20 years could arguably be exceptional circumstances, how he relates that to the present state of the law in England. Also, can he say whether it is the intention of the Government that matters of that character can amount to exceptional circumstances?
Lord Sewel: I join with other Members of the Committee and invite the noble and learned Lord the Lord Advocate to use this amendment as an opportunity to give us his thoughts in a considered way on what constitutes "exceptional circumstances" in some sort of illustrative detail. That would be extremely useful for the Committee, both at this stage and perhaps at later stages.
The only precise illustration that I have been able to find of the Government coming close to defining "exceptional circumstances" is in the case of an informer. If that is the be all and end all of "exceptional circumstances" it falls far short of what many of us would wish to see. It falls far short also of the type of steer that the noble and learned Lord the Lord Advocate was giving earlier in the first debate.
That issue was raised in that debate in an interesting way and it is now incumbent upon the Lord Advocate to go on and expand and give a clear definition of what is meant.
6.45 p.m.
Lord McCluskey: Perhaps I may deal first with the point raised by the noble Lord, Lord Carlisle of Bucklow. He referred to the Lord Chief Justice's case. I read all the Crime (Sentences) Bill debates in this House and in the other place and am familiar with what was said. But let us be quite plain. In the 1995 Act into which these sections are to be put, it is specifically provided under a Clause 2 type of case that the court may reduce sentence for an early plea. That is the effect of Section 196 of the Criminal Procedure (Scotland) Act 1995. When one looks at Clause 2 on page 5 of the present Bill, one finds at line 22 that,
"where a court is passing sentence on an offender under section 205B(2) of this Act"—
that concerns multiple drug offences—
"and that offender has pled guilty",
the court can take that into account and knock off a very strange number of days, to which I shall turn later. So, it being provided for in Section 205B, it is as plain as a pikestaff that it is not provided for in Section 205A. Therefore I offer the respectful opinion that, without a shadow of doubt, it is not an exceptional circumstance within the meaning of the Bill.
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People keep inviting the Lord Advocate to reply; I urge upon him caution. Because of the case of Pepper v. Hart decided by the Judicial Committee of this House some time ago by a majority of six to one, their Lordships decided that in order to discover the meaning of a provision in an Act of Parliament, it is now possible to go to the debates. In particular, it is possible to go to the debates of the Minister in charge of the Bill to discover what was in the mind of the Government.
I do not particularly like Pepper v. Hart, but I have to live with it. In fact, two of my speeches have been quoted in cases and I do not believe that either of them contributed much to the solution of the problem faced by the court. However, it is important to listen to the Lord Advocate's answer, and the reason is this. When judges sit down to discover the meaning of a word in a statute, they are asking themselves what was in the mind of Parliament when it used that word as distinct from another word. That is one of the principal approaches: why did Parliament choose that word? Parliament must have meant something; so one engages in an exercise to discover what Parliament meant.
If the Government drafted the Bill, as they commonly do, then one goes to the Minister to find out what he meant. If he meant it, the probability is that Parliament, which supported him, meant the same. It is important therefore to listen to the Lord Advocate's answer and it is important for him to say what "exceptional" means; nobody else seems to know. I do not know; I do not know whether the noble and learned Lord, Lord Hope of Craighead, has worked it out yet. But the noble and learned Lord, Lord Taylor of Gosforth, did not know; Mr. Maclean seemed to think that it was confined to the informer, and a good thing too were his approximate words. Apart from that, no one seems to know what it means.
Let me turn to Amendment No. 13, which is grouped with Amendment No. 12. The only examples that I can find so far are the ones mentioned by the noble Lord, Lord Sewel, and the noble and learned Lord the Lord Advocate.
The Earl of Courtown: Amendment No. 13 is not grouped with Amendment No. 12.
Lord McCluskey:I shall anticipate its arrival on the scene by continuing my remarks about it, because it deals with "exceptional circumstances". I apologise for that error; I have so much paper here that I have difficulty in following my own thoughts.
The two examples that were given were the one mentioned by the noble Lord, Lord Sewel, and the one mentioned by the Lord Advocate; namely, that a long time may have passed between the first and the second offence. That is two examples of exceptional circumstances that have gone into the books.
If we look at the wording on page 2, line 16, the Committee will see that that subsection reads,
"if the High Court is of the opinion that there are exceptional circumstances which justify its not passing the sentence which that subsection would … require it to pass upon a person, the court may decline to pass that sentence".

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If we deleted the word "exceptional", it would read,
"if the High Court is of the opinion that there are … circumstances which justify its not passing the sentence which that subsection would … require it to pass upon a person, the court may decline to pass that sentence".
If you postulate a set of circumstances which would justify not passing a life sentence, the court says, "But that does not matter. We still pass a life sentence even though the circumstances do not justify that. We still have to pass a life sentence unless the circumstances are exceptional." That is an extraordinary position. Although there may be circumstances which justify not passing a life sentence, the court may be compelled to do exactly that simply because it cannot find that the circumstances are exceptional.
I have had great difficulty in finding out exactly what circumstances are "exceptional". The noble Lord, Lord Carlisle of Bucklow, raised one point which I have sought to answer. The age of the offender cannot be an exceptional circumstance because in both Clauses 1 and 2 the words appear, "irrespective of the age of the offender at the time of the first offence" although age is specified for the second offence, the one for which life imprisonment is required to be imposed. Therefore, age cannot be an exceptional circumstance.
What if the offender rapes an old woman of, say, 75, 85 or 95? Is that an exceptional circumstance? Sadly, it is not an exceptional circumstance because in my experience there are quite a number of cases in which villains rape elderly, infirm and disabled people. There is nothing exceptional about that, although it is certainly tragic. I am afraid that I do not know what is meant by "exceptional".
I am worried about the possible situation of a judge being faced with what one might call—I hesitate to use these words—a "standard type" of rape—in other words, where the victim is not very young, not very disabled or not very old. Is the judge going to say, "This is not an exceptional case so I shall apply the exception and not impose a life sentence?" There would be an outcry if he did so, and with considerable justification.
I hope that the Lord Advocate will respond to the many invitations to give us something to think about—perhaps as we adjourn for dinner—and that he will tell us whether there are any circumstances which he can properly describe as "exceptional". I do not understand the Government's thinking. For the reasons of Pepper v. Hart, I hope that their thinking will be made plain tonight. I am sure that the Committee would welcome full and frank disclosure of the meaning of the term "exceptional circumstances" in the Government's mind.
Baroness Carnegy of Lour: As an ordinary lay person, I find these semantic arguments difficult to follow. "Exceptional circumstances" in any normal parlance are circumstances which make it possible to except what one does from what is laid down. I should have thought that it was a question of judicial discretion. I know that the noble Lord dislikes the whole thing, but surely this argument is absolutely basic to the Bill. I should have thought that the phrase means what it
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means in ordinary English. I wonder whether my noble and learned friend the Lord Advocate can say whether there is any other legislation in Scots law involving "exceptional circumstances". Is there a problem with the phrase elsewhere? When reading the Bill, I thought that a judge could operate the provision quite well. It seems to me that this is an unnecessarily complex argument.
Lord Hope of Craighead: There is a particular problem here to which I attempted to draw attention on Second Reading. The word "exceptional" is itself capable of interpretation and I have no doubt that, as case follows upon case, the Criminal Appeal Court in Edinburgh, which is not subject to review by your Lordships' House in its judicial capacity, will be able to evolve a satisfactory meaning for the word. However, there is a problem which arises in relation to road traffic legislation where the word "exceptional" is not used, but where the word "special" is used. In certain cases, certain events can follow if the circumstances are "special". There is some authority for the view that the phrase "special circumstances" does not include the circumstances of the offence on the view that Parliament has laid down a mandatory disqualification and that that in itself is enough to justify the imposition of the mandatory disqualification, irrespective of whether or not the offence is serious.
It was for that reason that I asked the noble and learned Lord to consider on reflection and in the light of what I had said whether the Government were prepared to say at least that the phrase "exceptional circumstances" could cover the circumstances of the offence. Without committing himself to what the word "exceptional" might mean it would be of assistance if the noble and learned Lord were prepared to confirm that the Government understand the phrase to be wide enough to include not only the circumstances of the offender, but also the circumstances of the offence.
As I said at Second Reading, it would be perfectly understandable and intelligible if the noble and learned Lord were to say no to that question—in other words, that the circumstances of the offence were not to be taken into account. On the other hand, it would be logical for him to say yes. However, what I cannot understand is why the Government should not be prepared to give an answer to that question. In view of the fact that they have brought forward this legislation they must at least have some view as to whether the circumstances of the offence can be taken into account in deciding what is and what is not "exceptional".
Lord Mackay of Drumadoon: The invitation which has been extended to me by noble Lords on all sides of the Committee to amplify the Government's construction of the term "exceptional circumstances" has been urged on a number of my colleagues both in this House and in another place and it has been resisted until now. I have no intention of departing from that practice.
I believe that I am right in my recollection that the noble and learned Lord, Lord Hope, was not in the Committee earlier when, in speaking to Amendment No. 1, I made it clear that the Government can see no

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reason why the court could not construe the term "exceptional circumstances" to include the circumstances of the two offences and those of the offender. It was for that reason that I invited the Committee to take the view that part of that first amendment was unnecessary. I refer to the subsection which was restricted to Clause 1. I believe that that position was also made clear by the Minister of State in another place when the Bill was in Committee there. Indeed, that has been the Government's position throughout and nothing that I have said so far departs from or amplifies that.
In response to a point raised by the noble and learned Lord, Lord Ackner, I said that a fact which indicated a period of 20 years or more between two offences is the sort of fact one would anticipate being used in advancing the argument, which would require to be advanced, that in looking at all of the circumstances before the court—not just the mere fact that there were 20 years between the two convictions—which could include the circumstances of both offences and those of the offender, it would be possible for the court to take the view that there were exceptional circumstances which would justify the court not imposing either an automatic life sentence or a mandatory sentence under Clause 2.
The noble Lord, Lord Thomas, suggested a number of situations which might arise such as the mere gap in time between the two offences or a significant difference in the character of the offences. For example, a serious sexual offence, such as rape or unlawful intercourse with a girl under the age of 13 years, may be the first offence, while robbery with the use of a firearm is the second. The noble Lord mentioned the English concept of "joint enterprise" which we in Scotland refer to as "concert" or "art and part". I believe that that will arise in due course when we examine certain of the individual offences set out in the schedule of qualifying offences. He gave as another example a case in which the judge was satisfied on the information before him that there was no possibility of danger to the public. I find it difficult to imagine a situation in which a judge can be so satisfied when dealing with an offender who has been convicted for the second time of a serious sexual or violent offence, but I do not exclude the possibility that such a view can be taken.
All of these examples illustrate the point that I sought to make earlier. It is for the courts to construe the term "exceptional circumstances". No doubt if there is any ambiguity about it, the courts will, in accordance with the authority of Pepper v. Hart, have recourse to what has been said in this Chamber and in another place. They may feel that it is unnecessary to follow the route which that authority opens up, but it is for the court to construe it. That is the approach that the Government have taken, rather than setting out in detail and at length a great variety of different considerations that may or may not fall to be looked at by the courts when they construe the clause. Once a construction is decided upon, the court will apply it to the facts of the particular case.
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An invitation to expand upon this matter has been given in the past. The Government, having considered the matter very carefully, are firmly of the view that that is not the way forward. Courts day and daily have to construe provisions in Acts of Parliament. The matter referred to by the noble and learned Lord, Lord Hope, is one example of that. Parliament could have given various examples and more guidance but chose not to do so. That is the route that we believe is the correct one to be followed here.
I know that my explanation will not satisfy the noble Lord, Lord Thomas—he has been asking for it repeatedly—but equally it will not surprise him. I hope that, having heard what he has already heard in the past, he will accept that there is no point in proceeding with either this amendment or the subsequent one.
7 p.m.
Lord Thomas of Gresford: I express my disappointment but not surprise at the answer that has been given by the noble and learned Lord the Lord Advocate. As a rugby referee, I have more guidance from the Welsh Rugby Union as to the meaning of the rules of rugby football than the noble and learned Lord has just given in respect of this Bill. While I am disappointed in one direction, my heart leaps in another. Given the definition of "exceptional circumstances" proposed by the noble Baroness, Lady Carnegie of Lour—which amounts to what is just and unjust—the noble and learned Lord has virtually accepted what she has said.
The noble and learned Lord says that the courts must construe this phrase; but he appears to forget that the courts seek to determine what Parliament intends. If Parliament in the guise of the Lord Advocate do not take this opportunity to expand a little further on it, it is for the judges to exercise, as they have over the centuries, their own beliefs as to what is just and unjust and what is right and what is wrong. I welcome the Pepper v. Hart decision which will enable the words that have been spoken on this amendment to be read by every judge throughout the land, just as if the Welsh Rugby Union were told, "Boys, is up to you what you do in determining what this phrase means". I am happy with that. If it is left to the judges we will get justice in this country. Because of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 13:
Page 2, line 16, leave out ("exceptional").
The noble and learned Lord said: Perhaps I may take this opportunity to say in reply to the noble Baroness, Lady Carnegie of Lour, that this matter is not one of semantics. The meaning of the expression "exceptional circumstances" is not clear to me or, so I understand, to the noble and learned Lord, Lord Hope of Craighead, who was the Lord Justice-General for Scotland. In the letter to which I referred from the present Lord Justice-General reference was made to the fact that at the stage of sentencing the judge would have to decide

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whether to apply the prescribed sentence because of exceptional circumstances, and doubtless there would be uncertainty at least to begin with as to the approach to be applied. Therefore, he confesses to some uncertainty as to the meaning of that phrase. I hope that when it comes to deciding the meaning of the expression there will be some guidance provided by what the noble and learned Lord the Lord Advocate has said in the course of today's debate. But one would be surprised if, when looked at closely, it yielded the meaning that one would hope to get on the basis of Pepper v. Hart. In the circumstances, I do not propose to move the amendment.
[Amendment No. 13 not moved.]
[Amendments Nos. 14 to 17 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 18:
Page 2, line 29, leave out from ("Act") to end of line 42.
The noble and learned Lord said: In moving this amendment, I should like to speak also to Amendments Nos. 19, 20, 21, 37, 38, 40, 53 and 55 which fall within the third grouping on the list. The purpose of Amendment No. 18 and the related Amendments Nos. 53 and 55—the new clause after Clause 2—is to remove convictions for which the offender has received an absolute or conditional discharge from the definition of "conviction" in Clauses 1 and 2 of the Bill which, on further offending, may lead to an automatic life or minimum sentence. These amendments arise out of our further consideration of the provisions of the Bill in the light of comments made at Second Reading and in another place, and our conclusion that such convictions should not fall within the scope of the definition. At the same time, the amendments will add convictions under military law to the definition and fill a gap that would otherwise exist in the provisions of the Bill.
I hope that the amendments will go some way towards addressing the concerns that possibly underlie Amendment No. 19 which stands in the name of the noble and learned Lord, Lord McCluskey, although the noble and learned Lord will no doubt make that clear in due course. His amendment seeks to remove from the Bill that part of the definition of qualifying conviction which makes it clear that convictions involving admonition, absolute or conditional discharge or a probation order will be regarded as qualifying convictions. The amendment in my name would achieve this for absolute and conditional discharge. While it is not wholly clear what the effect of removing the remainder of the definition would be, it is possible that the court would conclude that these other convictions should not be regarded as qualifying either.
Clause 1 seeks to deal with offenders who, despite having been convicted of a serious violent or sexual offence such as rape and the other serious offences set out in the schedule, go on to commit a further such offence. We have already dealt with the question of "exceptional circumstances". In so far as the circumstances of the first offence can be taken into account, part of those circumstances will be the disposal. That will be one of the many factors that the court will
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have to consider in deciding whether in the circumstances of the second offence exceptional circumstances can be applied. However, where persons are convicted of such offences for a second time, I believe it is reasonable to provide that in the absence of such exceptional circumstances liability to an automatic life sentence should arise.
The other amendments in the name of the noble and learned Lord, Lord McCluskey, would remove convictions obtained elsewhere in the United Kingdom from the definition of qualifying convictions. While I acknowledge—I believe that I mentioned this earlier in our deliberations—that there are some differences in the definitions of offences between Scotland on the one hand and England and Wales on the other, the Government do not think it reasonable that someone who is convicted of one rape in England and who then commits a second rape in Scotland should expect to be treated differently from someone who commits both rapes in Scotland. One can find endless permutations of how, if the noble and learned Lord's amendments were accepted, such curious results would occur.
The notion that by moving between England and Scotland one might avoid the full force of the law when one is engaging in serious criminal activity and committing further serious and dangerous offences is not one which anyone, I venture to suggest, would wish to encourage. It would not fit well for such freedom of movement to bring about different results of the nature that I have indicated.
Amendments Nos. 21 and 37 respond to suggestions made to the Government by the noble and learned Lord, Lord Hope of Craighead, on Second Reading. His view, which the Government accept, is that the work of the courts and others concerned with the legislation would be assisted if the full lists of the relevant offences in England and Wales and Northern Ireland were set out on the face of the Bill. That is what Amendments Nos. 21 and 37 are designed to achieve. I beg to move.
The Deputy Chairman of Committees (Baroness Nicol): I have to inform the Committee that, if this amendment is agreed to, I am unable to call Amendment No. 19.
Lord McCluskey: As I was the author of Amendment No. 19, perhaps it would be appropriate for me to speak at this stage. Unfortunately, because I am in Scotland, I did not receive a copy of the government amendments until shortly after noon today when I arrived here. However, as I understand the Lord Advocate he is accepting the point which is contained in my Amendment No. 19, so that a person who has merely been admonished or received an absolute discharge does not thereby earn a qualifying offence. If that is right, there is no need for me to pursue the matter further in Amendment No. 19.
The provision in the Bill as it stands, before amendment, is of course an absurd one, because plainly if a person appears in the High Court on one of the qualifying offences, and is given an absolute discharge or is admonished, manifestly the circumstances must have been exceptional, even though one does not know

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what they are, because it is highly exceptional to have someone merely admonished or given an absolute discharge in the High Court in Scotland in respect of one of these offences. Accordingly, I support the Government in relation to this amendment.
Lord Mackay of Drumadoon: I am sorry to reject the noble and learned Lord's unqualified support. I apologise if he did not receive as much notice of the amendments as he might have done. If he turns to Amendment No. 55, which was the last one I mentioned in the list to which I was speaking, he will see set out there a new clause which will come after Clause 2 in which admonition is included. So the purpose of the Government amendment is to remove absolute and conditional discharge but not admonition.
Lord McCluskey: That means that I have to return to the fray. This might give us a little assistance in relation to what exceptional circumstances are or might be. If a person appears in the High Court and is convicted of one of the offences listed in the schedule—culpable homicide, incitement to murder, rape, attempted rape, use of a firearm and so forth—and is admonished, then the circumstances must have been exceptional; otherwise he would not have been admonished. If he had been admonished and the circumstances were not exceptional, the Crown would have used its right of appeal to go to the Appeal Court to say that that was an unduly lenient or inappropriate sentence. Does it not follow that the logic of that is that if a person subsequently obtains a qualifying offence, and his previous one was one in respect of which he was admonished, the circumstances must, almost by definition, have been exceptional? Does not the Lord Advocate accept that?
Lord Sewel: May I ask whether I am beginning to understand this? Is it that under Amendment No. 55, although an admonishment would count as a conviction, it would be open to argument that the nature of the disposal—the admonition itself—was the basis of an exceptional circumstance?
Lord Mackay of Drumadoon: This illustrates the value of leaving this to the court. The noble and learned Lord, Lord McCluskey, has expressed a view as to what must be exceptional circumstances. It is not for me to say whether he is right or wrong on that, but it illustrates the point I seek to make, and have sought to make throughout this afternoon: that those who sit in the High Court of Justiciary in Scotland, and their counterparts in England, are more than capable of looking at a term in a statute and a set of facts to see whether the facts can be described as exceptional circumstances.
My response to the point made by the noble Lord, Lord Sewel, is that the fact that an accused was admonished on the first occasion is a fact which could be relied upon in advancing the argument that there were exceptional circumstances. I do not for a minute concede that in every case in which there is an admonishment it would automatically follow, as night
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follows day, that exceptional circumstances apply. The fact that it did occur is clearly a fact which indicates that a further inquiry of the full circumstances of the earlier conviction may be productive. I would anticipate my colleagues at the Scottish Bar and solicitor advocates would be more than happy to follow along that route.
Lord Sewel: Before the noble and learned Lord sits down, how would the court find out whether the offence had occurred 20 years ago and there had been an admonishment? What material would be available to the court hearing the second offence upon which it could make a judgment that the admonishment, in the context of the case, was a recognition of the exceptional circumstances?
Lord Mackie of Benshie: I wonder whether the noble and learned Lord can enlighten me. I have listened to the debate with interest. I understand that he is prepared to trust the judges to say what are exceptional circumstances, but he is not prepared to trust them with the ordinary circumstances of sentencing.
Lord Mackay of Drumadoon: With the greatest respect to the noble Lord, that is rather more a comment on my argument than a matter upon which he expects a response. I have heard him make it before. In fact, as I recollect, he made it on Second Reading. I have already explained at some length my position and that of the Government on automatic life sentences.
I return to the point made by the noble Lord, Lord Sewel, about the practicalities of the situation. It is a valid point. It is one which is obviously of importance and which will require to be addressed. The Crown's practice is to retain papers, not to destroy them. In the course of my service as Lord Advocate over the past year or so, I have been surprised by the number of occasions when dusty sets of papers have been brought out, and cases which I prosecuted as an advocate depute, and which others prosecuted before me, had to be looked at for whatever reason. That is a matter which will be required to be discussed by the Crown with the court and with those charged with the defence of those who appear as accused persons in the High Court, the Faculty of Advocates, solicitor advocates, and those who instruct them. It should be possible to work out procedures, whether Acts of Adjournal are required to be passed by the court is a matter which will have to be looked at. Agreed practice may be another option to be explored. I see no practical reason why we cannot make sure that where a particular accused wishes the court to address the circumstances of an earlier conviction, no bar is placed in the way of him seeking to do so.
Lord Macaulay of Bragar: Is it not a fact that the only papers which are kept on a long-term basis are those of murder cases? The papers of other cases are disposed of in due course, just as the police destroy papers. I ask that merely as a matter of information. The only papers available would be those for cases of murder with the relevant productions and recognitions. In a case other than a case of murder or culpable homicide, it would not be possible to trace the

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background of the admonition. I am merely seeking information. It is a long time since I was in the Crown Office.
Lord Mackay of Drumadoon: That does not accord with my understanding of the procedures. It certainly does not accord with papers which I have seen, one in particular involving the prosecution of a rape in the very early 1980s. I have looked at cases dating back earlier than that. Again, that is a question of practice about which I am happy to make further inquiry.
Lord Sewel: It would be helpful if the noble and learned Lord could look at the qualifying offences to see the extent to which there has been a habit of retaining those documents. Perhaps the noble and learned Lord will write to us about that.
Lord McCluskey: Another matter arises. Having regard to Amendment No. 55, at which I have had an opportunity to glance during the course of the proceedings, there is reference to Section 181 of the 1975 Act. Is there some provision which enables one to have regard to the fact that a person received an absolute discharge or some kind of admonition for an English conviction; that is, a relevant offence under the second part of the schedule? If so, is that to be put into the Bill at some stage? In other words, in the same way can one have regard to admonitions and absolute discharges in respect of relevant offences which have been proved and established in England and Northern Ireland?
Lord Mackay of Drumadoon: I am sure that the answer is to be found in the latest print of the Crime (Sentences) Bill which I have before me but I must confess that I cannot find it at the moment. I shall inform the Committee later about that or write to the noble and learned Lord after the Committee has taken place.
On Question, amendment agreed to.
[Amendments Nos. 19 and 20 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 21:
Page 2, line 47, leave out from ("Act") to end of line 3 on page 3.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 22:
Page 3, line 3, at end insert—
("( ) Any Judge of the High Court who imposes a sentence of imprisonment for life or of detention for life under subsection (2) above shall make the following public statement at the time of passing sentence—
"It must be clearly understood that although by Act of Parliament I am obliged to impose a sentence of imprisonment for life (or detention for life, as the case may be) the actual period during which you will be detained in custody will not be the period of your natural life but will be such period of years as results from the application to the sentence now passed of the other provisions of this Act and of the 1993 Act or any other relevant legislation in that behalf".").
The noble and learned Lord said: This amendment is self-explanatory. I hope that I have the reading of it correct because only today I collected a copy of the Marshalled List and a number of changes have been made to my amendments by the Clerks. Basically, it is concerned with honesty in sentencing and it raises a point which has been raised already by other Members of the Committee in the course of today's proceedings.
In various public announcements, the Government have espoused the notion of honesty in sentencing. That is a notion which, as far as I can tell, started life in the United States and in the Commonwealth; the first example of it is to be found in report of the Commonwealth Law Commission which the government of New South Wales acted upon in 1989. Therefore, the principle was one of honesty and truth in sentencing.
Under the present Bill, we are required, if we are judges who are imposing a sentence mandated by the new Section 205A, to say to the prisoner, if he is over 21, "I sentence you to imprisonment for life". There is nothing honest about that because we know perfectly well that whatever else happens in his life, he will not be imprisoned for life except in most unusual—I hesitate to say "exceptional"—circumstances. Normally a person who is sentenced to imprisonment for life will not be in prison for life. Therefore, in order to introduce some honesty into the proceedings, I propose that the judge will use a form of words which I have set out in the amendment:
"It must be clearly understood that although by Act of Parliament I am obliged to impose a sentence of imprisonment for life…the actual period during which you will be detained in custody will not be the period of your natural life but will be such period of years as results from the application to the sentence now passed of the other provisions of this Act and of the 1993 Act".
That at least would be an honest statement.
I hope that the Government will welcome my support for the principle of honesty in sentencing and will embrace with enthusiasm that wording which I hope makes it abundantly plain to everyone. For example, Private Lee Clegg was sentenced to prison for life and was allowed out after a couple of years. The Government pray in aid the memorandum by the recent Lord Justice Clerk, Lord Ross, echoing to some extent what was said by the then Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth, that sentencing is to some extent a charade because the judge knows that he is not telling the accused or the public the truth.
In the circumstances of this Bill, I should have thought that it would be appropriate to have such a form of words so that everybody in the court, including the accused, the press and the public who sometimes crowd into the public galleries would know that that was an honest judge who was telling it like it is. I beg to move.
Lord Mackay of Drumadoon: I hope that every time the press are in court in Scotland and hear a judge passing a sentence, they proceed upon the assumption that judges are honest, because clearly they are.

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I understand what leads the noble and learned Lord to put forward the amendment, in which I detect some intrusion of his tongue in his cheek in the formulation of the words that he has chosen. I hope that there is nothing between us in acknowledging that in bringing forward the proposals, the Government have never sought to imply that when an automatic life sentence is imposed, it will mean that the offender to whom it is applied will spend the rest of his days incarcerated.
On the contrary, Ministers elsewhere have sought to stress, both in Parliament and elsewhere, the provisions which I have mentioned this afternoon—the importance of the fixing of the relevant part, release by the Parole Board and the licence which follows thereafter. We have sought to emphasise the flexibility of the life sentence which allows for punishment and deterrence and release when it is considered safe to release the offender into the community.
No doubt given a free hand, we could all produce texts of what judges might say in the High Court of Justiciary but, for my part, I do not think it either wise or necessary to do so. I suspect that most offenders, at the point of sentence, will be well aware of what is going on. However, I rather doubt that they are in a mood to listen to the detail of a statement such as that set out in Amendment No. 22. In the event, after sentence, the position will be explained to the offender by his lawyer and on arrival at prison, the prison authorities will do likewise.
I should like to think that with the interest that this legislation has attracted, victims and the general public will be sufficiently aware of the fact that those made subject to such sentences may be released in the future and that will mean that, provided it is safe to release them into the community, imprisonment does not mean imprisonment for life. I doubt, therefore, that the proposed statement would add any additional clarity to the position which is currently understood and will be understood by the public.
Further, as the noble and learned Lord will I hope acknowledge, it has not been the universal practice in Scotland for judges to give detailed reasons at the point of sentencing for imposing a particular sentence. If, for the purposes of an appeal, detailed reasons are required, the trial judge can provide a report for the Appeal Court. I am not persuaded that any regulation by statute is either desirable or necessary. As with some other amendments, I hope that the noble and learned Lord will not press this one, although I understand why he tabled it.
7.30 p.m.
Lord Macaulay of Bragar: I believe the practicalities of life in court are in fact that when people are sentenced to a fairly lengthy term of imprisonment, very often they do not know what has happened to them. They are rushed away by police officers and it takes some time for that information to get through to them. With respect to the noble and learned Lord, Lord McCluskey, I believe that the language used in his
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amendment is rather flowery. Indeed, the last four lines of the wording would not mean much to an accused and probably even less to members of the public.
Lord McCluskey: I am sure that the language of my amendment could be improved upon and, had we but time, I would do it. Under the Bill, a sentence of life imprisonment does not mean life imprisonment. That is a serious point. Therefore, I am attracted by the proposition advanced by the noble Lord, Lord Thomas of Gresford, that one could have a kind of protection of the public order. Accordingly, the judge would say to a defendant, "You will spend the next 10 years in prison and, at the end of that time, an order will apply to you under which you will not be released until the Parole Board decides that it is safe for you to be released". That would make perfectly good sense.
Of course, that would have echoes of the sentence which I believe was abolished in 1949; namely, a sentence of preventive detention. That is really what the Government are talking about. For example, you take a person who has proved himself, by consistent recidivism in a particularly nasty way, to be unfit to be out. You preventively detain him and then you give the Parole Board the power to release him. It seems to me that that would be an appropriate kind of name to use. No doubt the Government, in pursuing the notion of honesty in sentencing, will think again about the words. In the hope that they do so, I do not propose to press the amendment. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Courtown: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before
8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Public Entertainments Licences (Drug Misuse) Bill
7.33 p.m.
Baroness Anelay of St. Johns: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Anelay of St. Johns.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Nicol) in the Chair.]
Clause 1 [Licensing outside Greater London]:
Lord Meston Lord Meston moved Amendment No. 1.
Page 1, line 12, leave out from ("where") to end of line 16 and insert ("there is substantial evidence of a serious problem relating to the supply or use of controlled drugs at a place in respect of

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which has been granted an entertainments licence under paragraph I above or at premises near such place which are under the control of the holder of the licence, and—

(a) the chief officer of police has served a written caution on the holder of the licence setting out the nature of the serious problem relating to the supply or use of controlled drugs at the place or nearby premises and requesting the licence holder to supply to the chief officer of police within 14 days from the date of service of the caution details of all steps which the licence holder has taken or proposes to take to deal with the problem; and

(b) not less than 14 days from the date of service of the caution the authority by whom the entertainments licence was granted have received a report from the chief officer of police that the police have substantial evidence that there is a serious problem relating to the supply or use of controlled drugs at the place or at premises near such place which are under the control of the holder of the licence.").

The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 5, 12, 16 and 22. I promise that this group of amendments is the only group to which I shall speak at any length. On Second Reading there was, quite properly, support from all sides of the Chamber for the principle of the Bill. However, concern was also expressed about how it might work in practice. In particular, there was concern about the fairness and the consistency of the procedures which might operate and there was also concern about the looseness of some of the wording. Some reassurances were given by the Government on Second Reading, but I have to say that they were not very convincing.
The first reassurance was that the powers to be given by the Bill would normally be used only as a last resort. The difficulty about that proposition is that there is no indication of it on the face of the Bill. It provides no preliminary procedures or safeguards for fairness. It is meant to be a tough Bill and I repeat that we support its principle. But its very toughness reinforces the need for some more apparent fairness.
The second reassurance given was that most local authorities already hold hearings before deciding to revoke a licence. The difficulty about that is the fact that the holding of a hearing is not universal and the procedures are not uniform; for example, there are no underlying rules setting out even minimum standard requirements for such hearings. The third reassurance given was that Home Office guidance would be issued to accompany the Bill when it became law. However, the guidance was not even in draft form on Second Reading, let alone being the subject of consultation with the various interested bodies. Since that time, the noble Earl has been good enough to send us a preliminary draft of the guidance, but the difficulties remain. It will only be guidance and will not be binding. I understand that in other areas of licensing law, even where there is some form of guidance, it is not necessarily adhered to. There remain variations of practice and of procedure, inconsistencies and anomalies, all of which tend to encourage appeals.
The first group of amendments relates to Clause 1 which governs licensing outside Greater London. In fact, they could all be applied to Clause 2 but I have not further burdened the Marshalled List. They seek to improve the Bill in a number of ways. First, they would require there to be substantial evidence of the serious
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problem of drug supply or use which the Bill addresses. Secondly, where the problem is not at the licensed premises but somewhere nearby, they would require the nearby place to be under the control of the licence holder. In its present form, the Bill's lack of definition of the phrase "near the place" will, I suggest, generate a considerable number of inconsistent decisions as between different licensing authorities.
Thirdly, the amendments would require the police, as a first step, to serve a written caution on the licence holder setting out the problem perceived by them and seeking details from the licence holder of what he has done, or what he will do, about it. In that respect, I suggest that paragraph 9 of the draft guidance is remarkably limp. Finally, the amendments would require a licensing authority to be satisfied that not renewing the licence or revoking it will substantially reduce the problem.
As regards that last part of the amendments, I should say that I recognise that the amendments of the noble Baroness, Lady Anelay, would insert the word "significantly". I certainly do not want to argue about adverbs. Nevertheless, I would suggest that the phrase within the amendment which states that the licensing authority must be satisfied that revoking or not renewing the licence will substantially reduce the problem is preferable to the phraseology which would be within the Bill if amended as the noble Baroness proposes: namely, that not renewing or revoking the licence,
"will assist in significantly dealing with the problem".
I beg to move.
The Deputy Chairman of Committees: If this amendment is agreed to, I cannot call Amendments Nos. 2 and 3.
Viscount Ullswater: The noble Lord, Lord Meston, has outlined the reason why he has introduced this amendment; namely, the need for a written caution. Most of those who spoke at Second Reading introduced the concept of the requirement for this written caution. This amendment proposes that a written caution should be introduced and gives the licence holder 14 days to supply the chief officer of police with details of all the steps to be taken as regards the serious drugs problem that has been identified by the police. This matter was dealt with at Second Reading and has been ably introduced tonight by the noble Lord, Lord Meston. I believe that this gets to the heart of the matter and would overcome the difficulty of a club being ambushed by the police—this has been mentioned to me—often when that club considered it had a satisfactory relationship with the local force.
I know there is a problem as regards promoters who use premises and who might not be so careful as regards supervision or doormen. There is also the rather nasty difficulty of the operators of one club trying to disrupt the trade of a rival by unscrupulous means. The amendment would give the licence holder 14 days' grace before the local authority is informed. That is a matter of his putting his house in order or getting his house in order if this serious problem has been

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identified. As the noble Lord, Lord Meston, has indicated, the concept of "near" is defined in the amendment as somewhere which is,
"under the control of the holder of the licence".
Mention has already been made of the guidance notes. I am grateful to my noble friend Lord Courtown for circulating them. I understand that they are in draft, but it is interesting to see the sort of outline that these guidance notes will take. The guidance notes are particularly weak as regards the reference to "near". Although they explain that the Bill does not elaborate the meaning of "near", the guidance notes also proceed to duck the issue.
The worry of the industry is that local authority licensing committees act in an inconsistent way across the country at present. I refer to children's certificates. The committees will continue to act in an inconsistent way. I believe that the guidance notes should be much more prescriptive than they are at present. However, they are not all bad, and I welcome them. The guidance notes indicate at paragraph 13 that there is now an important requirement to be fulfilled in that revoking a licence would have to be of assistance in dealing with the problem. My noble friend Lady Anelay wishes to insert the word "significantly" into that requirement. Paragraph 13 further states:
"If a local authority considers that the problem would continue unabated even if the premises were shut, then the test will not be met".
That is helpful. However, it makes the need for reasons, which we shall discuss in the next group of amendments, even more important. I shall have a little to say about that when we reach it.
As I indicated on Second Reading, the guidance notes do not help at all as regards the definition of a serious drugs problem or the definition of "near" the premises. We have requested those definitions. I hope that the guidance notes will be made more helpful in that regard, otherwise the courts will have to decide the matter, and that is a slow and expensive process. I doubt that my noble friend Lady Anelay or the Government will accept this amendment. I regret that, but realistically I accept that that will be the case. Therefore we have to rely on the guidance notes which suggest that,
"it would be unusual for a licence holder not to be aware of police concerns before a chief officer reports to the local authority. It is expected that the report itself will refer to previous exchanges with the owners or managers of the premises".
That is helpful. The guidance notes continue,
"It would be good practice in other than emergency cases for the local authority before reaching their decision to inquire into the extent to which the owners or managers have been made aware of the drugs problem".
That is helpful, but I believe it places far too much faith in the local authority and its officials. There must be a clear duty placed on the local authority to consult with all relevant parties before acting. I believe this group of amendments achieves that objective. I commend them to the Committee. At Second Reading I indicated that I had an interest to declare; namely, I am a director of Rank Leisure Limited which operates clubs which have a public entertainments licence.
7.45 p.m.
Lord Monson: Not long after they were published I added my name to all the amendments of the noble Lord, Lord Meston, because it was immediately evident that they admirably resolve all the fears and reservations that were expressed in various quarters of the Chamber at Second Reading about the possible injustices that might result from this Bill as originally published. As regards this group of amendments, any problem must be serious, any evidence must be substantial, any caution must be in writing, and any drastic action provided for by the Bill can take place only if it will substantially reduce the problem. Above all, where drug offences are committed nearby rather than at the premises in question, the nearby location in question must be,
"under the control of the holder of the licence"
if a closure is to be contemplated; in other words, if the licence is to be withdrawn.
I would never claim for a moment that all club proprietors are as pure as the driven snow. However, I guess that most of them would not condone or facilitate drug taking. It would be quite wrong if innocent people were to lose their livelihoods merely because their clubs happened to be situated near an unfenced public park open 24 hours a day, or near an area such as Epping Forest where drugs can easily change hands with little fear of detection.
Lord Rea: This Bill concerns the use of various drugs, particularly Ecstasy. I noticed during the Second Reading debate that that was never defined as methyldioxymethylamphetamine, which the Committee will recognise puts it in the family of the amphetamines, the commonest form of speed. The use of various of these drugs by adolescents and young adults will not go away even if certain clubs are closed where there is a "serious problem". If the use of these recreational drugs on the premises by a sizeable proportion of a club's clientele were held to constitute a serious drugs problem then probably the majority of nightclubs where dancing takes place could have their licences revoked under the provisions of this Bill. The severity of the problem and the definition of "near" or "nearby" is left so open that even after taking account of the amendments of the noble Baroness there could be an uneven use of the provisions in different parts of the country. A local authority taking an authoritarian or even draconian view of the drugs problem could close most of the clubs in its jurisdiction if it so wanted. Local authorities with a more permissive outlook may seek to change the situation without recourse to the provisions of the Bill. I submit that that approach might well be more effective in bringing the drug situation more under control than use of the Bill.
However, the amendments attempt to remedy some of the defects of the Bill and make it a little more even in its use throughout the country. I strongly support them.
The Earl of Dundonald: First, I apologise for not having had an opportunity to speak at Second Reading of the Bill. Secondly, I declare an interest. I am a

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director of a small entertainments company based in Scotland. While not necessarily directly associated with the Bill, nonetheless I am involved in family entertainment, although not specifically with club entertainment. However, as a result I have some experience with the licensing legislation in Scotland.
I, too, support the amendments for two specific reasons. First, as regards the matter of the notice period and giving owners and managers of premises reasonable time and warning of problems, my experience in Scotland is that managers and doormen of these types of clubs in Scotland can be the cause of the problem in the first place. It is important that the directors of the companies operating the clubs are given an opportunity to put right anything that might be going on without their knowledge. That is my concern. I am not sure that 14 days is required, as long as some form of notice has been given to the registered offices of the company concerned.
Secondly—a number of noble Lords have spoken on this point—I refer to the words "near the place" in the guidance notes which the Minister has been kind enough to circulate. Number 13 states:
"Essentially there must be some causal link between the fact that the club is open and the drugs problem which occurs on the premises or nearby".
Perhaps I may highlight a problem that we experienced in Scotland in our premises in Aberdeen. The problem does not relate to drugs but to under-age drinking. We have premises close to the university playing fields on the outskirts of town. A number of local grocery stores have been supplying drink to children aged between 12 and 14. A number of those children hung around our premises. The police helped us initially and then gave up. We had to involve a security firm to remove the children from our car-parking area and the general surroundings of the building. But that does not deal with the problem. We removed the problem from our immediate surroundings but it simply went further afield. The pavilion on the university playing fields was extremely badly vandalised. The children moved into the car park of the local Asda store which was not a million miles away.
The point is this. Children—under-age drinkers—will congregate near a place of entertainment. I submit that it is highly likely that anyone likely to use any form of these recreational drugs is likely to congregate near these clubs. It is not fair to ask the owners and managers of clubs to clear the entire area. That is the responsibility of the police. I am quite certain that responsible owners and operators of clubs in this country will co-operate closely with the police in order to move matters forward. But it is not fair to put the entire onus of responsibility on club owners for drug abuse in the proximity as defined in the guidance notes. For that reason I believe that it is important that an amendment along the lines put forward is made to the Bill.
Lord Gladwin of Clee: I, too, thank the noble Earl, Lord Courtown, for letting us see the draft circular. From the first reaction, I think that there will be some interest in tightening it up.
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In effect, the amendment wrecks the Bill. As we all know—we talked about it at Second Reading—youngsters go to raves, discos and nightclubs. Sometimes they obtain drugs inside those premises, but not infrequently they obtain drugs before they go in—in a local authority car park, a pedestrianised town centre or a bus shelter. Drugs are bought from dealers outside the premises. If the police can demonstrate that there is a causal or purposive link between the activities of dealers in, say, the car park and drug misuse in the nightclub, and that revoking the licence will significantly assist in dealing with the drug problem, then I believe that the authority should have that power to use in emergencies.
Lord Monson: Before the noble Lord sits down, does he accept that that could prove a great injustice to a club owner who had nothing whatever to do with the provision of the drugs outside the club?
Lord Gladwin of Clee: Theoretically that may be so. But as we all know, before an authority uses the power that the Bill provides, there will undoubtedly be much discussion and consultation with the licence holder.
Baroness Anelay of St. John: I can give the Committee the same assurance as that given by the noble Lord, Lord Meston: that this will be my longest response to the amendments tonight.
I am aware of the concerns of the club trade which underlie the amendments; namely, that the police and local authorities could be over-zealous and inconsistent in enforcing the new powers contained in the Bill. Some of those concerns were raised during the Second Reading debate. Let us be clear that the new revocation power is a tough measure to deal speedily with the worst cases. It is a power that local authorities should have available to them. It is a power that should not be watered down.
But these amendments would have just that effect. The requirement for a written caution would build in delay which would defeat the whole objective of the Bill. Likewise, too narrow a definition of the location of a problem or attempts to define the nature and weight of the police evidence or what impact revocation should have on the problem could again result in delay while those points are argued over.
I sought to keep the Bill simple and to find other ways of promoting fair and reasonable practice in enforcing the new powers. At Second Reading, and again tonight, frequent reference has been made to the Home Office circular which it is intended should be issued before the new powers come into effect. The noble Lord, Lord McIntosh of Haringey, asked for a draft of the circular to be made available to the House. As we learned tonight, that has been done. However, it is very much a first draft. Consultation has yet to take place with the local authority associations, the police and the trade. It is not intended that the circular should be prescriptive. It is designed to illustrate and promote the many examples of good practice that already exist up and down the country. Local authorities, the police and the clubs already work closely together to provide safe

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environments where people can enjoy themselves. The draft circular in its present form therefore deals with many of the issues that these amendments address. Where an effective relationship exists between the police and club owners there is close liaison on such matters as security, the handling of drug-related incidents and the effective exchange of information. It would be very unusual for a licence holder not to be aware of police concern before a chief officer reports to the local authority. I do not believe that there is evidence of any widespread failure on the part of the police to link up with clubs at an early stage about their concerns. The circular will, however, serve to encourage the good practice that already exists.
The new power requires local authorities to apply a two-stage test. The first stage is that there must be,
"a serious problem relating to the supply or use of controlled drugs at or near the place".
The second is whether the action by the local authority will,
"assist in dealing with the problem".
I have endeavoured in the amendment that will come before the Committee in due course this evening to address questions about police evidence and the test that the local authority should apply in deciding whether revocation of a licence is appropriate. Understandably, there is much interest in these definitions. The circular states the obvious in that what constitutes a "serious" problem in this context is a matter for determination by the local authority and will depend upon the particular circumstances of the case.
It can be stated with some certainty that organised drug dealing in connection with events held on the premises obviously comes into the category of a "serious" problem. So, too, will evidence of significant numbers of customers suffering the adverse effects of drug misuse. But all the circumstances of the case and the available evidence will need to be reported by the police for consideration by the local authority.
There has also been debate about "at or near the place" and whether the licence holder can be responsible for a problem that exists near, rather than on, his premises. Whether a problem is "near" for these purposes is again a matter of fact, to be determined by the local authority according to all the facets and facts of a particular case. Any elaboration on the meaning of "near" by defining it, for example, as being at a particular distance from the club concerned, would simply be too limiting. We must remember, however, that before an authority can exercise its new power it must be satisfied not only that the problem is at or near the place but also that revoking the licence would assist in dealing with the problem. There must therefore be, as the noble Lord, Lord Gladwin of Clee, mentioned earlier, some causal link between the fact that the club is open and the drugs problem that occurs on the premises or nearby. As the circular suggests, if the local authority considers that the problem would continue unabated even if the premises were shut, the tests will not be met.
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As I indicated, the views of the local authority associations, the police and the club trade will be sought on the guidance in the circular, and further clarification of the issues may well emerge. I hope that the Committee will agree that it is better to proceed in this way, building on good practice, rather than complicate the Bill any further. I very much hope that the noble Lord, Lord Meston, will see this as the way forward and will agree to withdraw his amendment.
Lord Harris of Greenwich: I followed the argument of the noble Baroness, Lady Anelay, with some care. However, I found it wholly unpersuasive. Let us determine straightaway those matters on which we agree. Do we have a major drugs problem? Yes, of course we do. Is part of that problem related to clubs? Yes, most certainly it is. Is it necessary to take vigorous action to deal with it? Yes, most certainly. But the question arises: is the Bill as presently drafted the appropriate way to deal with these problems?
On hearing the noble Baroness's argument on "at or near", I found it extremely difficult to believe that we are seriously being invited to decide whether to destroy someone's business, possibly even a small business, on the basis of evidence of that sort. We really do have some responsibility as a revising Chamber to make sure that we do not pass nonsensical legislation, or legislation which is believed to be addressed to a specific problem but which has the most unfortunate secondary effects, as I believe will be the case under the Bill as presently drafted.
If the noble Lord, Lord Gladwin, will forgive my saying so, I do not regard this amendment as even remotely a wrecking amendment. It merely sets out a procedure which would make the Bill far more acceptable to all those who will approach the problem in a mood of moderation and with some degree of restraint. The Bill as presently drafted is wholly unsatisfactory. In particular, the "at or near" issue worries me greatly.
As we all acknowledge, we live in the real world. We are probably within three weeks of the dissolution of this Parliament. Let me be quite blunt with the noble Baroness. Unless we achieve some form of acceptable compromise on this issue, the prospect of the Bill ever reaching the statute book is remote. That is blunt reality. Speaking for my noble friends, we are certainly anxious to ensure that a Bill dealing with this problem gets on to the statute book. There is no gulf between us on that matter. However, we remain deeply concerned about the Bill's drafting. I have no doubt about the noble Baroness's good intentions; however, I am afraid that the consequences of agreeing to the Bill as it is set out at the moment is very difficult for us to go along with.
In the draft circular that the noble Earl, Lord Courtown, very kindly sent to my noble friend and others, he accurately points out that the Home Office has yet to consult the local authority associations, the Association of Chief Police Officers and the club trade on the draft, which in any case may have to be amended in the light of any changes made to the Bill as it passes through Parliament. I recognise that the noble Baroness is in a difficult position, dealing with this Bill so late in

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the present Parliament. Although my noble friend may well withdraw this amendment (or, on the other hand he may not) I very much hope that between now and Report stage we will try to reach some agreement. It would be a great pity if the Bill simply died because of a significant difference between us on its drafting. I suspect that my noble friend Lord Meston and others, including the noble Viscount Lord Ullswater—indeed most of us—accept the existence of a significant problem, one which we all want to address but in relation to which some of us find it very difficult to accept legislation which in our view would have wholly undesirable secondary effects.
Lord Rea: I believe that it is permitted at Committee stage to have another bite of the cherry. The idea of closing down a club because there is a serious drugs problem "near" that club seems very iniquitous if the club itself is in no way to blame—
Baroness Anelay of St Johns: Perhaps I may intervene. When we discussed this matter at Second Reading, I tried to explain, as did the noble Lord, Lord McIntosh of Haringey, that there is no thought that a local authority would simply move in—nor could it under the powers in the Bill—to close down a club because there happened to be a serious drugs problem nearby. It has to be satisfied as to the causal link; namely, that only by closing down the club will there be a change in the drug dealing. The noble Lord will appreciate that I wish to put forward other amendments which would mean that it would be an action which would significantly assist in changing the pattern of drug dealing nearby. That was certainly a major part of discussions on Second Reading.
Lord Rea: I was going to draw the analogy of a chicken farm which is attacked by foxes. It is rather silly to close down the chicken farm when the source of the trouble is the local foxes. Surely it is the job of the police to deal with the dealers who are situated at or near the premises concerned?
The Earl of Courtown: We have had a very useful short debate on the first group of amendments. I re-state the Government's firm view that the tough powers in the Bill are needed to help responsible local authorities to deal with the problem of drugs in clubs.
We expect that the new powers will be used very sparingly, but local authorities should be able to deal swiftly in extreme circumstances. If these powers are diluted, as would be the case if the requirement in the amendments before us for the police to issue a caution to club owners were accepted, the purpose of the Bill would be undermined.
We are aware of the concerns of the club trade that owners and promoters might not be aware that the police regard them as having a serious problem with drug supply and misuse until a report is made to the local authority. I have to say that we have seen little evidence to justify that concern. What is apparent, however, is that many police forces and clubs are already working together to keep drugs out of clubs. Where that is
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happening communication between the police and clubs is regular and two-way. The Home Office circular, which Members of the Committee have seen in draft, will be used to promote good practice. It will also assist in defining some of the issues in the Bill. I reiterate that, as my noble friend said, this is only a draft Home Office circular. A great deal of consultation must take place. The Government's view is that we should avoid changing the Bill by attempting to provide tighter definitions when the fact is that only by considering the particular circumstances surrounding each individual case and by applying the two-stage test referred to by the noble Baroness can cases be resolved.
I reiterate what the noble Lord, Lord Gladwin, and my noble friend have said. The draft circular says that, if the local authority considers that the problem would continue unabated even if the premises were shut, the test will not be met.
The Government have given an undertaking to consult the local authority associations, the police and trade representatives on the terms of the circular. I hope that the noble Lord, Lord Meston, will agree that this is the right way forward and that he will not press the amendment.
Lord Harris of Greenwich: I hope that someone will respond to the suggestion that I made a few moments ago. If people do not respond, this Bill will die; that is certain. I have suggested that we might try between now and Report stage to reach some form of accommodation. There is no desire on our part to frustrate the intentions of those who have produced the Bill. Our concern is with the drafting. I hope that people will accept our good faith in this matter and agree to consider the possibility of some form of discussions.
The Earl of Courtown: The Government and, I am sure, my noble friend will take full account of everything said at Committee stage. Prior to Committee stage a number of noble Lords had a constructive meeting with the Minister at the Home Office. I realise that the noble Lord, Lord Meston, was unable to attend that meeting. My door is always open on the subject. My noble friend Baroness Anelay of St. Johns and I have talked to noble Lords who have an interest in the Bill. Never have we not been open to suggestions from noble Lords. However, we shall take due account of what has been said with regard to this amendment.
8.15 p.m.
Lord Meston: I accept that the Government have responded in some measure to the points made at Second Reading by offering the meeting, which I regret that I was unable to attend, and by producing the preliminary draft guidance rather quicker than was envisaged.
In no way are these amendments intended to wreck the Bill and I dispute that they do so. They represent a serious attempt to give effect to the concerns about the Bill expressed at Second Reading and by the various responsible interested bodies. Perhaps I may deal with two matters before I seek leave to withdraw the amendment.

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First, several noble Lords referred to the provision for a caution. I agree with the point that the introduction of a caution procedure will encourage co-operation with the police rather than confrontation, as must be at least potentially possible if the Bill stands as it is presently drafted. A caution will concentrate the mind of the licence holder, who may not be culpable but perhaps has become a little careless. The responsible licence holder will want to respond promptly and to co-operate with the police, and be seen to be doing so.
Secondly, a caution, if not responded to, will provide the police with the best evidence for revocation in the event that the licence holder has not responded satisfactorily.
I turn to the question of the guidance. I accept that we have only seen a provisional draft but the guidance relating to the definition—or perhaps I should say the non-definition—of a place near to the premises is, frankly, unhelpful and indeed emphasises that there is a deliberate policy within the Bill as presently drafted not to seek a definition. I understand the argument. But it is said, rather blandly, that there must be some causal link between the fact that the club is open and the drug problems which occur nearby. Surely, without having to define what "nearby" or "proximity" mean in the context of the Bill, it must be right that the licence holder should be in a position to do something about the problem if his licence is to be put at risk? There must be some failure on his part, even if it is a failure to provide proper security at the door or surveillance within the club. That is why I believe that further thought must go into spelling out in the guidance, if not in the Bill, what causal link must be established before the licence is in any way at risk.
I agree with the noble Viscount, Lord Ullswater, that the guidance needs to be more focused and more prescriptive. At present it does not even have the statutory status of the Highway Code. Surely if this guidance is to provide consistent good practice throughout the country, it needs to be beefed up and to be given a greater status on the face of the Bill.
Those are perhaps points to which I can return at Report stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 2:
Page 1, line 14, after ("police") insert ("stating").
The noble Baroness said: In speaking to Amendment No. 2, I shall also speak to Amendments Nos. 3, 13, 14, 30, 31, 33 and 34. These amendments are designed to address the concern of club owners about the nature and weight of the evidence that the police have in proceeding to report a serious problem of drug misuse at or near a club.
We know that the club trade is seeking protection from the possibility that the police will go to the local authority with flimsy evidence. I believe that that is unlikely and that it is just as unlikely that a local
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authority would then accept either inadequate evidence or mere assurances that the police have evidence. However, some additional provision can be made in this Bill. By providing through this amendment that a chief police officer must give his reasons for saying that there is a serious problem, we are requiring in effect that the police have evidence to support their case and supply a summary of that evidence to the local authority. In doing so, the strength of the police evidence can be clearly established at the outset. I beg to move.
Viscount Ullswater: I welcome this group of amendments which I believe assist with the task. I congratulate my noble friend on persuading the Home Office, following the very useful meeting which we had, and on coming forward with this amendment. I think it was with regard to our concerns that it has been moved and I believe that the amendment, as it stands, helps to identify why the police consider that the problem is serious because they have to give their reasons for it.
However, I cannot give it 10 out of 10 because it only does half the job. I should like it to go on and do the other half of the job and say why, for instance, the refusal of the transfer of the licence or revocation of the licence, depending on which section it goes into, will significantly assist in dealing with the problem. That seems to me to be the other half: we have the first part stating the reasons. That indicates the seriousness of the problem and I believe that it should go on and say why the action to be taken, the revocation of the licence, will significantly—which is another amendment coming up later—assist in dealing with the problem. I believe that it is an operational matter for the police and it is the judgment of the police that the local authority must be aware of before they try to make up their mind about whether the licence should be revoked or there is a refusal of transfer. So, whereas I cannot give my noble friend 10 out of 10, I thank her for this amendment; but I should like her to take matters a little further and I hope she may give some thought to that.
Lord Monson: I too welcome this amendment so far as it goes. But at the risk of sounding as if I am being carping, I have to point out to the noble Baroness that giving reasons is not the same as giving evidence—hard, solid evidence.
The Earl of Courtown: The Government's view is that these amendments deal with the club trade's concerns about what evidence the police would supply to the local authority to substantiate that there is a serious problem of drug supply or misuse. As regards the basis of the police evidence, I suggest that it is very unlikely that a Chief Officer of Police will make a report to the local authority on the basis of unsupported allegations by his officers. No doubt he will look to provide, and the local authority will expect, facts and figures about arrests, incidents of disorder or casualties from drug misuse, therefore requiring the chief officer to give his reasons for saying that there is a serious problem should clarify the issues for all concerned.

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The Government fully support my noble friend's amendments. They are the first of several that address concerns expressed on behalf of the club trade and I hope they will be accepted by the Committee.
Baroness Anelay of St. Johns: I note what has been said. I commend the amendment to the Committee.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 3:
Page 1. line 16, at end insert ("and giving reasons for his view that there is such a problem.").
The noble Baroness said: I spoke to Amendment No. 3 with Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 4:
Page 1. line 16, at end insert—
("( ) A copy of any report from the chief officer of police received in accordance with sub-paragraph (1) above shall be sent by the licensing authority to—

(a) the holder of the licence;

(b) in the case of an application for the transfer of the licence, the person to whom the licence would be transferred if the application has been granted; and

(c) the last known owner of the place.").

The noble Lord said: In speaking to Amendment No. 4, I speak also to Amendments Nos. 7, 15 and 18. These amendments are self-explanatory. I suggest they provide elementary fairness and commonsense in proposing that a copy of a police report should go to those most affected by it and it should go to them before the licensing authority considers its decision. Surely the licence holder is entitled to know what is said about and against him and what is said about the alleged problem. Surely also the authority should not consider the drastic action of revocation until after the licence holder has received a copy of the police report which is to be the basis of the decision which may be made about the licensed premises.
I also suggest that the last known owner of the premises is entitled to know what is said to be going on. He, the landlord, may have his own rights and remedies as well as his own legitimate interests to protect. It may be, following through the thinking behind the Bill, that a stick waved by the landlord may be just as effective as a stick threatened or waved by the police and the licensing authority.
It has already been suggested that my earlier amendments were seeking to water down the Bill. I deny that suggestion and indeed I have not sought, as certain outside bodies were seeking to persuade me to do, to introduce complex procedures as a preliminary to the exercise by the licensing authority of its powers under this Bill. The time limits provided for are not intended to be generous. It should enable swift action to be taken, but at least to be taken fairly. I beg to move.
Lord Monson: This group of amendments is very much less far reaching than our first group of amendments, as I am sure everybody will agree, and
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I do not think anybody could seriously accuse them of being wrecking amendments. For that reason, I hope they can be accepted by the noble Baroness.
Viscount Ullswater: I only rise to support the concept that the owner should be included on the provision of any report. The guidance notes state that good practice should include this close liaison between the police and club owners and managers on the handling of drug related incidents. Also, the local authorities should inquire into the extent to which the owners have been made aware of the drug problem. I believe that this amendment, with the inclusion of the last known owner, makes certain that the owner, rather than necessarily the licence holder, is included in that notification. It is a very minor amendment and I hope that my noble friend may consider that the Government's objective of tackling drugs together could be well served by this.
Baroness Anelay of St. Johns: Some consideration has already been given to the content of the police report in such cases. The Home Office draft circular contains some guidance on the content and processing of the police report. It is not possible to anticipate in advance the range of circumstances that might amount to a serious problem and should be reported to the local authority. However, it is possible to conceive that the police might need to report to the local authority while an investigation is on-going and where suspects still have to be charged with offences. In these circumstances, the publication of sensitive information might well have operational implications for the police or indeed be prejudicial to the individuals involved.
With this in mind, I am opposed to any requirement for a detailed police report to be served on a licence holder. I suggest, however, that this issue could be examined in the course of consultations with the local authority associations, the police and the club trade on the draft circular as a whole to see what further guidance might be offered.
In addition, there is the question of delay which would be built in if the police report had to be served on a licence holder and the last known owner. This again would delay emergency action from being taken in the worst cases. I hope therefore that the noble Lord, Lord Meston, will agree not to press these amendments.
Lord Harris of Greenwich: The noble Baroness says every time that she hopes the noble Lord, Lord Meston, will not press his amendment; but it requires a more adequate explanation than the noble Baroness has just given. I can understand the point, but the first argument she deploys is: what happens if there is an on-going investigation? That is a problem. I assume it is not a problem raised by the police. The letter of the noble Earl, Lord Courtown, makes it quite clear that the Association of Chief Police Officers has not yet been asked to express their views on this matter. Therefore, this is not a police concern given the fact that the police have not yet been consulted according to the noble Earl.
Then the noble Baroness uses this argument which freezes the blood in my veins: the danger of delay. There can be certain circumstances when one is

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investigating possible criminal offences when there are problems associated with delay. But we are talking here about the potential destruction of someone's business. Are they not entitled to some element of delay which enables them to understand why, in fact, it is being suggested that their business should be destroyed? I find it astonishing that while noble Lords opposite talk with great regularity about small businesses—and I agree with their views entirely—when it comes to a small businessman in this area, their interests are swept aside as being a matter of no account whatever.
I have already said once—I shall not boringly repeat it—that I very much hope that we shall address these issues in some form of informal discussions between this Committee stage and Report stage. Frankly, unless we try to reach some form of agreement on this matter, I fear that this measure, which in my view is potentially of quite considerable value, will perish and that would be a pity.
8.30 p.m.
The Earl of Courtown: I am sorry to have tried to interrupt the noble Lord earlier. I should like to make just one point, and my noble friend may have already mentioned it—I think I have in one of my speaking notes. The fact is that these measures will be used in exceptional circumstances. There will be a proved background of drug abuse—and more than drug abuse, drug peddling. We have to take that into account.
Lord Harris of Greenwich: I understand the "exceptional circumstances" argument. But no words like "exceptional circumstances" appear on the face of the Bill. None of us doubts that there is a real problem here. It is a very substantial problem. Anyone who has gone round the police forces in this country knows perfectly well the number of occasions on which this particular problem has been raised. I do not have to be persuaded that there is a problem. I need to be persuaded that this Bill, as drafted at the moment, will satisfactorily address the problem, without doing grievous damage to the interests of people who will have their businesses wiped out of existence without a proper opportunity of explaining the position and having adequate protection.
I hope that this matter will be looked at seriously between now and Report stage. Otherwise, I fear that the consequences as regards the Bill will be very disagreeable.
Lord Meston: These amendments are not concerned with the content of the police report but only with its direction and the potential for it to be received by those who will most likely be affected. It is certainly not intended to delay what I accept should be quite a swift procedure in urgent cases.
I do not find convincing the argument that there is a reason for not sending the report to the licence holder; namely, that the material within the report may somehow be sensitive. Surely by the time the police have decided that it is appropriate to seek to have the premises shut down or the licence altered in some way,
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the police will have their tackle in order. The evidence will be already assembled and must be sufficient to persuade the licensing authority that the drastic action proposed by the Bill has to be taken. I simply do not see the likelihood of information that is still sensitive having to be put in the report or, indeed, having to be left out of the report if it is to be sent to the licence holder.
I respectfully agree with the point made by the noble Viscount, Lord Ullswater. My intention was that the owner of the building rather than necessarily the owner of the business should have a copy of the report because, as I said, he may have rights, remedies and interests of his own.
The noble Baroness, Lady Anelay, said that that matter may be satisfactorily covered in a further version of the guidance. I hope that it may be. But the fact that she has just said so reinforces, in my view, the need to give the guidance a proper status on the face of the Bill and ensure, before the Bill becomes effective legislation, that the guidance is in proper form. On that basis—and that basis alone—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 6:
Page 1, line 19, after ("will") insert ("significantly").
The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 17, 23, 32, 35 and 36. In the light of views expressed by the club trade about the basis on which the local authorities might take decisions to revoke or not renew a licence, I looked again at the test to be applied. At present the Bill requires a local authority to apply the test. The revocation will simply assist in dealing with the drugs problem in question. However, I readily acknowledge that the authority ought not to revoke when it considers that the improvement will be negligible or minor.
In trying to improve on that, we are again presented with linguistic difficulties. The noble Lord, Lord Meston, suggested that the test should be that a non-renewable licence will substantially reduce the problem. However, I do not believe that that will quite do, as it implies that there is some acceptable level of drug misuse which should be allowed to continue unchallenged.
Instead, these amendments adopt the test: the revocation or renewal will significantly assist in dealing with the problem. If accepted, revised guidance on the issue will be included in a circular. The current draft already establishes that the authority must be satisfied that revoking a licence will assist in dealing with the drugs problem and if the authority considers that the problem will continue unabated, even if the premises are shut, the test will not be met. I hope that the Committee will accept the amendments. I beg to move.
The Earl of Courtown: The Government's view is that these amendments deal with the club trade's

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concern about what evidence the police would supply to the local authority to substantiate that there is a serious problem of drug supply or misuse.
As regards the basis of the police evidence, I suggest that it is very unlikely that a chief officer of police will make a report to the local authority on the basis of unsupported allegations by his officers. No doubt he will look to provide, and the local authority will expect, facts and figures about arrests, incidents of disorder or casualties from drug misuse. Requiring the chief officer to give his reasons for saying that there is a serious problem should clarify the issues for all concerned.
The Government fully support my noble friend's amendments. They are the first of several amendments that address concerns expressed on behalf of the club trade. I hope that they will be accepted by this Committee.
Baroness Anelay of St Johns: I commend the amendment to the Committee.
On Question, Amendment agreed to.
[Amendment No. 7 not moved.]
Lord Meston Lord Meston moved Amendment No. 8:
Page 1, line 19, at end insert—
("( ) The authority shall not refuse to renew or to transfer a licence on the grounds set out in sub-paragraph (2) above without affording the licence holder and (in the case of an application for the transfer of the licence) the person to whom the licence would be transferred if the application had been granted an opportunity of being heard by the authority and of making representations to the authority.").
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 10, 11, 19, 21 and 24. Again, the amendments are self-explanatory. They provide the licence holder with the elementary right of an opportunity to be heard.
The guidance, in its original form, refers to natural justice. But the fact is that, even where good practice is operated by licensing committees, I understand that there is no uniformity of practice or procedure. Sometimes the licence holder would be allowed only a few minutes to speak at the start of the proceedings, if at all.
As presently drafted, the Bill allows for representations only after the event; in other words, on the face of the Bill the first opportunity for the licence holder to put his point of view comes after the decision has been made and that may possibly have been a decision which would not have been made if he had had a proper opportunity to speak beforehand. As has already been said, the decision, once made, may come too late for him to save his business. Accordingly, I beg to move.
Viscount Ullswater: I should like to draw the Committee's attention to Amendment No. 19. It offers the licence holder an opportunity to be heard.
Revocation on a report from an officer of police is a new situation and there is no precedent for granting a hearing. This amendment provides that opportunity. The guidance notes are helpful in that they state that it is
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clearly important that the requirements of natural justice are met when a local authority is considering taking such action. At that point, the guidance refers to the non-renewal or revocation of a licence. The guidance notes go on to state that it will be good practice to continue the current arrangements, and the current arrangements are that when there is a non-renewal of a public entertainments licence there will be hearings in relation to that. They provide the licence holder with a similar opportunity to be heard when a local authority is to consider acting upon a police report of a serious drugs problem. However, this is in the guidance notes; it is not on the face of the Bill.
This is a new situation. It does not offer the operator an opportunity of a hearing. It suggests that the guidance be followed. What we are interested in is that there should be consistency offered by the local authority licensing committees and that they should give the opportunity of a hearing. This amendment puts that right, if I can call it a right—I believe it is a right—on the face of the Bill. There is always a disclaimer in the guidance notes because of exceptional circumstances, and they can be overridden.
I will not say any more during the course of this Bill because I have come to the end of what I want to say. If the guidance notes are all we are going to have, then I hope that the Home Office considers very carefully what all the people who are going to be consulted have to say about them. I know that my noble friend has said that they are in draft; they are perhaps a little loose and need tightening up. As the noble Lord from the Opposition Front Bench said, they probably need quite a lot of work done on them. I believe that they do, and I have pointed out some areas where they are loose and need to be tightened up. I hope my noble friend Lady Anelay and my noble friend on the Front Bench will give consideration to this.
Lord Monson: I support this group of amendments because they accord with natural justice. The term "natural justice" has been used quite a lot in the last few minutes. There is nothing wrong with that; I do not believe that it can be stressed often enough. That is what we are aiming for.
Lord Gladwin of Clee: At the Second Reading debate my noble friend Lord McIntosh of Haringey made two succinct points. First of all, he made it clear that he wished to see this Bill go through and did not want it destroyed by complicated legal amendments. Secondly, he said that he would listen to amendments but would not be convinced by amendments which seek to remove the central purpose of the Bill, which is immediate revocation. These amendments deny the local authority the ability to act quickly in an emergency. Therefore, we cannot support them.
8.45 p.m.
Lord Harris of Greenwich: I am becoming increasingly concerned about the quite extraordinary arguments being deployed by the noble Lord, Lord Gladwin. The idea that one is going to punish a person without hearing from him, is the proposal that is being

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made, on the basis of what the noble friend of the noble Lord may or may not have said when this Bill was debated on Second Reading. I hope that when we are discussing legislation we are going to take some account of the many honourable, honest people who are involved in this business. The idea that one would punish people first and listen to them second is a principle very difficult to accept in any form of democratic society. I am most surprised to hear it from the noble Lord, Lord Gladwin.
I fear that I am being boringly repetitious, but I hope this matter can be looked at between now and the Report stage of this Bill. Having said this now on a number of occasions, I will not say it again.
Baroness Anelay of St. Johns: I certainly hear and understand what the noble Lord, Lord Harris, means by his comments. He referred earlier to his blood being chilled by some of the things I said. If he had been able to take the opportunity to take part in the Second Reading of the Bill, he would have learnt then that my blood runs cold at the attempts of the very small minority of bad club owners who do not take away the livelihood of small businesses, but take away the lives of young people. I appreciate that the club trade is quite properly anxious, in the event—I would hope very rare—that the police report to the local authority that a club is considered to have a serious problem of drug supply or drug misuse, that it should have the chance of a fair hearing.
My understanding is that it is the current practice of local authorities to hold hearings where the non-renewal of a public entertainment licence is a possibility. In such circumstances the licence holder is able to attend and be represented. Some consideration has been given in a draft Home Office circular to the basis on which local authorities already hold hearings and some guidance is offered. This recognises that the consequences of non-renewal or revocation under the new arrangements are serious. I take that point, given that the licence holder will not be able to operate the club pending the hearing of any appeal. Therefore, it follows that it is important that the requirements of natural justice are met when a local authority is considering taking such action.
The Bill does not prescribe any procedure in this respect, and it is for local authorities to decide what procedural safeguards to adopt in the interests of fairness. The draft circular suggests that it would be good practice to continue the current arrangements and provide the licence holder with a similar opportunity to be heard when a local authority is to consider acting upon a police report of a serious drugs problem.
However, this Bill is particularly concerned with the exceptional cases where urgent action will be necessary, and in such cases a local authority may have to decide to depart from its normal procedures. With this particularly in mind, I would not wish to see a local authority required to hold a hearing in every single case. We know already that the Home Office circular will be subject to a consultation process and the conduct of
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hearings will undoubtedly receive further consideration at that time. In view of that I hope that the noble Lord, Lord Meston, will agree to withdraw these amendments.
Lord Meston: The fact is that ideas of natural justice vary between different bodies, different employers and different organisations. It is because of that and because of one's experience of that fact that I have sought to put this on the face of the Bill rather than relying on a passing reference to it in the guidance notes or circular, or whatever it may be.
It is certainly not my intention to complicate this Bill with unduly legal amendments. On the contrary, I would suggest that amendments along the lines that I have been proposing will in many ways make this Bill lawyer-proof, proof against applications for judicial review and possibly even immune to applications to the European Court of Human Rights. However, that point is not something to develop at this stage. The fact is that practice without regulation from central government or the Home Office on the face of the Bill will continue to allow for the diversity of practice which those who operate in the field are complaining about. That is something to which we must clearly return at a later stage of this Bill. Meanwhile, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington Baroness Trumpington: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Crime and Punishment (Scotland) Bill
8.50 p.m.
House again in Committee on Clause 1.
Lord Hope of Craighead Lord Hope of Craighead moved Amendment No. 23
Page 3, line 11, leave out from ("murder,") to end of line 12.
The noble and learned Lord said: In moving Amendment No. 23, I shall speak also to the five amendments in my name grouped with it—Amendments Nos. 25, 28, 31, 36 and 39. The amendments relate to various matters arising on page 3 of the Bill in relation to the proposed Schedule 5A. The first five deal with a list of qualifying offences and the last raises an issue in regard to relevant offences. Some of the points are purely drafting suggestions; others raise issues of perhaps greater substance. I shall try to deal with them briefly.
Amendment No. 23 relates to paragraph 2 in Part I which lists the Scottish offences which qualify for the mandatory life sentence. That group deals with attempted murder, to which is added the phrase,
"incitement to commit murder or conspiracy to commit murder".
Amendment No. 23 seeks to delete that reference.
So far as I am aware, incitement to commit murder in Scottish terminology is built into the notion of "art and part" which was referred to earlier. The question I pose for the Lord Advocate is whether it is necessary to repeat that phrase (which, for understandable reasons, is found in the English equivalent of this paragraph) in legislation which is intended to apply to Scotland. It would be enough to rely on the doctrine of concept and on the fact that in relation to Scottish practice an incitement to commit murder will probably involve the offender in a charge of attempted murder—art and part—with the principal actor. Alternatively, it may be that he will be found guilty of conspiracy to commit murder, which is why I bring that into the amendment. I would be content for the words "incitement to commit murder" to be deleted and the reference confined to attempted murder and conspiracy to commit murder. That would be more consistent with what I understand Scottish practice to be.
Amendment No. 25 relates to paragraph 5 which deals with sodomy or attempted sodomy. The phrase brought under scrutiny is the concluding passage of the paragraph which talks about it applying in either case, where one party does not consent. I confess that I find it difficult to follow the phraseology. The amendment is intended to try to simplify the concept in accordance with what I understand to be normal prosecution practice; that is, to bring these crimes before the court where a specific individual is named as a complainer. It would be easier to understand in practice if the wording I suggest were to be substituted.
Amendment No. 28 deals with the group of provisions involving the common law crime of assault. Paragraph 6(a) deals with the question where the assault has been aggravated in certain circumstances. It deals with aggravation by assault to severe injury and aggravation to the danger of the victim's life. It is a common experience in the Scottish courts to find a charge includes also as an aggravation, in suitable cases, assault to the permanent disfigurement of the victim.
I raise that point because it would be better to cover all the various aggravations and avoid the possibility that a jury, in returning its verdict, might delete the bits that are in the Bill at the moment and leave standing an aggravation by permanent disfigurement which, if I understand the philosophy of the paragraph, is intended to be included. It is to safeguard the possibility of some distortion resulting from a jury's verdict, or possibly the way in which a plea has been negotiated, that it would be wiser to make reference here to "permanent disfigurement".
Amendment No. 31 is a small point and relates to the wording of the paragraph relating to robbery where the offender,
"had in his possession a firearm or an imitation firearm".
The wording which causes me some difficulty is the phrase,
"at some time during the commission of the offence";
That sounds too specific. I would prefer the word "any" to be added. Indeed, I believe there is a proposal to delete the words altogether. The broad idea is simply that if a robbery has been committed, where at any time
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in the course of the offence a firearm or an imitation firearm had been produced, that would be an aggravation which would qualify for the purposes of the mandatory life sentence. I hope that the Lord Advocate will be able to consider an improvement to the wording to that effect.
Amendment No. 36 raises a point more to do with prosecution practice than anything else. It is designed to deal with paragraph 10 in the proposed schedule. That brings into the list the offence,
"unlawful intercourse with a girl under the age of thirteen years".
In previous amendments, which have not been accepted, consideration was given to the issue of setting a minimum age on the commission of the first offence. That was raised because of the provision in Clause 1 which qualifies the first offence irrespective of the age of the offender at the time of the commission of the offence.
I am raising the question of what is to be done in a case where somebody has committed this offence while under the age of 16 years. It may be that the Lord Advocate will tell me that it would not be the policy of the Crown to prosecute in the High Court in those circumstances. However, if it is the policy, it would seem a harsh measure to include that offence in that case. It is with a view to finding out what the Lord Advocate's position is on that specific matter, without distorting his general policy on the age relating to the first of those two offences, that I tabled the amendment. I do not need to dwell on the circumstances in which the offences are committed. I have had experience as a judge of cases where the offence was committed and both the complainer and the offender were comparatively close in age. That raises an issue which deserves consideration.
Amendment No. 39—the last amendment in this group in my name—relates to what I might describe as the Gretna Green problem. It is a matter to which I alluded at Second Reading. In the Scottish list we included the offence of,
"lewd, indecent or libidinous behaviour or practices".
As I read it, the English list contains no counterpart. It strikes me as unsatisfactory that one could have an offender who had committed those offences or their equivalent south of the Border, who was then found to have committed one offence north of the Border and who does not qualify for the mandatory life sentence whereas somebody who was just north of the Border and in the same position did so qualify.
I do not pretend any expertise in the nature of these offences in England. But for the purposes of discussion I have introduced Sections 14, 15 or 16 of the Sexual Offences Act 1956. At first sight they seem to have some relationship to the Scottish offence of,
"lewd, indecent or libidinous behaviour or practices";
and Section 1 of the Indecency with Children Act 1960. Those lists are already far too long and, as the noble and learned Lord pointed out earlier, to some extent I am to blame for lengthening them by previous comments. But if we are to have a list of this kind, we should make every effort to see that it is as complete and logical as possible. If that is not achieved, cases will be thrown up

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which will bring the new process into disrepute. There is enough risk of that already, but it would be unfortunate if, through possible defects in the draftsmanship, possible omissions, or possible failures to match the position in Scotland with that in England, there were such imperfections. With those rather broad thoughts in mind, I beg to move.
9 p.m.
Lord Sewel: I refer briefly to Amendment No. 30 and to an issue which is similar to that to which the noble and learned Lord, Lord Hope, referred. I refer to the phrase "at some time". We must ask whether that phrase is necessary and whether it adds anything to the clause. Our concern is that the inclusion of that phrase opens up the possibility of the relevant period stretching back indeterminately from the actual committing of the offence to,
"at some time during the commission of the offence".
Could "at some time" stretch back so far as to cover someone who happened to have a gun at home when the act was planned or thought about? What about the situation where an offender is driving to commit a robbery and has in the boot of the car his son's or daughter's toy gun or cowboy pistol, leaves the car some distance from the scene of the crime and proceeds to enter the bank and to rob it without the use of that gun, which he did not know was in the car?
The phrase "at some time" seems to take the period under consideration back to much earlier in the formulation of the act than the actual commissioning of the act. Therefore, we must ask whether those words add anything of importance to the clause.
Lord McCluskey: I regret to say that once again I deplore the grouping. Each of the amendments raises a different point. I support Amendment No. 23 which, as the noble and learned Lord explained, seeks to delete the words "incitement to commit murder" and so on. For the reasons outlined by the noble and learned Lord, I shall be happy to see that deletion. However, I do not support Amendment No. 28, which relates to "the victim's permanent disfigurement". As a matter of law, as I understand it, a permanent disfigurement means simply a scar. Therefore, quite a small scar, if it is permanent—and it normally will be—could be described as an aggravated assault and would accordingly extend the list substantially. That is quite distinct from the matter dealt with in Amendment No. 25.
I also support Amendment No. 36, as is obvious from my earlier remarks on one of my own amendments. I propose in due course to deal with the other amendments, but I repeat that it does not seem to make any sense to group amendments simply on the basis that they deal with qualifying offences under Part I of what will be new Schedule 5A.
Lord Mackay of Drumadoon: The amendments in this grouping to which noble Lords have spoken seek to widen the scope of the list in the schedule in some
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respects and seek in other respects to reduce its scope. I should like to deal with the amendments which have been mentioned specifically. I hope that I have a note of all of them, but if I trespass into debates which have yet to come, I apologise.
I turn first to Amendment No. 23, which was moved by the noble and learned Lord, Lord Hope. I am grateful to the noble and learned Lord for his explanation of why he thinks the amendment is necessary. The Government, however, are not persuaded that it is necessary and I am in a position to inform the Committee and the noble and learned Lord that in the course of the past few months there has been a case in Scotland in which a single accused was prosecuted—and, as I recall it, pleaded guilty—for incitement to commit murder and was sent to prison. I confess that I have no recollection of having heard of such a case previously, but that was a clear case of that particular crime. It was a serious matter which merited the accused being sent to prison. If the noble and learned Lord is interested, I shall be happy to provide him with the details of the case which are now in the public domain. For those reasons, the Government are not persuaded that that amendment should be accepted.
I turn now to Amendment No. 25, which also stands in the name of the noble and learned Lord, Lord Hope. This amendment deals with a point which is similar to that raised in an amendment which stands in the name of the noble Lord, Lord McCluskey, and to which we shall come in due course. The intention of the Bill as currently framed is that only convictions for non-consensual sodomy should be relevant for the purposes of Clause 1. The wording currently used seeks to achieve that objective by stating that sodomy or attempted sodomy shall be a qualifying offence where one party does not consent. In the context of sodomy, it is clear that the person against whom the act of sodomy is perpetrated—or the victim—is the party whose lack of consent is relevant. The person who perpetrates the act clearly always consents to it. Replacing the reference to the "party" who "does not consent" with a reference to "the complainer" who does not consent will, it is believed, be of little, if any, practical effect.
To take a fairly technical view of the matter, in some cases the victim of the act of sodomy does not complain to the authorities about the behaviour of the offender and it comes to the attention of the police by some other route. While such individuals may in some instances be commonly referred to as complainers, on one view they are not. For those reasons, the Government are not persuaded that the amendment is either necessary or helpful. As we are dealing with fairly technical matters, I undertake to read carefully what has been said about this and other amendments. I am open to further persuasion by informal means that the matter requires to be looked at further.
I move to Amendment No. 31, also in the name of the noble and learned Lord, Lord Hope of Craighead. The amendment proposes that the words,
"where at some time during the commission of the offence, the offender had in his possession a firearm"

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should be changed to "where at any time". The amendment spoken to by the noble Lord, Lord Sewel, also raised this particular issue. The view of the Government is that in this context "some" is the same as "any". While I do not believe that there is anything between us in principle, we are not persuaded that the change is necessary. However, as the point has been raised I am happy to consider it further.
The noble Lord, Lord Sewel, said that the use of the words "at some time" might lead to confusion as to whether or not the offender was guilty of a qualifying offence, as set out in paragraph 7 of the schedule. He cited the example of an offender who had a gun at home and was thinking about committing a crime or had a gun in his car and drove to commit a robbery but did not use it. In the latter example the gun was only an imitation.
Lord Sewel: I referred to his son's cowboy gun.
Lord Mackay of Drumadoon: I am obliged to the noble Lord. These are practical issues that require to be addressed in the context of establishing questions of guilt or innocence. From time to time when charges of assault and robbery are prosecuted there is an issue as to what time the commission of the crime begins and whether those involved in it as principals or under the doctrine of art and part fall properly to be convicted or should be acquitted because of an insufficiency of evidence. Obviously, the Bill has no plans to change the law in that respect.
The next amendment referred to by the noble and learned Lord, Lord Hope, was Amendment No. 36 which he correctly indicated touched upon issues of prosecution policy as much as anything else. The amendment does not seek to delete the offence from the list but to qualify it so that such offences—unlawful intercourse with a girl under 13 years of age—will count as qualifying offences only where the offender has attained the age of 16 years at the time of the commission of the offence. While one appreciates the concern of the noble and learned Lord that one should not deal harshly with youngsters who may almost unwittingly commit this offence, Clause 1 is directed to offenders who have been convicted twice in the High Court of offences. This offence would have to arise as the first of the qualifying offences for this amendment to have any relevance.
If such an offence were serious enough to warrant prosecution in the High Court, in accordance with the approach that the Crown takes to the prosecution of youths of that age, and it resulted in a conviction, it would be serious enough to warrant inclusion in the list, albeit that the circumstances of the particular offence might be relevant to the question of exceptional circumstances as discussed earlier. For example, one could imagine a 15 year-old youth being found guilty of an offence involving a girl of eight or 10 years of age. While not being prosecuted and convicted of rape, it could result in a conviction for a contravention of Section 5 of the 1995 Act. For that reason the Government believe that it should remain on the list. I hasten to assure the Committee that only in very few cases would offenders under 16 years be prosecuted in the High Court for that particular statutory offence.
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I move now to Amendment No. 28 which seeks to add a reference to "permanent disfigurement". The Government believe that on its own permanent disfigurement is not a sufficiently serious aggravation to warrant inclusion in the list, for reasons similar to those referred to by the noble and learned Lord, Lord McCluskey. Any assault resulting in serious injury would be relevant to severe injury to the victim or to the danger of his life, irrespective of the permanent disfigurement which might arise.
I turn finally to Amendment No. 39. I understand the concern expressed by the noble and learned Lord, Lord Hope, that the Scottish common law offence of lewd, indecent and libidinous practices or behaviour, which can be committed against children only, is broader than any offence in the English list of offences. Conduct which would result in such a conviction in Scotland would not result in such a conviction in England of an offence which would be a qualifying offence in England and Wales.
As I said earlier today, achieving a mirror image between the two lists is just not possible. The approach we have instead followed is to include in the lists for both jurisdictions offences which we consider to be of the same order of gravity or seriousness. Widening the list of relevant English convictions in the Bill by adding the four offences suggested by the noble and learned Lord would widen the scope too far.
I have looked in detail at the particular provisions in the Sexual Offences Act 1956 and the Indecency with Children Act 1960, to which the amendment refers. Offences against the first Act can be committed against adults as well as children. None of the offences specified attracts the penalty of life imprisonment, which is the common characteristic which runs through the lists in Scotland and in England and Wales. Indeed when one turns to the Indecency with Children Act 1960, the offence mentioned attracts a maximum penalty of two years' imprisonment.
The noble and learned Lord will be aware that there is currently under way in England a review of the penalties for statutory offences of a sexual character, particularly those directed against children. If the outcome of that review were to increase the penalties or in some way to revamp the offences, the constitution of the English schedule in this Bill and the English Bill would have to be looked at again. The view taken at the moment is that it would be wrong to introduce into the lists, north or south of the Border, any offence which does not attract life imprisonment, which they all currently do.
For those reasons, and on the clear undertaking that I shall look carefully at what has been said by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Sewel, I hope that none of the amendments will be pressed. If I have omitted to deal with one of the amendments, I apologise.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, is the list now closed or shall we have some additions to it by Report? Those of us who have to look closely at the Bill would like to know.

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The observations that have been made in the course of this debate make it clear that it is an act of folly to try to introduce crimes committed in England under a system which is statute based into a Scottish system which is based on the common law. We are not comparing like with like. That is why a substantial degree of unfairness may be introduced into the whole matter leading to a mandatory life sentence.
Lord McCluskey: Perhaps I may join in, because I have now discovered the meaning of Amendment No. 25 in the name of the noble and learned Lord, which, as has been pointed out, is similar in purpose to my Amendment No. 26.
Contrary to what the noble and learned Lord the Lord Advocate has just told the Committee, the word "complainer" is a well understood word in Scots law. For example, it appears three times in Section 270 of the Criminal Procedure (Scotland) Act 1995, which I have before me. It states:
"This section applies where … evidence is led by the defence … impugning the character of … the complainer".
It states also:
"This section applies where … the nature or conduct of the defence is such as to tend to establish … or to involve imputations on the character … of the complainer".
Subsection (4) states:
"In subsection (1) above, references to the complainer include references to a victim who is deceased".
Therefore, the word "complainer" is perfectly well understood in everyday Scots criminal practice as meaning a person who is a victim. In terms of the Act, which was passed by this House as a consolidation measure in 1995, it includes even a deceased victim. Therefore, the word "complainer" is perfectly well understood. It is for that reason that I tabled Amendment No. 26. The present wording of the provision is, I would submit, quite ludicrous. The qualifying offence appears on page 3 at line 15 where it states:
"Sodomy or attempted sodomy where, in either case, one party does not consent".
I suggest that the words "one party" should be deleted and the word "complainer" substituted. Therefore, the Bill should refer to sodomy or attempted sodomy where the victim does not consent because it is the absence of consent by the complainer or victim which turns consensual homosexual intercourse into a serious sexual assault. It is the complainer's absence of consent which matters. You cannot charge the offender if he did not consent. That is too ludicrous to even think about. You cannot charge the person who commits the sodomy of another and say, "Well you did not consent". That is just absurd.
I may have missed something in all this if there are three or more parties to a sodomy. But that is not my understanding of the term as it is used in Scots law. Accordingly, the provision is meaningless as it stands and the proper course is to take out the words either on the basis suggested by my noble and learned friend Lord
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Hope of Craighead, or, alternatively, to substitute the words "complainer". At the moment, it looks like some kind of silly joke.
Lord Hope of Craighead: In relation to Amendment No. 23, I am reassured by the observations of the noble and learned Lord that my experience is the same as his and that until recently the offence of incitement to murder has not appeared in Scottish indictments. But in view of its recent appearance, I recognise that there may be some point in its inclusion in this paragraph and I am content to withdraw that amendment.
As regards Amendment No. 25, I hope that in the light of my observations and in particular those of my noble and learned friend Lord McCluskey, the noble and learned Lord the Lord Advocate will give further thought to that matter. It seems confusing. I found it quite difficult to understand. My noble and learned friend mentioned the oddity which might arise if there were three parties involved in the enterprise, two of whom were trying to commit an offence against another. The essence of the matter is that something is done to somebody who is properly described as a complainer which I should have thought would qualify the sodomy or attempted sodomy for inclusion in this list. On the understanding that the matter will receive further consideration, I am content to withdraw that amendment.
Amendment No. 28 is intended to deal with the possibility that there had been an oversight in the Government's thinking in relation to what should be included on the list. I suggested the inclusion of the words, "the victim's permanent disfigurement". Of course, my noble and learned friend Lord McCluskey is right to say that, in many cases, it is not a serious offence. It is somewhat reassuring to find that the Government are prepared to recognise that some offences prosecuted in the High Court are not, after all, serious offences. As it appears that this is not an oversight and the matter has received consideration, I am content not to press the amendment.
As for Amendment No. 31, that is an amendment to which I should like the noble and learned Lord the Lord Advocate to give further consideration. It is a matter of finding the proper form of words to express the concept which is being described. The word "some" has its origin in the English Bill, but I do not see why we should be tied to that phraseology if we can find a better form of words for ourselves. It is really for the reasons that I outlined and which the noble Lord, Lord Sewel, mentioned that I suggest that it would be worth thinking about another way of expressing the concept.
I turn now to Amendment No. 36. I am reassured by what the noble and learned Lord said about prosecution practice. However, I should like to think that from now on one of the factors which a Lord Advocate will take into account when deciding whether to prosecute for that particular offence, in the case of an offender under the age of 16, is its effect for the future. That applies not only to the sentence which might be imposed for that particular offence but also to the consequences if it were to be prosecuted in the High Court in the future should there be a further offence.

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Finally, in regard to Amendment No. 39, it is an unfortunate situation that people who commit the offence of lewd conduct, to express it shortly, in Scotland will already, so to speak, have lost one life if they venture south of the Border and find themselves committing an offence on the English list. It is that kind of distortion that led me to suggest that this should be included in the Scottish list. I do not see why we should be affected by the fact that English legislation is defective in failing to set proper minimum penalties.
On the other hand, I understand that the matter has received careful consideration and I am grateful for that fact. I also understand that the whole problem of such offences in England is to be considered and it may be better to leave the matter over to allow that consideration to take place. I have no doubt that one factor that will be brought into account, if the Crime (Sentences) Bill is enacted, is whether the kind of offence to which we are referring this evening should be included in that list. If amendments to the English legislation are needed in order to achieve that aim, no doubt that will be done and no doubt the opportunity would then be taken to reflect that fact in Scottish legislation. For the various reasons that I have outlined, I am content not to press any of my amendments. With the leave of the Committee, I shall withdraw them in due course.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, perhaps I may correct a possible misapprehension on his part as to what I said earlier about assault to permanent disfigurement. I may be wrong, but I am unaware of it ever being the practice of the Crown to prosecute individuals charged with assault to permanent disfigurement in the High Court. If I gave that impression in my earlier remarks, I would not wish that to be understood by Members of the Committee. As the noble and learned Lord is well aware, the normal practice is for that aggravation to be added to assault to severe injury. That is the reason why the Government have adopted their position in relation to the matter. However, I can certainly repeat the undertaking that I gave earlier to look at the matter further. Indeed, I need say no more in that respect.
I am reminded that I may not have dealt explicitly with Amendment No. 27, although I believe that I referred to it in passing when dealing with one of the amendments tabled by the noble and learned Lord, Lord Hope. I am grateful for that reminder. The effect of this amendment would be to restrict the category of aggravated assaults which are qualifying offences to those which are aggravated through not only causing severe injury to the victim but also causing the victim's permanent disfigurement. This amendment would seek to require both elements to be established before an offence would qualify.
The Government believe that this would be an unnecessary and undesirable restriction because of the fact that severe injury may not always be accompanied by permanent disfigurement. I give an example which must occur from time to time in cases prosecuted in the High Court where a victim is the subject of a beating or a kicking with hands and feet. It is not uncommon for
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him to sustain serious internal injury without there being any permanent disfigurement whatsoever. That is why the amendment is deemed to be undesirable.
With regard to the question posed by the noble Lord, Lord Macaulay, as to whether the list was closed, I must say no for the reason that we have yet to deal with some of the amendments tabled by the noble and learned Lord, Lord McCluskey. The list cannot be said to be closed because it depends on what the Committee makes of those amendments. Equally if, on further reflection of what has been said this evening, the Government seek to amend or alter some of the qualifying offences, the list could not be said to be closed in that respect either. If Members of the Committee opposite wish to propose an addition at Report stage that can be looked at too. As present advised, the Government have no proposals to bring forward amendments to the list subject to the comments that I have already made in dealing with those amendments which have been spoken to so far.
9.30 p.m.
Lord McCluskey: With respect, the noble and learned Lord the Lord Advocate misses one of the points. The indictment may contain a charge of assault with the double aggravation of severe injury and permanent disfigurement. It is open to the jury to delete both aggravations or either or neither. A jury is directed that the question of whether an injury is severe is not a question of medical seriousness but is a jury question. It may well be that a jury would return a verdict of assault to permanent disfigurement even though it was not the practice of the noble and learned Lord the Lord Advocate to charge such an assault. I accept that that would not be his practice.
The difficulty is to understand why assault to severe injury should be a scheduled offence but assault to permanent disfigurement should not be. That is the difficulty that is raised by the amendment of my noble and learned friend Lord Hope of Craighead. Why should assault to severe injury be regarded as warranting the loss of one of the two "lives"—I rather like that metaphor—when assault to permanent disfigurement does not? What is the thinking that distinguishes between these two?
Lord Hope of Craighead: My noble and learned friend has picked up precisely the point that I wanted to make in reply to the noble and learned Lord the Lord Advocate. There was certainly no misunderstanding on my part about prosecution policy in this regard. I would not have believed for a moment that the noble and learned Lord the Lord Advocate would prosecute on its own assault to permanent disfigurement. I believe I have repeatedly made the point that Scottish juries can deal with indictments in a way which English juries cannot deal with counts in an English indictment. It is that kind of problem that has to be anticipated in the drafting of this particular schedule. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 and 25 not moved.]
Lord McCluskey: I take it that it is not technically possible to go back to Amendment No. 24. I see the

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shaking of heads. That is a pity. I shall come back to it on Report. I was confused by the listing. I confess that I have forgotten the number of the amendment being called.
Lord Mackay of Drumadoon: We are now at Amendment No. 26.
[Amendments Nos. 26 to 28 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 29:
Page 3, line 21, leave out ("or to ravish").
The noble and learned Lord said: Amendment No. 29 has not been discussed. It has nothing to do with the groups set out in the Marshalled List. The amendment refers to the wording at line 20 on page 3 of the Bill. The concept included in paragraph 6 of the qualifying offences schedule is,
"Assault, where the assault was carried out with an intention to rape or to ravish".
I do not know what that means. An intention to rape or an intention to ravish are interchangeable terms, as I understand it. I know of no difference between them. "Ravish" is a rather old fashioned way in Scots legal language of saying an attempt to rape. Perhaps the Government can explain.
I am sorry that I cannot ask them to explain where on earth "clandestine injury to women" in paragraph 4 came from. I have a good deal of authority to suggest that perhaps there is no such crime in Scotland, and certainly no nomen iuris for such a crime. I shall have to come back to that on Report. I beg to move.
Lord Mackay of Drumadoon: Perhaps I may be forgiven for suggesting to the noble and learned Lord, Lord McCluskey, that if he is interested in the inclusion of "clandestine injury to women" in the list, he might refresh his memory by reading the Committee stage in another place. It was suggested to the Government, I think by the Opposition, that that was a serious omission from the list. The Government were persuaded to take it on board, proving that the list was not in fact closed. If the noble and learned Lord seeks to take on both noble Lords opposite and myself at a later stage, we shall await with interest what he says.
The Government believe that Amendment No. 29 seeks to restrict the list in an unacceptable manner. As the noble and learned Lord is aware, assault with intent to ravish is a term currently used in the criminal courts of Scotland. In the first full week of this year I prosecuted in the High Court an accused on a charge of rape and, withstanding an insufficiency of evidence to justify seeking a conviction of rape, I sought from the jury, first, a conviction for attempted rape, or assault with attempt to ravish. That was the charge upon which the accused was convicted. There may be no difference in legal terms between an assault and an attempt to rape and an assault with intent to ravish. But both terms are used in the courts and to avoid misunderstanding as to whether one is included or one is not, and to avoid any accusation that the Bill is intended
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to amend the common law of Scotland so far as concerns the definition of offences, paragraph 6(b) is in the terms it is.
Lord McCluskey: One of the unfortunate difficulties is that when the English determine whether or not a relevant offence in their terms has been committed, they will find this curious expression:
"Assault … carried out with an intention to rape or to ravish".
It appears to me that, since there is no difference, the Act ought simply to go for one term or the other. I would prefer the more modern term, "to rape". I cannot understand why both terms are there when they both mean exactly the same thing. It will certainly confuse judges in England when they come to regard an offence of this kind under Schedule 5A as being a relevant offence for the purposes of the Crime (Sentences) Bill. Surely the noble and learned Lord the Lord Advocate will acknowledge that.
Lord Mackay of Drumadoon: It is no part of my responsibility to deal with any problems that judges in England may have in construing Scottish legislation. I merely say that, having sat through many hours of debate on the English Bill, among the many arguments deployed against that Bill from the Cross-Benches, populated by not a few noble and learned Lords, no one made that point. It may be, however, that we shall hear about it on Report.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, is the problem not created by including the word "or" in paragraph 6(b)? It suggests that they are two different offences. With respect, the point made by the noble and learned Lord, Lord McCluskey, is that they are one and the same thing. There is no need therefore to include the word "or", since it might suggest to people that the assault was not carried out with an intention to rape or to ravish. The two words mean exactly the same thing. Surely, since it is left to the judges to interpret the words "exceptional circumstances" before they impose an automatic life sentence, it will be open to the judge to explain that the word "rape" includes the word "ravish". Can it not simply be left to the judges and can we not delete "or to ravish", as the amendment suggests?
Lord McCluskey: I gather that the silence of the noble and learned Lord the Lord Advocate means that he does not intend to make any further reply. It is a pity. The Government drafted this Bill in an extraordinary hurry. I know the details of the drafting and early printing of the Bill when it actually "hit the stands". It came out with great speed. Yet the Government are determined to defend almost every word of it. I suppose that is to ensure that it passes hastily through both this Chamber and another place. I hope that the noble and learned Lord the Lord Advocate will take the opportunity to reflect on this matter before Report stage and decide whether he needs those words in the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 30 and 31 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 32:
Page 3, line 23, after ("offender") insert ("personally").
The noble and learned Lord said: This amendment raises a matter that has not yet been discussed. At line 23, on page 3 of the Bill the Committee will see that the person referred to is an offender who,
"had in his possession a firearm or an imitation firearm".
I am concerned with that notion of possession.
An offender might well be held to be in possession in the ordinary legal sense although, to the ordinary layman, he did not possess at all. In other words, there can be a kind of constructive possession. It is not uncommon in Scotland to find a person starting out the evening with a firearm or another kind of weapon who then parts with it to a companion—very commonly, a female companion—and is then not in a lay sense in possession but is in a legal sense in possession of the firearm.
Accordingly, by adding the word "personally" the amendment seeks to make sure that the offence, which appears as a qualifying offence, is an offence where he personally has possession of a firearm or imitation firearm during the commission of the offence. I beg to move.
Lord Mackay of Drumadoon: This amendment touches on issues similar to those discussed previously in relation to Amendment No. 30. As I mentioned when dealing with that amendment, there is a concern that amendments along these lines would unduly narrow the circumstances in which robbery with the use of a firearm would be a qualifying offence for the purposes of an automatic life sentence.
As I think the noble and learned Lord, Lord McCluskey, would be the first to acknowledge, when the doctrine of art and part is being explained to juries in all manner of cases, the practical example given in many instances is that of the bank robbery when one person has the gun, one person has the bag to put the money in, one person stands out in the street as the look-out and the fourth person is in the car. In that situation, if they are all proved to have been involved in the carrying out of the bank robbery with the use of a firearm, they are so convicted, even though three of them may never have touched the weapon from the beginning of the commission of the offence to the end of it.
It would be most unfortunate if this provision in the schedule were to be amended in such a way that only those offenders who had a weapon in their personal possession were to be caught and the others were not. However, I will look at the provision again in the light of what has been said. If it can be recast in a way which meets the concerns expressed earlier by the noble Lord, Lord Sewel, and now by the noble and learned Lord, Lord McCluskey, I will promise to bring back a tidying-up amendment at Report. However, I feel that both the amendments, and in particular the one we are
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now discussing, would have a seriously restricting effect on the Bill. For that reason the amendment is not acceptable.
Lord McCluskey: I am grateful that the noble and learned Lord will look at the matter. He will find when he does so that the word "possession" appears in paragraph 7, to which this amendment relates, and also in paragraph 8(a) where there is reference to the possession of a firearm in terms of Section 16 of the Firearms Act 1968. Those are closely related in terms of the provision and it is important that the Government should know what the intention is in relation to constructive possession.
I am rather alarmed to hear the noble and learned Lord say that a person who never enters the bank but sits outside in the car is a party to the possession of a firearm by a person inside the bank. He may be guilty art and part of an armed robbery, but to say that he is guilty art and part of the possession of a firearm is a strange thing indeed. However, I shall await the result of the noble and learned Lord's further consideration. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 33:
Page 3, leave out line 32.
The noble and learned Lord said: Amendment No. 33 relates to a matter that we have not discussed. The provision at line 32 on page 3 includes among the qualifying offences lewd, indecent or libidinous behaviour or practices. We have had some discussion of that. Hitherto we looked at the fact that there is no exact equivalent in England. However, the offence in Scotland is described in a number of cases which are conveniently summarised in Christopher Gane's book Sexual Offences. I refer to page 74. He says—and I respectfully agree—that:
"It is an offence at common law to engage in 'lewd, indecent and libidinous practices and behaviour' towards children (girls or boys) below the age of puberty, with or without their consent."
I pause to say that this provision in the Bill does not refer simply to children but to any lewd, indecent or libidinous practices. Gane goes on to say:
"The offence may take the form of an indecent handling of the child by the accused or inducing the child to indecently handle the accused. There is no need for any physical contact between the parties and knowingly to engage in indecent conduct in the presence of a child may constitute lewd and libidinous practices".
There is also a case in which a husband had sexual intercourse with his wife in the presence of a child. That was held to be him engaging in lewd and libidinous practices for which he could be prosecuted, and he was prosecuted quite recently. I wonder what the Government's thinking is in relation to this matter and why it is that an offence which is capable of being so extremely minor should be included in the list of qualifying offences. I beg to move.
Lord Mackay of Drumadoon: As I think has been made clear earlier, if a conviction for lewd and indecent and libidinous behaviour or practice was to be relevant

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to the automatic life sentence provisions, it would have to be a conviction in the High Court. The view has been taken that such convictions do amount to convictions for serious sexual offences, whatever minor contraventions of that common law crime may occur, and might be prosecuted in the law courts: whether sheriff and jury, sheriff summary or the district court. That is the reason why, for the purposes of protecting those who are the victims of serious sexual offences, paragraph 9 of the schedule exists.
I can do no more than remind the Committee of what I said at Second Reading, that it would be for the prosecutors of the day, when this clause comes into effect, the Crown counsel, to decide whether or not the circumstances warrant the case being heard in the High Court. If such a conviction followed on as a minor charge in a High Court indictment where other more serious charges had not been proved, then that would obviously be the circumstances of the particular offence, whether it be the first or the second, and it would be going over old ground to go over what we discussed earlier as to whether or not those facts could be prayed in aid by counsel in seeking to persuade the judge that this was a case where there were exceptional circumstances which entitled the judge, in the exercise of his discretion, not to impose an automatic life sentence.
Lord Hope of Craighead: I would like to support Lord McCluskey's amendment to this extent, that it again raises the problem of the freedom a jury has to deal with the charges before it in the indictment. The noble and learned Lord has referred to one possibility which is where a whole series of charges are brought into the indictment, some of which are comparatively trivial but they need to be charged together with the others for evidential reasons, and due to some accident of evidence or the way in which the jury approach the case, all the serious charges are deleted and a few, possibly only one very minor charge, which would have gone to the sheriff court on its own, is all that is left. The fact is that the prosecutor does not control the jury. The jury have complete freedom in these matters under the direction of the trial judge to decide what to do. For my part, I fully support the broad idea that an offence of this kind, committed against children, is one of the most pernicious offences and requires very careful consideration by the Government. The problem is created by the width. I have tried to think of a way of qualifying the phraseology. I confess I have not been able to come up with any words which I am prepared to put forward by way of amendment. But it may be, on further consideration, the Government will be able to find some words.
There is one other point I should make, and that is this. This offence has been considered recently by the High Court in Scotland and the view was taken in a case, the name of which escapes me, that it is not confined to offences against children. It may be worth considering whether one way of qualifying this to deal with the particular point to which I think it is directed is to include a reference to children so that it is at least limited to that and does not include some of the more
1808
bizarre examples of lewd conduct committed between adults where there is no reason to think that anybody is seriously affected by the conduct. So, to that extent, I support what Lord McCluskey has said.
Lord McCluskey: I am grateful for that support. I should simply draw the Lord Advocate's attention to the possibility of using the notion of the complainer being below the age of 16, or some such thing. That would ensure that where an adult used lewd and libidinous practices towards a child within the meaning of the 1995 Act—approximately a person below the age of 16—then that would be a qualifying offence. One can understand that more readily.
My noble and learned friend took the words out of my mouth in relation to what the jury can do, but I want to go on from that. The prosecutor may decide to put the accused person in the High Court on a much more serious charge and the jury may do as they are entitled to do and reduce the charge, so that it comes out in effect as a charge of lewd and libidinous practices. The circumstances may not be in the least exceptional. There is nothing exceptional about an older brother, a babysitter or the boyfriend of the mother interfering and using lewd and libidinous practices towards the child. At the moment, such offences tend to be charged summarily. But the offender can be convicted in the High Court by a jury if it is decided to dilute the charge in some way.
What worries me about that is that, if the prosecutor found that the jury did not accept his principal submission—namely, that the accused should be convicted of a more serious offence—but returned a verdict which was essentially for lewd and libidinous practices, and the prosecutor says to himself, "I would never have brought this case for such a result into the High Court", then the prosecutor will not move for sentence. If the prosecutor does not move for sentence, that person, instead of going to prison for life, walks free. I do not think that the public will readily understand that unreviewable exercise of a prosecutor's discretion when he simply declines to move for sentence.
I hope that the noble and learned Lord the Lord Advocate will give some thought to that particular matter, which is very serious indeed.
Lord Mackay of Drumadoon: This debate could go on incessantly. I responded to the noble and learned Lord's amendment. I promised to look at it further. Further contributions have been made by both noble and learned Lords. I do not think it is appropriate to respond in detail to the points made. I feel that we should move on to the next amendment.
Lord McCluskey: I do not pretend that that is a satisfactory answer but obviously I do not seek to divide the Committee at this time of night. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 35:
Page 3, leave out lines 33 to 35.
The noble and learned Lord said: This amendment relates to item 10 in the list:
"Any offence committed by contravention of section 5(1)"—
that is to say, unlawful intercourse with a girl under the age of 16 years.
I should just like to understand the Government's thinking on this matter. I understand the general thrust of the provisions to be that the Government seek to protect the public. In what sense is this type of offence indicative of a threat to the public? In what sense is it associated with public danger? I beg to move.
Lord Mackay of Drumadoon: This amendment seeks to remove from the list an offence which I am sure many noble Lords would view as potentially very serious indeed. That is borne out by the fact that Parliament enacted that the statutory penalty for conviction can be up to that of life imprisonment.
In order to obtain a conviction for rape, the prosecution must prove that the act was committed against the will of the girl involved—the complainer, as that term has been discussed in earlier amendments. Requiring a young girl who would be covered by the provisions of this Act—namely, a girl under the age of 13 years—to give evidence about the issue of consent is, I am sure the Committee will agree, neither desirable nor appropriate. Presumably, that is why Parliament enacted this provision, which was consolidated recently as Section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995.
As I acknowledged in earlier discussion, it is possible that this offence could be constituted by somebody under the age of 16 engaging in sexual experimentation with somebody just under the age of 13 but, if those were the factual circumstances, in my submission, it would be very unusual indeed and very difficult to contemplate that that would result in a High Court conviction. On the other hand, to cite an example I gave earlier, if the girl involved was aged eight, nine or 10 and the offender was much older than in the earlier example I mentioned, not only would there have been considerable danger to the girl involved in the particular offence, but the risk of that recurring undoubtedly results in a risk to the public.
That is why, following the policy which must have lain behind Parliament allowing the penalty of life imprisonment for a conviction under this section, the Government believe that this provision should be tenth in the list of qualifying offences.
Lord McCluskey: I am grateful to the noble and learned Lord for explaining the position. He has given an indication, now as earlier, that he will have regard to the age of the offender, which is the subject matter of Amendment No. 36 in the name of my noble and learned friend Lord Hope of Craighead. Given his
1810
assurances in relation to that, I beg leave to withdraw Amendment No. 35.
Amendment, by leave, withdrawn.
[Amendments Nos. 36 and 37 not moved.]
10 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 38:
Page 3, leave out lines 38 to 41 and insert—
("11. Any of the following offences committed in England and Wales, namely—

(a) an attempt to commit murder, a conspiracy to commit murder or an incitement to murder;

(b) an offence under section 4 of the Offences Against the Person Act 1861 (soliciting murder);

(c) manslaughter;

(d) an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent);

(e) rape or an attempt to commit rape:

(f) an offence under section 5 of the Sexual Offences Act 1956 (intercourse with a girl under 13);

(g) any offence committed by contravention of—

(i) section 16 (possession of a firearm with intent to endanger life or cause serious injury);

(ii) section 17 (use of firearm to resist arrest); or

(iii) section 18 (carrying a firearm with criminal intent)

of the Firearms Act 1968;

(h) robbery, where at some time during the commission of the offence the offender had in his possession a firearm or imitation firearm.

12. Any of the following offences committed in Northern Ireland, namely—

(a) an offence mentioned in subparagraph (a) to (e) of paragraph 11 above;

(b) an offence under section 4 of the Criminal Law Amendment Act 1885 (intercourse with a girl under 14);

(c) an offence under Article 17 (possession of a firearm with intent to injure), Article 18(1) (use of a firearm to resist arrest) or Article 19 (carrying a firearm with criminal intent) of the Firearms (Northern Ireland) Order 1981; and

(d) robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Order.

PART III
INTERPRETATION
13. In paragraphs 7 and 11(h) above "firearm" and "imitation firearm" have the meanings respectively given to them by section 57 of the Firearms Act 1968.".").
The noble and learned Lord said: I spoke to this amendment with Amendment No. 4. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 39 and 40 not moved.]
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Lord McCluskey: This matter has been the subject of some discussion before now. I deeply regret—and I have not made any secret of it—the Government's

1811
sudden decision in June 1996 to introduce American-style mandatory sentencing. It has been said by us, the critics of the Bill, and admitted today by the noble and learned Lord the Lord Advocate, that this matter was preceded by no external consultation whatever. I do not know what consultation there was within the Government. I should be interested to know whether the Lord Advocate himself was consulted before the Government's intention was announced.
The Secretary of State, I believe, was asked for, but refused, an independent inquiry into the Maguire case, which gave rise to his concern in this matter. What he did do, however, was make the announcement which is now enshrined in Clause 1. There was no consultation whatever about the principle. We have to ask what is the principle.
The principle enshrined in the clause is that a man or a woman should go to prison for life if twice convicted in the High Court for any one of a huge number of offences. It is difficult to get the exact number but it is certainly in Schedule 1 something in the order of 19 or 20. The principle that is swept away on the basis of this one case, the tragic Mhairi Julyan case, is a principle which has been part of Scots law since time immemorial. It was much praised by Baron Hume and was commended by the previous Secretary of State, Ian Lang, in relation to an earlier Bill in another place.
However, this kind of mandatory sentencing is not without precedent. We can find it at both federal and state level in the United States, and the movement in both state and federal jurisdictions has been a movement towards removing judicial discretion. In California it started in 1976 and the discretion of the judges which, until that time, had been absolute and unreviewable, was removed for most serious offences. In 1994 the California legislature adopted the "three strikes and you're out" policy; in other words, two serious felonies followed by one felony meant one had to go to prison for not fewer than 25 years and it could be substantially more. The result is that in California the prison population in 20 years has trebled.
Those are undeniable facts. The Government know them and do not face up to the fact that our prison population will rise in a dramatic way because of provisions of this kind. In California the court system has been thrown into chaos because of reasons mentioned by Members of this Committee and the Committee on the Crime (Sentences) Bill. There is no point in pleading guilty to the second offence or in California to the third strike, because one is bound to go to prison for 25 years or more and the judge there, as here, has no discretion. The other horrific factor is that the prosecutor in California can enter into plea bargains, and does so. He reduces charges to avoid people pleading not guilty and accepts crimes as misdemeanours which are truly felonies in order to avoid the application of the principle of three strikes.
The cost of building prisons in California is absolutely prohibitive. It is the greatest growth industry in the state. It is wellknown among lawyers and others in California that there is a proposal to erect road signs on the borders of Nevada and Arizona reading,
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"Welcome to California, the wholly-owned subsidiary of the California Department of Corrections". That expresses the point that it is a huge growth industry.
When I visited California some two years ago looking at this matter, there was no discernible effect upon crime rates. Closer studies since that time have indicated that there is no correlation between a rising prison population and a falling crime rate. The curious thing is that so many crimes are committed in California that one of the great difficulties is to pick a jury where the members of the jury are not themselves either victims or related to perpetrators of felonies within the state.
It is the crime rates that matter. That is why so many people who were consulted—the Lord Advocate has access to the consultation papers—did not say, "Let the punishment fit the crime"; they said, "Let the punishment reduce the crime". That is an entirely different matter. Quite apart from state law, exactly the same phenomena happened in federal law. Until 1984 federal judges in the United States had total discretion and that discretion was unreviewable. There was no national sentencing policy. Then the Sentencing Reform Act 1984 was enacted.
The Act was sponsored by two senators—Edward Kennedy and Strom Thurmond from the liberal and right wings respectively. Senator Kennedy was anxious to arrive at equality of sentencing for minority groups, especially blacks, who tended to come out much worse as a result of the penal system. Strom Thurmond was anxious to double or treble the sentence for all criminals. They therefore combined forces and produced the Sentencing Reform Act 1984 with what are called "mandatory guidelines", though that is an oxymoron, as Members of the Committee will recognise. In the event, judges are supplied with a matrix containing about 300 boxes and they simply use a computer or calculator to find their way into the appropriate box, having regard to the characteristics of the offence and the offender, and end up having to give a sentence in respect of which there is almost no discretion.
Experience in relation to those federal practices shows that judges go below the guidelines, as they are allowed to do in exceptional circumstances, in 1.5 per cent. of cases. Prosecutors can move to go below the guidelines and do so in 15 per cent. of cases, so the prosecutor exercises the power to go below the guidelines 10 times as often as the judge. That is what has given rise to what is called the "co-operation paradox". American experience, particularly of drugs cases, demonstrates that when you have the supply of drugs on a commercial scale within a community, the person in charge is usually a white and the persons who are doing the donkey work are usually members of minority groups. When the police bust the ring and require evidence, the person who can give the best evidence is the leader of the ring, so he co-operates with the prosecutor. He is then not prosecuted for the serious offence; he is charged with a misdemeanour. He gets up to four years in prison, but is usually out before that. The "donkeys", who are usually blacks or members of other minority groups, get a minimum of 14 years in relation to any trafficking in drugs.

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The result of all those experiments in the United States is, first, that since 1984 the federal prison population has more than doubled; the biggest villains escape the long terms; and the minority groups get very much longer in prison than the whites. Accordingly, the Chief Justice of the United States, William Rhenquist, in testimony to a congressional committee warned that we were in a state of facing what he called,
"the law of unintended consequences".
One sets out with what may be described as excellent intentions, but achieves almost the opposite. There is no satisfactory evidence of that policy having any deterrent effect on crime in the United States. Worse still, rehabilitation, which was at the heart of the American penal system until the mid-1970s, has virtually disappeared. It has become too expensive.
Against that background and given the experience that one can see across the water, why on earth have the Government gone so wholeheartedly for this proposal? Why, after studying the matter, have the Government decided to do a kind of U-turn? Why have the Government done that in the face of opposition from the Faculty of Advocates, the Law Society of Scotland, the judiciary and many other bodies, including the University of Dundee?
The university has produced an extremely articulate paper on the matter. The Lord Advocate no doubt has a copy; I have one and have read it. How do the Government answer the criticisms which were outlined in that paper? That paper points out the fact that the practical difficulties are absolutely enormous. It states that the pressure on the prosecutor to plea-bargain would increase; the defence would insist on pursuing the case to trial and some juries might be reluctant to convict. Many ethical and other issues are raised in that paper, which also refers to studies which illustrate that the judiciary has significantly increased sentence length for serious violent and sex offences over the past 10 years in Scotland. Given that background, is it necessary to move to mandatory sentencing when all the experience of that policy in the United States is so alarming and disappointing? That is why I oppose the Question that Clause 1 stand part of the Bill.
10.15 p.m.
Lord Thomas of Gresford: I support everything that the noble and learned Lord has just said. I had hoped that we might get a little more light from the noble and learned Lord the Lord Advocate which might assist judges in the future. During our debates on Clause 1, there was a reference to the article in the Glasgow Herald by the Solicitor-General, Mr. Paul Cullen. It is interesting to see what he says in that article:
"Equally there is nothing unprecedented or revolutionary about mandatory sentences. Such penalties have long been the norm for offences ranging from murder to drink-driving.
Nothing in the Bill will reduce judicial discretion. Life sentences of this kind are already available to the courts in dealing with the worst cases of serious crimes. What the Bill proposes is that, save in exceptional circumstances, life sentences should apply automatically to those convicted for a second time of serious violent or sexual offences".
1814
Those words have been put to the noble and learned Lord the Lord Advocate on a number of occasions to see whether he agrees with the Solicitor-General. He has told us that he approved the article before it was published and had sight of it. No doubt that is his interpretation of the purpose of Clause 1: that nothing in the Bill will reduce judicial discretion. He told the noble and learned Lord, Lord McCluskey, that the overall discretion of the sentencer was not altered by the Bill. I will check it tomorrow in Hansard, but that is my note of his understanding of what the Solicitor-General said.
What is the purpose of introducing this Bill if the overall discretion of the sentencer is not altered? On this interpretation it is still open to the judges to determine the appropriate sentence simply by using the words "exceptional circumstances". In the course of this debate, I have asked the noble and learned Lord the Lord Advocate to explain his understanding of "exceptional circumstances". His response is that it is for the court to construe it; in other words it is for the judges in Scotland who have the duty of carrying out the provisions of this Bill to decide for themselves what are exceptional circumstances. That is the message that goes out from the Lord Advocate to the judges for their understanding of the Bill.
This opens up all kinds of possibilities. Not a single limitation has been placed upon this interpretation of "exceptional circumstances" by the Lord Advocate. He has not suggested that the courts should do anything other than apply what they consider to be just and proper in their interpretation of the Bill and in the sentencing exercise that they carry out. Although I oppose this clause, the result of today's proceedings is to demonstrate that the courts may make of "exceptional circumstances" what they will, and judges may continue to do what they consider does justice in the circumstances of the individual offender who is before them.
Other reasons for attacking Clause 1 have already been referred to. I make three very short points. As far as concerns the additional number of prisoners that results from the passing of this Bill, mainly under Clause 1, the Explanatory Memorandum states that there will be an increase in the prison population of as many as 2,200 five years after implementation. Therefore, the envisaged increase in the prison population of Scotland is from 6,200 to 8,400 over five years. The cost of that in terms of expenditure on prison places will be £65 million to £100 million per annum at current prices. Is this justified? As the noble and learned Lord, Lord McCluskey, has said, does the American experience teach us that an investment of that degree of resources is worthwhile? I suggest that the evidence is to the contrary.
As for juries, at one point the noble and learned Lord the Lord Advocate referred to what I said during the course of the Crime (Sentences) Bill, that, naturally enough and if appropriate, I would reveal to a jury the fact that my client had committed a qualifying offence and was likely to receive a life

1815
sentence if convicted of the offence for which he was before the court in the particular case. He expressed some surprise.
I am sure that in the course of his career the Lord Advocate must on many occasions have revealed his client's record for a variety of purposes. It may be that if one is defending someone on a charge of rape one would not reveal a recent rape conviction, but there are circumstances which might arise under the Bill where the qualifying offences are of such a varied character that it would be appropriate to reveal the fact that a life sentence awaited the defendant if convicted. He suggested that that would be unprofessional. I do not accept that for a moment.
If one is instructed by one's client to put forward the fact that he faces a life sentence as a result of a conviction on the offence upon which he is before the court, then one would do that. One would certainly advise him to do it if it were appropriate.
The third matter to which I want to refer is that mentioned by the noble and learned Lord, Lord McCluskey—plea bargaining. It is undoubtedly the case that there would be pressure upon both the prosecutor and the defendant to come to some compromise which would avoid the drastic consequences of a mandatory life sentence. It happens in all jurisdictions. It happens in this jurisdiction that lesser charges are offered and lesser pleas are accepted. This is a disaster of a clause. I am certain that were it ever to come into force it would quickly prove to be unworkable.
Lord McCluskey: I appreciate that I have already spoken, but in view of what the noble Lord said, the resource implications dealt with on page viii relate to Part III of the Bill, not Clause 1. However, Clause 1 is dealt with towards the foot of the page where it states:
"It is anticipated that the proposals in Clause 1 for automatic life sentences will have very little impact on the prison population in the initial years following implementation",
and it gives reasons for that. It is for that reason that I asked the question to which I received the answer that there are 3,300 people at risk. As the recidivism rate is extremely high for that type of offender within a period of two years from leaving prison, I should like to know from the Lord Advocate when it was that they first discovered the figure of 3,300. I suspect that it was when they looked it up in answer to the question that I asked.
Curiously enough, what the memorandum goes on to say in the last paragraph of that page is:
"The proposals in Part III and in Clauses 1 and 2 are likely to have significant implications for the work of the Sheriff and High Courts … It is likely that a proportion of accused people who currently plead guilty will choose to maintain not guilty pleas and to pursue appeals against conviction".
They acknowledge that there is likely to be an effect upon the criminal justice system of a very disruptive kind.
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The last point that I wish to mention—I shall not speak further in relation to this clause, I hope—is that the Dundee study refers to the fact that there is a wealth of criminological research on risk prediction. It states:
"These studies suggest that such a proposal"—
that is, in Clause 1—
"is in danger of under-identifying those who are likely to commit serious crimes in future and of over-predicting the number of offenders who will re-offend. While a previous history of offending is a key predictor of future offending, it must be combined with other factors, should be more than two incidents and does not necessarily predict offending of the same type or at the same level of seriousness".
Those are important matters which have been the subject of serious study which the Government seem to have swept aside.
Lord Mackay of Drumadoon: In the course of responding to a number of amendments this evening, I have set out the reasons why the Government believe that Clause 1 should stand part of the Bill. For that reason, having regard to the lateness of the hour, I see no point in repeating what I said earlier other than to confirm that the Government believe that when one is dealing with people who have offended repeatedly and who have been convicted in the High Court on a second occasion of serious sexual or violent crimes, this should be the procedure by which they are dealt with.
However, I should like to deal with a number of points raised by Members of the Committee who have spoken. First, I deal with the matters raised by the noble and learned Lord, Lord McCluskey. I have sat through the proceedings on the English Bill and this Bill and, until the noble and learned Lord's speech, nobody had suggested that the Government's proposals for automatic life sentences equiparate with the "three strikes and you are out", which apply in various states and federal jurisdictions in America. On the contrary, as I indicated earlier this afternoon, it has been acknowledged, as was confirmed by my noble friend Lord Carlisle, that the introduction of automatic life sentences need not necessarily lead to any increase at all in the prison population. Whether it does depends on the individual assessment by the Parole Board of individual prisoners in the light of the information then available.
It may be that the difficulty which the noble and learned Lord, Lord McCluskey, had with the provisions of the 1993 Act lie behind his assertion that automatic life sentences would lead to a rise in the prison population; I know not. But it has been acknowledged—and I say correctly acknowledged—that that need not be the case.
The noble and learned Lord asserted also that there will be no point in pleading guilty. Whether under the automatic life sentence provision in Clause 1 or in relation to the mandatory sentence for drug traffickers provided in Clause 2, there is a benefit in pleading guilty in that the period spent in custody as prescribed by the judge can be reduced in both cases to take account of a plea of guilty. As it is now proper for the courts in

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Scotland to have regard to a plea of guilty in fixing a period spent in custody, there is no reason to suppose that those provisions will not have some effect as well.
As I said on Second Reading—and I stand by it—in relation to plea bargaining, it will be the duty of any Lord Advocate and his advocate deputes, Crown counsel, to respect the Bill if it becomes law in the same way that judges would be required to respect the Bill if it became law. Time and time again, indeed since Second Reading, as Lord Advocate I have to take decisions as to which charges to prefer and which pleas to accept. I know that as night follows day that will have an effect, and sometimes a significant effect, on the period of time which an individual will spend in prison or, indeed, if he will spend any time at all in prison. That is the role of Crown counsel and the Lord Advocate and I see no reason why that role should not continue to be discharged in a perfectly responsible manner.
A point was made by the noble and learned Lord about the cost of building prisons. As he said in his intervention, the increase in the prison population depends on the provisions in Part III and the extent to which, if at all, judges in Scotland reduce their sentences in the event of those provisions coming into force. The Government have set out their position in the Financial Memorandum and we can no doubt return later to those issues. I do not have available to me information as to when the 3,300 figure was first collated, but I think I dealt with that earlier in the debate by referring to the fact that, whether or not there were life sentences, if any of these individuals was convicted, he would run a strong prospect of being sent back to prison.
The point raised by the noble Lord, Lord Thomas, about the additional prison population has already been answered. With regard to the practice of revealing previous convictions to a jury, in my experience as a defence counsel, I do not recall ever having done it. I am not saying that it has never happened. All I do say, on the basis of my experience of having defended many accused persons as a solicitor, having defended quite a few as a counsel and having prosecuted on many occasions, is that it is not normally the practice in Scotland for the reasons articulated by the noble Lord, Lord Thomas. As he said, it is so in England, although I have to say that the views he expressed, both today and on a previous occasion, have not been supported from many quarters as being the way in which defence counsel are likely to proceed. The point about plea bargaining has already been dealt with.
I accept that certain Members of the Committee do not support the policy but, in my submission, it is a policy which the Government have laid fairly before the House. I therefore invite the Committee to accept that Clause 1 should stand part of the Bill.
10.31 p.m.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 29; Not-Contents, 10.

Division No. 2

CONTENTS

Blatch, B.

Long, V.

Brougham and Vaux, L.

Lucas, L.

Carnegy of Lour, B.

Lucas of Chilworth, L.

Chesham, L. [Teller.]

Luke, L.

Coleridge, L.

Lyell, L.

Courtown, E.

McColl of Dulwich, L.

Cumberlege, B.

Mackay of Ardbrecknish, L.

Dean of Harptree, L.

Mackay of Clashfern, L. [Lord

Denton of Wakefield, B.

Chancellor.]

Ferrers, E.

Mackay of Drumadoon, L.

Goschen, V.

Marlesford, L.

Hemphill, L.

Strathclyde, L. [Teller.]

Henley, L.

Trumpington, B.

Inglewood, L.

Ullswater, V.

Lindsay, E.

Wilcox, B.

NOT-CONTENTS

Carlisle, E.

Mar and Kellie, E. [Teller.]

Hope of Craighead, L.

Monson, L.

Hylton, L.

St. John of Bletso, L.

Kintore, E.

Thomas of Gresford, L. [Teller.]

McCluskey, L.

Wigoder, L.

Resolved in the affirmative, and Clause 1, as amended, agreed to.
10.40 p.m.
Clause 2 [Minimum sentence for third conviction of certain offences relating to drug trafficking]:
[Amendment No 41 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 42:
Page 4, line 12, leave out from beginning to ("was") in line 22 and insert ("at any time after the commencement of section 2 of the Crime and Punishment (Scotland) Act 1997, and one of the two other offences").
The noble and learned Lord said: The purpose of the amendment is to avoid retrospectivity in relation to the application of the clause. In case your Lordships missed that in the hubbub from those leaving the Chamber, having voted and not having listened to the earlier debate—I hope that they will not prevent your Lordships from listening to my remarks on this amendment—I shall repeat what I said. The purpose of the amendment is to avoid retrospectivity in relation to the new Section 205B(1).
A person can become qualified to receive the mandatory sentence envisaged by this new section if he has pled guilty before the Act comes into force; for example, in the sheriff court. It appears to me a matter of principle that, when one decides whether or not to look at previous convictions of this kind, one should bear in mind that when people pled guilty to such offences in the sheriff court on earlier occasions they had no idea that they were thus becoming qualified to receive the minimum mandatory sentence imposed by the new section. It is simply because of the point of principle that I raise the matter. I shall return to the principle of the clause at a later stage. I beg to move.
Lord Mackay of Drumadoon: The amendment would have the effect of allowing the court to ignore

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any convictions obtained prior to commencement of this section which an offender might have for trafficking in Class A drugs. The Government consider that it would be very undesirable for that to occur. It would set back the practical implementation of the provision for some considerable period of time.
As I said earlier when the issue of retrospection arose, when the clause comes into effect people will be aware that, if they have such convictions from the past, the legislation will not impose any additional penalty on them; but if they re-offend in the future, it will. I believe that that is a perfectly respectable policy to adopt; it is a perfectly respectable policy for Parliament to approve; and, indeed, it does not raise the issue of retrospection as it is normally understood. Therefore, there is no sound reason for accepting the amendment.
Lord McCluskey: In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey Lord McCluskey moved Amendment No. 43:
Page 4, line 25, leave Out ("shall") and insert ("may").
The noble and learned Lord said: This amendment raises again the question of judicial discretion. I shall put the point very shortly this time. The main objection that I have to the clause is that I cannot conceive of any circumstances in which a person appearing on indictment in the High Court on a charge of trafficking in a Class A drug with two previous convictions for such an offence would not get at least seven years.
Perhaps the noble and learned Lord the Lord Advocate could answer this question—he could easily find it out by reference to the information system—how many cases have there been in the past one or two or five years in which a person has been convicted in the High Court of trafficking in a Class A drug and has been sentenced to fewer than seven years when he has two previous convictions of the same character? I think he will find the answer will be none. I think we are entitled to know that in case it has any bearing upon the assessment of costs because it looks from the explanatory memorandum as if the Government do not expect any addition to the cost of anything as a result of the provisions in this clause.
My real objection is that here we depart from the principle of allowing judges judicial discretion and we do so for reasons which are purely gestures. This clause, if enacted, will make no practical difference to the sentencing policy or the sentencing practice in any case at all. I cannot think of exceptional circumstances that would enable a judge not to send a person to prison for at least seven years for a third such offence. Indeed the noble and learned Lord the Lord Advocate will be well aware of the case of Lee in which a first offender aged 17 or 18 with no previous convictions, handling about £500 or £600 worth of a Class A drug, was sent to prison on his first conviction for four years by the Appeal Court. That sets the standard for the first conviction. Therefore the idea that one needs this clause makes no sense to me at all. Can the noble and learned
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Lord the Lord Advocate explain how many cases there have been in which judges in similar circumstances have imposed a penalty of fewer than seven years? That would enable me to consider whether I pursue this matter. I beg to move.
10.45 p.m.
Lord Mackay of Drumadoon: I am happy to explore whether the statistics to which the noble and learned Lord has referred will enable me to answer the precise question regarding the one or two-year period as he requested. At the present time, as he fully recognises, this amendment would render the clause meaningless. On that basis it is unacceptable to the Government. I should like the noble and learned Lord to withdraw it.
Lord McCluskey: I think the noble and learned Lord has missed my point which is that the clause as it stands is meaningless simply because no judge could possibly refrain from imposing a sentence of at least seven years for a third conviction for trafficking in a Class A drug. If there is a justification for this clause, it must be that judges have refrained from imposing such sentences in the past. Surely that is the only justification for bringing forward a clause of this kind. Surely the noble and learned Lord the Lord Advocate can deal with that question, and surely he ought to know the answer to my question as to how many convictions of this kind there have been within any significant period of time where the judges have refrained from imposing such a sentence? Can he not answer that?
Lord Mackay of Drumadoon: With the greatest respect to the noble and learned Lord, he cannot have it both ways. He cannot ask me to provide precise information to enable him to pursue the matter at a later date if he is not prepared to allow me a similar opportunity to look at the statistics to deploy the argument that I would wish. I remind him of an argument which I advanced earlier which is that this provision would deal with convictions under a Great Britain-wide statute. One has not just to look at the position in Scotland; one has to look at the position in England as well. I am unaware of any statute where offences apply north and south of the Border but the penalties are different. That is part of the policy that lies behind this clause, as has been made clear when the Crime (Sentences) Bill was debated, and as has been made clear on a number of occasions this afternoon when this Bill has been debated. I believe it would be more profitable to the Committee to answer the factual question which was asked. With respect, that is what I would prefer to do.
Lord McCluskey: I shall look forward to receiving the answer to the questions I have put. Under the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 44 to 49 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 50:
Page 4, line 39, at end insert ("and the foregoing circumstances shall include any known circumstances relevant to the commission of the two other offences").
The noble and learned Lord said: I hope that Amendment No. 50 will allow me to obtain some information from the noble and learned Lord the Lord Advocate, whether now or at a later stage. The amendment refers to page 4, line 39 of the Bill. The Committee will see that there is no mention of circumstances relating to the known circumstances relevant to the commission of the two other offences.
I should like to know from the noble and learned Lord the Lord Advocate, first, whether he will explain what provision in the Bill allows the judge, when considering the question of exceptional circumstances, to look at the known circumstances or any of the earlier offences. Secondly, given the fact that Scottish criminal records as made available to the courts do not disclose whether a trafficking offence was in respect of a Class A, Class B or Class C drug, how will the provision work? Have the Government some way of determining whether or not the previous convictions listed in the SCRO list as simply Section 5(3) or Section 4(3)(b), or whatever it may be, are trafficking in a Class A, Class B or Class C drug? Thirdly, if the circumstances of any of the earlier offences may be relevant to the judge's exercise of his duty under the section, what proper records are there of the circumstances of the earlier offences?
Lord Mackay of Drumadoon: As regards the first question, Clause 205B(3), as introduced into the 1995 Act by Clause 2 of this Bill, would entitle the court to look at the known circumstances both of the offence before the court and the previous conviction. That has been the consistent position of the Government throughout this legislation as I have explained already today. The noble and learned Lord is quite correct. The lists of previous criminal convictions as issued by the Scottish Criminal Records Office do not contain detail about the particular type of drug. That is why there was value in the point raised by the noble Lord, Lord Sewel, earlier today: that the procedure for laying details of the circumstances of the first qualifying offence before the court will have to be addressed. I make no secret of that. But for the reasons I explained earlier, I see no practical reason why, with common sense on all sides, and the assistance of an act of adjournal passed by the court, if the court deems it necessary, the necessary procedure cannot be followed. I hope that that provides reassurance in response to the amendment which I understand is a probing amendment.
Lord McCluskey: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey moved Lord McCluskey moved Amendment No. 51:
Page 4, line 43, at end insert—
("( ) Where the court has imposed a sentence in terms of subsection (2) above, it shall also require the person so sentenced to attend a drug awareness programme.").
The noble and learned Lord said: I beg to move Amendment No. 51 and speak to Amendment No. 52. I was invited by SACRO to advance Amendments Nos. 51 and 52, and I do so. They both relate to the same point.
In essence, SACRO suggests—and I agree with the suggestion—that the best means of reducing the crime rate in relation to drug-related offending is through the treatment of the offender; in other words, through counselling and education for users of drugs, especially those who are engaged in drug trafficking in order to support their habit. There is a good deal of experience to suggest that such people can be cured if they are properly treated. I suggest that this amendment will enable the Committee to inform the Government that we should like to see people who are convicted in this way being required to attend a drug awareness programme. That programme could be within the prisons, because the persons to whom this provision would apply would be going to prison for something of the order of seven years. I am interested to know if the noble and learned Lord is able to confirm whether funds are to he made available for curing such people, as well as funds being made available, at a cost of about £30,000 per head, to warehouse them in our prisons.
The second of the amendments relates to the nature of the drug awareness programme. It refers to,
"a programme of instruction and counselling in relation to the abuse of drugs which is approved by regulations made by the Secretary of State".
The idea is that the Government should set up the parameters of this type of drug awareness programme and counselling. I beg to move.
Lord Mackay of Drumadoon: I am happy to agree with the noble and learned Lord that offenders in custody should be encouraged to address their offending behaviour and to tackle any problems they may have, which can include the problem of drug addiction. Clause 31(3)(b), to which we shall come in the fullness of time, seeks to increase that encouragement and award prisoners who respond to it.
However, like my colleague the Minister of State who spoke to virtually identical amendments in another place, I am not convinced that the programmes referred to in these two amendments should be prescribed in the manner suggested. Nor am I persuaded that it is necessary to approve programmes under a statutory regulatory system.
To elaborate on some of my concerns in relation to these amendments, first, I draw attention to the danger of setting a precedent that the court should attach conditions to custodial sentences. This could lead to demands for a whole range of conditions which might make it difficult for those involved, both in the Prison Service and in local authorities, to respond in a flexible and sensible manner to the changing needs of individual offenders. It may also be difficult for the court to assess at the point of imposing sentence which programmes it would be most appropriate for the offender to undertake.
Some offenders who will be sentenced in terms of Clause 2 undoubtedly will be people with drug problems; but others will not. Those others will simply

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be criminal businessmen, if I might use the term, who have become involved in the drugs trade not because of any wish to feed their own addiction but for purely mercenary purposes. Compulsory attendance at a programme of counselling for such individuals would be a waste of time and resources. Indeed, their compulsory presence at such courses which they did not wish to attend might be counter-productive and interfere with the work being done with other prisoners who are in need of such help. Attendance at a programme of counselling is clearly ineffective if the individual offender is unwilling to participate. While the clause to which I referred earlier will seek to encourage participation in such courses, it cannot compel it, and it would be unrealistic to expect it to do so.
As the noble and learned Lord will be aware, the Scottish Prison Service already challenges prisoners to participate in programmes which seek to address offending behaviour. That is not limited to drugs offenders but certainly includes those who fall into that category. There is a large number of progammes across the prison estate dealing not only with drugs but with alcohol abuse, sex offending and anger management. Funds are available for that. I do not have the precise figure available to me at the Dispatch Box. However, if it is of interest to the noble and learned Lord, I am happy to provide it.
The success of Clause 31, to which I have referred, will in part depend on the existence of such programmes. I believe that all sides of the House are agreed on the desirability of them; there are varying degrees of realism as to how much can be afforded. Clearly there is a commitment on the part of the Prison Service to provide as many of these programmes as is practicable. I hope that on that basis it will prove possible for the noble and learned Lord to withdraw this amendment and the following one.
Lord McCluskey: In relation to the point of principle which the Lord Advocate has mentioned—the difficulty of attaching conditions to sentences—I do not see any reason why one should not make a judgment on the merits of each proposal and decide whether to do it. If by attaching a condition one can reduce the risk of re-offending, it surely must be worthwhile considering.
The person who is caught and convicted for a third time of trafficking in a Class A drug is, in my experience, extremely unlikely to be one of the "Mr. Bigs". He is very likely to be an addict. It is addicts who get caught in this kind of way, because they are feeding their habit. It is very likely that the people dealt with under this clause will be people who need treatment for drugs.
I shall study the Lord Advocate's reply, perhaps tomorrow, and see whether I want to take the matter further on another occasion. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 52 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 53:
Page 5, leave out lines 8 to 18.
The noble and learned Lord said: This amendment was spoken to with Amendment No. 4. I beg to move.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 54:
Page 5, leave out line 30.
The noble and learned Lord said: I can deal with this amendment very shortly. The curious thing is that according to the provision on page 5, lines 29 and 30, a judge might in certain circumstances hear himself saying to the accused, "You will go to prison for five years, 219 days". I should be rather ashamed to pass such a sentence; I should feel that I should render myself ridiculous. I should like to know what the basis of the provision is. I have been trying hard to work out where the five years 219 days comes from but my arithmetic is not up to it. Perhaps the noble and learned Lord the Lord Advocate will be good enough to explain where he gets that figure from and what its justification is. I beg to move.
Lord Mackay of Drumadoon: The figure comes from deducting 20 per cent. from seven years. I have to confess not to having checked the arithmetic myself, but that is what this part of the clause seeks to achieve.
It is accepted that a provision of this kind is unusual in Scots law but it is required in order to enable the court to take account of a guilty plea in a Clause 2 case, as I indicated earlier it could do, and to impose a reduced sentence which it might otherwise be unable to do because of the statutory minimum sentence.
The phraseology of the terms in this clause is slightly different from that in the English clause but the objective is the same: to have a 20 per cent. discount from the seven-year mandatory sentence. I hope with that explanation it will prove unnecessary for the noble and learned Lord to press the amendment.
Lord McCluskey: I do not intend to press it. I tried to do that calculation, allowing for leap years, and did not manage to get the result. No doubt the noble and learned Lord will have the arithmetic checked and, if it does not work, he will go on to explain it.
Perhaps I may add two points in relation to this matter. First, it is a pity that the Notes on Clauses, which I thought were rather poor in relation to this Bill, did not explain a matter of that kind. It would have saved me having to ask the question.
Some newspapers of a certain kind have been carrying information based upon briefings supplied by persons I know not who which indicate that I have put down a large number of wrecking and destructive amendments designed to delay the progress of the Bill. Is the Lord Advocate able to confirm that that is not so or, alternatively, to name which of my amendments that have been discussed during the course of today fall into that category?
Lord Mackay of Drumadoon: I do not think that supplementary observation arises directly out of my

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response. I am happy to concede that as far as this amendment is concerned there can be no question that it could be described as a wrecking amendment. It might be possible to accord that description to others, but I do not think it would be a profitable exercise at this point of the evening to go through each and every amendment we have discussed. No doubt if the noble Lord wishes to discuss it further, we can do so informally and not trouble other noble Lords.
Lord McCluskey: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Lord McCluskey: I gave notice of my intention to oppose the Question but, having regard to the discussion we have been able to have in relation to the amendments, I do not propose to maintain that position.
Clause 2, as amended, agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 55:
After Clause 2, insert the following new clause—
MEANING OF "CONVICTION"
(". After section 205 of the 1995 Act there shall be inserted the following section—
"Meaning of "conviction" for purposes of sections 205A and 205B.
205C.—(1) For the purposes of paragraph (b) of subsection (1) of each of sections 205A and 205B of this Act "conviction" includes—
(a) a finding of guilt in respect of which the offender was admonished under section 181 of the Criminal Procedure (Scotland) Act 1975 (admonition); and
(b) a conviction for which an order is made placing the offender on probation,
and related expressions shall be construed accordingly.
(2) This subsection applies where a person has at any time been convicted of an offence under—
(a) section 70 of the Army Act 1955;
(b) section 70 of the Air Force Act 1955; or
(c) section 42 of the Naval Discipline Act 1957.
(3) Where subsection (2) above applies and the corresponding civil offence (within the meaning of the Act under which the offence was committed) was—
(a) a relevant offence within the meaning of section 205A of this Act; or
(b) a Class A drug trafficking offence within the meaning of section 205B of this Act,
that section shall have effect as if he had been convicted in England and Wales of the corresponding civil offence.".").
Lord Mackay of Drumadoon: I spoke to this amendment with Amendment No. 4. I beg to move.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 56:
After Clause 2, insert the following new clause—
LORD ADVOCATE TO EXPLAIN CERTAIN PROSECUTION DECISIONS
(" . After section 205 of the 1995 Act there shall be inserted the following section—
"Lord Advocate to explain certain prosecution decisions.
205C.—(1) When the Lord Advocate decides to indict a person in the High Court on a charge of committing a qualifying offence within the meaning of Part I of Schedule 5A to this Act or of committing a Class A drug trafficking offence as defined in section 205B(5) of this Act at a time when he is a person to whom section 205B(1)(b) applies, the Lord Advocate shall prepare a full written statement of his reasons for indicting the person in the High Court rather than the Sheriff Court, and—
(a) a certified copy of that statement shall be placed before the trial judge after the person has been convicted and before he has been sentenced or otherwise dealt with; and
(b) the trial judge shall have regard to that written statement before imposing any sentence of imprisonment or detention.
(2) When the Lord Advocate decides to indict a person in the Sheriff Court on a charge of committing a qualifying offence within the meaning of Part I of Schedule 5A to this Act or of committing a Class A drug trafficking offence as defined in section 205B(5) of this Act at a time when he is a person to whom section 205B(1)(b) applies, the Lord Advocate shall prepare a full written statement of his reasons for indicting the person in the Sheriff Court rather than the High Court, and—
(a) a certified copy of that statement shall be placed before the sheriff after the person has been convicted and before he has been sentenced or otherwise dealt with; and
(b) the sheriff shall have regard to that written statement before imposing any sentence of imprisonment or detention.".").
The noble and learned Lord said: I beg to move Amendment No. 56 which has not been discussed. The purpose of the amendment is, I think, plain from its terms. It arises from a concern which I have expressed both today and at Second Reading, namely that the Lord Advocate takes his decisions in secret and he is not answerable either to Parliament or to anyone else in respect of them. I give an example. In a recent case four persons were charged with murder and attempted murder and appeared in the High Court. On the morning of the trial the Crown accepted a plea of guilty to murder in respect of one of them and not guilty in respect of the other three and pleas of not guilty from all in respect of the attempted murder charge. These were people who had been held in custody for in excess of a 110 day period. The Advocate Depute was not able to explain the decision in court and the Lord Advocate, to whom I wrote about the matter, replied chiding me for raising the matter and suggesting that this was not a matter to be raised in public.
I only mention the case to illustrate the point that there can be cases in which the Lord Advocate takes very important decisions of this kind and no one understands them. There was a case many years ago which became quite notorious, the Sweeney case, in which something of that kind happened.
When we come to the provisions of this Bill, particuarly in relation to Clause 1 and the mandatory life sentences, the power of the Lord Advocate will be very considerable indeed because he always has a choice as to whether to indict a case in the High Court or to indict the case in the sheriff court. When he exercises that choice and takes the decision, his decision is taken in secret. It is unreviewable, it is not ever explained and if, indeed, one asks for an explanation of such a

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decision, as I did when the present noble and learned Lord the Lord Chancellor was the Lord Advocate, the Lord Advocate will refuse to give it.
Given the general background of plea bargaining, as happens in jurisdictions where there are provisions of a similar kind, particularly in the United States but not confined to the United States, I think we have to be very careful about the use of the power of the Lord Advocate.
Accordingly, the purpose of the new clause is to require the Lord Advocate to prepare a full written statement of his reasons for indicting the person in the High Court rather than the sheriff court or vice versa and to place that before the court so that there is some public scrutiny and some public answerability in respect of these vitally important decisions which can affect a person's life so dramatically. I beg to move.
Lord Mackay of Drumadoon: As the noble and learned Lord acknowledges, the new clause would require the Lord Advocate to give reasons for the choice of court in which to prosecute any qualifying offence or a drug trafficking offence where an accused had two relevant previous convictions. Where the provisions set out in this clause apply, the court would have to have regard to the statement containing the Lord Advocate's reasons for the choice of court.
Noble Lords may be aware that at present proceedings are taken in the High Court where that is required by law; for example, in cases of murder, rape or treason, or where the court considers that the offence is sufficiently serious, having regard to the gravity of the offence and the accused's previous convictions, to merit a sentence which only the High Court can impose. Exceptionally there will be a small number of cases which are prosecuted in the High Court because of their particular complexity or sensitivity, even though the sentence which might be expected would be one which would fall within the jurisdiction of the sheriff.
Neither Clause 1 nor Clause 2 of the Bill seeks to interfere with the Lord Advocate's discretion to choose the forum in which to indict a case. Nor will this new clause do so, because its only effect would be to require the Lord Advocate to give reasons for exercising his discretion. The noble and learned Lord will be well aware that there is a long-standing convention that the Lord Advocate does not give reasons for such decisions. As he knows, that convention also applies to the Lord Advocate's accountability to Parliament. The Lord Advocate is accountable to Parliament for his actions, but it is only in the most exceptional circumstances that Parliament would seek to have the Lord Advocate explain the reasons for a particular decision. What this new clause would do, however, is to make commonplace what only happens at present in the most exceptional of circumstances.
The noble and learned Lord made reference to some correspondence about a particular case. Obviously, I do not have that correspondence before me, but even if I did, I am doubtful whether it would be helpful for me to refer to the detail of what passed between a senator and the Lord Advocate in private correspondence about a particular case.
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The Lord Advocate's decision as to which forum to choose will be based on the whole of the circumstances of the case as known to the Lord Advocate or his Crown counsel at the stage at which the decision to serve indictment is taken. The information which influences that decision, as the noble and learned Lord knows well, is confidential, a fact borne out by the passage from Hume to which I referred in the Second Reading debate. It would be unprecedented for the Lord Advocate to breach that confidentiality by disclosing the information on which the decision was based.
To the extent that the new clause would not require the Lord Advocate to refer to the facts of the case when giving his reasons, I do not understand what the clause seeks to achieve. If the facts of the case are not to be discussed, then the only reason that the Lord Advocate would give for the choice of court would be that the particular court was considered to be a suitable forum in which to trial a case, having regard to the sentencing power of the court and the circumstances of the case as known to him at the date the case was indicted. The Committee will appreciate that that will be little more than a statement of the obvious. But that is almost certainly all that could be said in relation to a qualifying offence where the accused did not have a previous conviction for a qualifying offence. The explanation for the decision might be more complicated in those cases where there was a conviction in the High Court which would require the imposition of a mandatory sentence under Clause 1 or where there were previous convictions relevant to Clause 2.
If it were the Lord Advocate's policy always to prosecute such cases in the High Court unless it appeared to him that the court was likely to hold that there were exceptional circumstances which would justify departing from the imposition of a mandatory sentence, then the noble and learned Lord's new clause would result in the following. Where proceedings were taken in the High Court, the Lord Advocate would give as his reason the fact that this was a case in which the court would be required to impose a mandatory sentence. On the other hand, if proceedings were taken in the sheriff court, the Lord Advocate would state that the case was being prosecuted in the sheriff court because it was anticipated that the court would be likely to hold that there were exceptional circumstances such as to justify not imposing a mandatory sentence. That is if the policy of the Lord Advocate was always to prosecute, unless it appeared to the Lord Advocate that the court was likely to hold that there were exceptional circumstances. Whether that would be the policy that any Lord Advocate would follow I would not begin to commit myself to at this stage.
Again, I have great difficulty in seeing what all this would achieve. There is, however, another objection. If, as I believe the noble and learned Lord, Lord McCluskey intends, the intention is to force the Lord Advocate to make his position clear before the case is called to court, that is fundamentally objectionable. The decision as to forum is taken in the light of the facts and circumstances as known to the prosecutor at that stage in the proceedings. As Hume, as I recollect it, has said, it is well known that the Lord

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Advocate may have private information available to him. As the noble and learned Lord knows well, what happens at the trial would require to be taken account of by the judge in addressing the issues which we have been discussing on more than one occasion as the afternoon and evening have worn on. Therefore, I doubt whether any practical purpose would be served in departing from this very longstanding convention, which is central to the system of the independent public prosecutor in Scotland.
For all these reasons, I hope that the noble and learned Lord will be persuaded that it would not be appropriate to have a clause in the Bill in the terms set out in Amendment No. 56.
Lord McCluskey: Of course, I accept that the tradition to which the Lord Advocate refers is a longstanding one, and indeed a greatly respected one in Scotland. The terms of the clause which I have suggested make it plain that the revelation of the reasons of the Lord Advocate is made to the judge. There is no public disclosure. The trial judge in the High Court or the sheriff in the sheriff court will receive a copy of the statement, not before but after the person has been convicted. At that stage he can have regard to it. It becomes plain then that a judge or a sheriff who has seen such a statement can go, if he feels disquiet about the decision-making within the office of the Lord Advocate, either to the Lord Justice General or to a Sheriff Principal to try to raise the matter and to see whether something can be done about it.
The point that I seek to make through the amendments which deal with this matter is that when the Lord Advocate decides to send a case to one court rather than to another, his decision is made privately, not publicly. When a judge decides to send a person to prison for five years or 15 years or simply to put him on probation, whatever it may be, his decision is made publicly. He can be called upon to give and does give reasons, and those reasons are subsequently published. There is a very considerable difference between the fact that the Lord Advocate exercises what are quasi judicial functions privately and unreviewably, whereas the judge exercises them publicly.
Lastly, in relation to the exercise of such a discretion by the Lord Advocate, when three or four people appear in court all charged with murder and pleas of not guilty are accepted on the morning of the trial without one word of evidence having been led and they simply walk out of the court, surely the public have some right to know why it is that people who have been detained for four or five months and brought to court on a charge of murder, are then released. Perhaps it is time to review even the longstanding tradition to which the Lord Advocate refers. I believe that he has given me all the answer that he seeks to give me tonight and if that is so, as I detect it is from his worn smile, I simply beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 3 [Imposition of supervised release orders on conviction of qualifying offence]:
Lord Sewel Lord Sewel had given notice of his intention to move Amendment No. 57:
Page 5, line 36, leave out ("on passing sentence") and insert ("shall").
The noble Lord said: I had intended to move Amendment No. 57, and to speak to the consequential amendments, Amendments Nos. 58 and 59.
Lord Mackay of Drumadoon: In view of the lateness of the hour, it may assist the noble Lord if I indicate that I wish to reflect further on what lies behind these amendments. I have some anxiety that the existing provisions are not appropriate and I intend to discuss the matter further. I will do so informally if that will save speaking in detail to these three amendments.
Lord Sewel: I am pleased to accept what the noble and learned Lord the Lord Advocate says. At this stage I shall not move the amendment.
[Amendment No. 57 not moved.]
[Amendments Nos. 58 to 60 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 61:
Page 5, line 47, at end insert—
(" An example of an "exceptional circumstance" would be where the social work department was unable to provide adequate resources to enable a supervised release order to he adequately fulfilled.").
The noble Earl said: Amendment No. 61 extends subsection (1A). The Committee will be familiar with the fact that statutory services for offenders are provided by Scottish local authorities, social work departments and also some voluntary organisations such as the Apex Trust and SACRO.
It is an unusual fact that most of the offender social work is funded 100 per cent. by central government, and hence by the Scottish Office. Though not declared, there exists a glass ceiling through which offender services funding may not rise. My point is that when a local authority social work department is unable to provide a full or adequate service to offenders and the courts, it is not because the local authority's budget does not run to it; it is because the Scottish Office has not funded the service.
Provision of offender services and the supervision of supervised release orders in particular are at the whim of central government, and the amendment is necessary to begin to secure those services. I beg to move.
Lord Mackay of Drumadoon: The protection of the public is not something which should be dictated by resources; it is a function of local authorities throughout Scotland to provide post-release supervision for offenders and to submit their strategic plans for offender service provision to central government as part of the operation of the 100 per cent. funding mechanism.

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I can assure the noble Earl, who, as we all know, has extensive experience of social work, that since the introduction by the Government of 100 per cent. funding for this service, there have been no difficulties of the nature he describes and sees. In fact, the funding level for 1996–97 has been acknowledged as being sufficient to enable services to develop and in some cases expand.
The essential point is that where a court considers that supervision is needed to protect the public, it should make the appropriate order. It is for the local authority to make arrangements for the delivery of that supervision and to plan in connection with central government, who pick up the bill, that the appropriate services can be delivered. I hope, with that clear statement of the Government's position, that the noble Earl will not insist on his amendment.
The Earl of Mar and Kellie: I can assure the Committee that I am not looking for such difficulties. I am the last person who would wish to see supervised release orders not carried out. I partially accept what the noble and learned Lord says, and therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Dean of Harptree): If Amendment No. 62 is agreed to, I cannot call Amendments Nos. 63 and 64.
[Amendment No. 62 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 63:
Page 6, line 22, leave out ("two") and insert ("five").
The noble and learned Lord said: In moving Amendment No. 63, I should like to speak also to Amendment No. 64. I should first make it abundantly plain (in case it is not plain to the noble and learned Lord) that I am entirely in favour of the introduction of supervised release orders of the kind envisaged by the clause. Indeed, I made my support for that proposal plain in my response to the White Paper last summer.
I am anxious to increase the power to impose a supervised release order—or rather, at least to increase the duration of such an order. I have experience of a case—a particularly notorious case; it is all in the public domain and so I can mention it—of John Cronin whom I sent to prison for life. The appeal court took a different view. The real problem with that offender, as I perceived it, was that the psychiatrist could not predict that he would ever be able to be released with safety. Had it been possible for the appeal court (when it imposed a sentence of six years in place of the life sentence that I imposed) to impose a supervised release order for a substantial period, that might have given some further protection to the public.
I support the general proposals and simply invite the Government to respond to my invitation to explain why the supervised release order cannot be longer than is envisaged by the clause as it now stands. I beg to move.
Lord Mackay of Drumadoon: I readily acknowledge the noble and learned Lord's support in
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connection with this type of order and I can assure him that we have given careful consideration to the issue of the supervision periods as set out in the Bill. Supervision is recognised as being at its most effective in the early stages of an order. Thereafter, it builds constructively on that early impact. The clear indications are that the supervision will be most effective if the resources are targeted at ensuring that a significant effort is made with prisoners at an early stage of their release. To focus resources effectively, we must of necessity ensure that the total period of supervision is also focused on individual need and is not simply imposed as extensively as the amendments suggest. To that extent, therefore, and with a measure of regret, the Government are not persuaded to accept the amendments.
Lord McCluskey: I am satisfied with that answer. Given that the amendment would involve the expenditure of extra resources and that there may therefore be a technical objection to it, I beg leave to withdraw Amendment No. 63 and shall not seek to move Amendment No. 64.
Amendment, by leave, withdrawn.
[Amendment No. 64 not moved.]
Clause 3 agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 65:
After Clause 3, insert the following new clause—
CONDITIONAL LICENCE FOR PERSON CONVICTED ABROAD
(" .—(1) A person who is a United Kingdom citizen or who otherwise has an absolute right of abode in the United Kingdom and who is resident in the United Kingdom and who has been released from prison on conditional licence from a sentence of life imprisonment imposed by a court outwith the United Kingdom for an offence for which a court in the United Kingdom could have imposed a life sentence. may be served with a notice by the Secretary of State making him subject to the same conditions which he could have been subjected to if he had been released on licence from a life sentence imposed by a court in the United Kingdom.
(2) A person served with such an order shall be subject to the jurisdiction of the relevant Parole Board within the United Kingdom as if the original sentence of imprisonment had been imposed by a court in the United Kingdom.").
The noble Earl said: This amendment stems from information passed to me about the McCafferty case. I believe that the person concerned intends to return to the UK from Australia. When he gets here, our authorities have no power to supervise him nor to recall him should his conduct imply that he is not behaving himself or should be recalled.
The amendment would give the Secretary of State the power to do that. In many respects, this amendment would cover a position similar to that of a person who has been repatriated during his sentence. That is the way in which I am hoping to sell the idea. If he had been repatriated during sentence rather than at the conclusion of his life sentence, he would have been released on life licence and would have been supervised and subject to recall.
I have one or two wee points to make about the amendment. It deals only with cases in which deportation from the UK is not available. That is

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because the person is a UK citizen. The power could not be used to deter people from entering the UK if they have a right of abode here. I suspect that a deterrent power could be in breach of international law. The power in the amendment is limited to lifers but could be extended to all persons released on licence or parole. It would perhaps be advisable to restrict the amendment to lifers and consider other cases at a later time if the principle was established in this case. I also suggest that the power should be restricted to cases where English and Scots law is broadly similar to the law of the overseas country. I hope that Australia has laws that are fairly similar to ours.
The power is permissive. The Secretary of State is not obliged to do it but merely has the opportunity to do it. The amendment is intended primarily to protect the public, but it is also fair in that it treats the individual in the same way as other lifers and makes available social work services and supervision. I am advised that this provision is necessary to confer powers on the relevant parole board. I beg to move.
11.30 p.m.
Lord Mackay of Drumadoon: I understand what lies behind the amendment moved by the noble Earl. The case of Archibald McCafferty, a life prisoner in Australia—whose name may be familiar to some noble Lords—highlights that there is no statutory means by which he can be made subject to the same licence conditions as would be applicable to a life prisoner who was released in the United Kingdom. The proposal is that he should be released in Australia, and, being a citizen of the United Kingdom, he has the right to enter this country notwithstanding his Australian conviction.
Noble Lords can be assured that the Government recognise the need to protect the public from offenders such as McCafferty who have been convicted of serious offences. The number of such offenders may be small but the risk that an individual may pose is potentially very significant. For that reason the Government are currently giving consideration to the introduction of legislation to provide for the supervision of serious offenders such as McCafferty. The intention would be to devise legislation that applied throughout the United Kingdom.
The issues involved are complex. There are fundamental legal as well as significant practical issues to be addressed. Among them is the need to consider how we can, in accordance with our obligations under the European Convention on Human Rights, place someone on licence and make him subject to recall to prison when that individual has not been convicted of any offence in this country. Moreover, there is an issue as to whether it is appropriate to impose licence conditions on someone if no such conditions exist in the sentencing jurisdiction.
There is the further knotty and very difficult problem of the retrospective application of a change of law to those who have served, or are currently serving, very
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long prison sentences in different parts of the world. The proposal is that they would have to be subjected to conditions in this country which did not flow from anything that they had done in this country but something that they had done previously which had not been aggravated in any sense by any further criminal offending.
On the practical side, arrangements would need to be put in place so that the United Kingdom authorities could identify the offenders when they returned to this country and could be formally placed under licence upon their arrival. As noble Lords are well aware, those who hold UK or European Union passports, and many others with a right of abode in this country, are not subject to immigration control and can enter the United Kingdom freely. Although it would be more usual for foreign nationals to be deported to their countries of origin, it might still be possible for them to return to this country. We will need to look very closely at such a possibility and how it is to be handled by our immigration authorities. Further, we will have to make arrangements to ensure that the prisoners concerned are aware of their obligations before they return to this country or, at the very latest, at the point of arrival.
I am sure that noble Lords fully appreciate the practical and legal difficulties that require to be addressed. However, I assure the Committee that the Government are giving close consideration to these issues. They are not easy to deal with and a solution may not be imminent, but the importance of addressing the issues involved is not minimised. I am grateful to the noble Earl for having raised the issue. With my explanation, I hope that he will find it possible to withdraw the amendment.
The Earl of Mar and Kellie: There is a point I should like to make before seeking leave to withdraw the amendment. We have already established that supervised release orders are separate from the sentence. They are not part of the sentence. So such a person could be dealt with in that way. Mr. McCafferty would not be dealt with by licence; he could be put on a supervised release order on arrival. I shall leave that point.
I am grateful to the noble and learned Lord for his answer. I am interested that appropriate legislation is being considered to deal with this serious situation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House resumed.

Girobank plc (Transfer) Bill [H.L.]
The Examiner's certificate that the further standing orders had been complied with ordered to lie on the Table; Bill committed to an Unopposed Bill Committee.
House adjourned at twenty-four minutes before midnight.