Crime and Punishment (Scotland) Bill

HL Deb 04 March 1997 vol 578 cc1706-72

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 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—

1. (a) relate to any of the offences or to the offender; and
2. (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 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 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 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 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 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.

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, 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

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. 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.

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 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 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 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 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.

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 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 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 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". 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 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.

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 Drumadoon

sss: 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 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 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.

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.

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

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 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 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 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.

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 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.

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 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 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 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 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 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 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 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 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 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.

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 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.

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, 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 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 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 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 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 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 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 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 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 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 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.

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". 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 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 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.

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 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 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 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 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 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 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

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 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 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.

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 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.