Lords Sitting of 6 March 1997

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

Children: Government Structures
Lord Northbourne Lord Northbourne asked Her Majesty's Government:
How many government departments take decisions which particularly affect the lives of children.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, all government departments are involved in decision-making when it affects children's lives but chiefly the Department of Health, the Department for Education and Employment, the Department of Social Security, HM Treasury, the Home Office, the Lord Chancellor's Department and the Department for National Heritage and the territorial departments.
Lord Northbourne: My Lords, I am grateful to the Minister for that helpful Answer. Is she aware of the recent report published by the Gulbenkian Foundation entitled Effective Government Structures for Children, a copy of which I intend to deposit in the Library of the House immediately after Question Time? That identifies the fact that there is widespread concern in the country that government structures are failing children. Does she agree that children form an important group of the population who are without power, without voice and without vote? Will the Government, if re-elected, undertake to appoint an ombudsman for children along the model which is already working well in Norway and Sweden, and as recommended in the Gulbenkian report?
Baroness Cumberlege: My Lords, first, I contest the statement that the Government are failing our children. I do not believe that to be the case. Our children are healthier, heavier, better educated and are achieving greater educational attainments. I do not believe that we are failing them in any way. Of course, they are an important part of the country's future. The Government have considered the issue of whether to appoint an ombudsman. At this moment, the Government have not agreed to that. We feel that it is important to have co-ordination among government departments, but we do not think that one person will make all the difference or, indeed, that structures are all-important.
Lord Archer of Sandwell: My Lords, do the Government share the concern of the HSE and the National Children's Home Action for Children, about the rising trend in accidents in schools, which are now running at over 11,000 per year? Will she confirm that last year local authorities told the Government that they needed £1.9 billion for essential repairs and
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maintenance of schools, and were in fact accorded less than one-quarter of that? If that is so, will the Minister say that there might be a connection between those two sets of figures?
Baroness Cumberlege: My Lords, it is interesting, because if we look overall at children's accidents, they are on the decline. With regard to schools, that is a matter for the education authorities, the governors, and the teachers involved.
Baroness Gardner of Parkes: My Lords, I agree with my noble friend about great improvements because of immunisation, and so forth; but does she agree with me that there is nothing so important to children as good parents and a caring home?
Baroness Cumberlege: My Lords, yes, of course my noble friend is right. It is parental responsibility, and the love, care and discipline that parents exercise which are all-important to the child's well-being.
Lord Avebury: My Lords, will the Minister say who co-ordinates the UK's response to criticisms made of our performance under the UK Convention on the Rights of the Child, and what outstanding criticisms still have to be dealt with by the Government?
Baroness Cumberlege: My Lords, children's services on the whole are co-ordinated by the Department of Health. My honourable friend Mr. Simon Burns is the Minister responsible for children's services. The Children Act is a marvellous example of interdepartmental working. As noble Lords may know, we have just set up the Children's Services Strategy Group, which co-ordinates services between the statutory sector and the voluntary sector.
Baroness David: My Lords, is not the Minister's answer perhaps a trifle complacent, in that there are 14 departments which have some responsibility for children? It is difficult to believe that that works extremely well. Has she read the Gulbenkian report? That proposes a new structure: there should not be a Minister for children with his own department, who might not be entirely successful in pulling enough weight and having enough punch, but instead there should be a Cabinet committee responsible, with a Minister therein. The Gulbenkian report is a well-researched document. It thinks that that would be the best way forward. Will she please take note of that?
Baroness Cumberlege: My Lords, yes, I am aware of the Gulbenkian report. I have it in my hand. It proposes a whole lot of bureaucratic structures. There have been many suggestions: we should have a Minister for children; a children's commissioner; a children's ombudsman; a Cabinet committee, or an office for children in the Cabinet Office. We do not believe that those bureaucratic processes are the answer. We believe

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that it is up to parents, teachers and those who are responsible for children to ensure that their welfare is well looked after and promoted.
Baroness Hayman: My Lords, the Minister is dismissive of structures; but among the panoply of Ministers mentioned in her first reply, who, within the Government, is responsible for assessing the impact of the fact that poverty among children has trebled since 1979, and that 4.3 million children now live in poverty? Who assesses the effects on their health, education and welfare? Is it not important that we listen to the concerns of voluntary organisations and others because we do not have a focus for children in this area? If she will not listen to the voluntary organisations, will she at least listen to the words of the health Select Committee in another place, chaired by her honourable friend Mrs. Marion Roe? They said:
"Fragmentation within services appears common, detracts from cost effectiveness, and urgent attention must be given to the present fragmentation of provision within the NHS in combination"—
Noble Lords: Reading!
Lord Graham of Edmonton: Grow up!
Baroness Hayman: My Lords, I am reading so that I quote the Select Committee accurately. The House would not want me to make up what it said. Yesterday noble Lords opposite were dismissive about spending time talking about young people and their alienation from the political process; today they do not want to talk about children. Those are important subjects. Will the Government address the remarks of the Select Committee on Health in another place?
Baroness Cumberlege: My Lords, as yet the Health Committee has not submitted its final report. Once it does so, the Government will consider it in detail. I do not agree with the noble Baroness's definition of poverty. She will remember that only about 10 days ago we had a full debate in your Lordships' House which was promoted by the Cross-Benches. About 24 speakers took part, and in the whole debate there was no definition of poverty upon which people would agree.
The other point I wish to address is the noble Baroness's comment that we do not listen to voluntary organisations. The Children's Services Strategy Group, which we set up in the autumn and which has its third meeting this month, is for that very purpose. It has been widely welcomed by the voluntary organisations concerned.
Baroness Young: My Lords, does my noble friend agree that one of the causes of child poverty is the high divorce rate and the incidence of many single mothers who have to bring up children in very difficult circumstances?
Baroness Cumberlege: My Lords, yes; perhaps we should be addressing the issues concerning adults as well as children.

Sterling: Effects of Appreciation
3.15 p.m.
Lord Paul Lord Paul asked Her Majesty's Government:
What is the effect of the high rate of exchange of the pound on United Kingdom manufacturing industry and the balance of payments.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, despite the recent appreciation of sterling, the trend in export volumes is still upwards, the deficit on trade in goods has continued to narrow, and manufacturing output has been rising.
Lord Paul: My Lords, I thank the Minister for that Answer, which was expected. Does he really know what is happening in manufacturing industry? Firms are not making the margins—they are exporting goods at no margin—and are considering how to make workers redundant. That will lose jobs for which skills are not available and it is causing a huge problem in industry. As regards the balance of payments, the effect will only come in six months, not now.
Lord Mackay of Ardbrecknish: My Lords, I appreciate what the noble Lord, Lord Paul, says about the concern of exporters about the value of the pound. However, recent survey evidence shows that export orders are still expanding. Indeed, export volumes in the fourth quarter of 1996 were 8 per cent. higher than a year earlier. Therefore, given the figures we are seeing and the reports we are receiving from surveys, I do not believe that the export position is as the noble Lord suggests.
Lord Dixon-Smith: My Lords, is my noble friend aware that some of us at another time and under another government will remember when the dollar stood at 1.12 or 1.14 to the pound? Does my noble friend agree that the markets value the currency for its intrinsic worth at a particular time?
Lord Mackay of Ardbrecknish: My Lords, my noble friend is right to draw attention to the fact that floating currencies, as is ours, vary in their value. Indeed, last night, the noble Lord, Lord Kingsdown, made an interesting speech on just that point. He had to deal with the declining value of sterling at that time.
As a non-economist, I find economists an interesting breed. They seem to be against an appreciation and against a decline, and I am not entirely sure where that leaves us. The fact is that governments cannot dictate exchange rate levels. When they attempt to do so they usually come unstuck.
Lord Acton: My Lords, is the Minister aware that at the time referred to by the noble Lord, Lord Dixon-Smith, when the pound was worth 1.12 dollars, the Government were headed by the noble Baroness, Lady Thatcher?
Lord Mackay of Ardbrecknish: My Lords, yes, that is exactly the point that I made when I referred to the

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noble Lord, Lord Kingsdown, who was then Governor of the Bank of England. If, in today's world, noble Lords opposite believe that that was bad they must surely welcome the appreciation of sterling that we are now seeing.
Lord Wallace of Saltaire: My Lords, can the Minister say why Britain, with, we are told, the strongest economy in Europe, is still running a manufacturing deficit while the weak economies of France and Germany seem oddly to be running manufacturing surpluses?
Lord Mackay of Ardbrecknish: My Lords, one must look at the whole picture and not just manufacturing. As I explained in my Answer, manufacturing is showing good exports both in the surveys and the figures that we are seeing. Indeed, we are moving up the all-important league table of quality exporting. The issue is not only price but also quality and after-sales services. I believe that many of our industries, especially industries coming into this country, are greatly improving. If the noble Lord had been present during the debate last night he would have heard me explain how many parts of British industry are doing extraordinarily well. I believe that motor car exports from this country are 25 per cent. higher than in 1978.
Lord Eatwell: My Lords, is the Minister aware that all historical experience demonstrates that the effect of a significant depreciation in the currency takes eight to nine months to be seen, and the experience of British industry, described by my noble friend Lord Paul, suffering reduced orders and cutting jobs, is shown right across the manufacturing sector? Is the Minister also aware that the CBI and Oxford Economic Forecasting have significantly reduced their forecasts of the rate of growth of the British economy as a result of the high value of the pound? Does the Treasury agree with those forecasts? And what will be their impact on the fiscal position?
Lord Mackay of Ardbrecknish: My Lords, as I said in my Answer to the noble Lord, Lord Paul, we understand the problem that exporters were having. But recent survey evidence shows that export orders are still expanding, and that is the case. It is the position that if sterling remains at about the present level, then exporters will have to watch their competitive position in world markets.
I wonder, as I did last night, what the noble Lord wants me to do. Does he want me to interfere in the market? Does he want me to abandon floating exchanges? I do not know what one is expected to do in a climate in which we at least believe that matters should be left to the floating exchange rate. We must ensure that the fundamentals in our economy are right; that is, low inflation and bringing down government borrowing. As I explained to the noble Lord, Lord Eatwell, last night, that is exactly what we are doing.
Lord Pearson of Rannoch: My Lords, is my noble friend aware that one of the main reasons for the strong
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pound is that sensible Germans and other Europeans share the Government's fear of a euro and are therefore buying pounds in large numbers because they hope we will not be so foolish as to join EMU?
Lord Mackay of Ardbrecknish: My Lords, I congratulate my noble friend on managing, as always, to bring in Europe. He has a point that it is largely against the continental currencies that the major appreciation is taking place—19 or 20 per cent. appreciation against the deutschmark since August 1995 but only 4.5 per cent. appreciation in the same period against the dollar. Part of the reason is that the dollar is moving up and sterling is being pulled up with it. Speeches like the one made by Mr. Alan Greenspan recently will continue to encourage that move. As my noble friend said, I believe that it indicates a certain lack of confidence in the continental European economies on the part of investors.
Lord Bruce of Donington: My Lords, the noble Lord asked a question of this side of the House. In view of the fact that as yet no answer has been given, may I reply to him, given that my predictions in such matters have usually been correct, and say that the Government should reduce interest rates by 2 per cent?
Lord Mackay of Ardbrecknish: My Lords, I have no doubt that the world outside will note the policy of the party opposite, but I must say to the noble Lord that that would inevitably lead to problems with inflation which I believe would cause much more damage than the problem of appreciating sterling.

The City of London and the European Union
3.22 p.m.
Lord Hooson Lord Hooson asked Her Majesty's Government:
What effect the withdrawal of the United Kingdom from the European Union would have on the City of London as an international financial centre.
Lord Mackay of Ardbrecknish: My Lords, as the Government have no intention of withdrawing the United Kingdom from the European Union, no analysis of the effect of withdrawal has been made.
Lord Hooson: My Lords, if that is so, does the noble Lord agree with the sentiments expressed yesterday by the noble Lord, Lord Prior, who opened the debate, when he said:
"I cannot believe that any serious industrialist would advocate withdrawal"?—[Official Report, 5/3/97; col. 1845.]
Would he not agree that if one substituted the word "banker" one could safely express the same sentiment?
Lord Mackay of Ardbrecknish: My Lords, as I am neither an industrialist nor a banker I should like to go further and suggest that "person" might be the right word.
Lord Clark of Kempston: My Lords, does my noble friend recollect that very recently the Lord Mayor of

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London made an unequivocal statement in a speech that whether we join EMU will not affect the business of the City of London because most of the business in the City of London is not only with Europe but it is worldwide? Consequently, following that, will my noble friend confirm that, on a worldwide basis, 36 per cent. of business as regards the exchange rate is done by the City of London and only 4 per cent. of that is within Europe? Will my noble friend agree that the City of London will remain a major financial centre and that it does not do any good to start scaremongering about that?
Lord Mackay of Ardbrecknish: My Lords, there are two very distinct issues here: the first is our membership of the European Union, and I hope that I have made it abundantly clear that the Government's policy is that we should continue that membership; and the other is the question of whether we should join a single currency. Those are two separate issues.
As regards the City and a single currency, I understand that opinions in the City are divided but, as my noble friend said, it is absolutely true that the City of London does a great deal more business than just with the European Union. It is the world's largest international insurance market and is the second largest fund management centre after Tokyo. Indeed, there are more foreign banks here in London than in any other city in the world. Those three propositions show the worldwide interests of the City.
Lord Jenkins of Putney: My Lords, in view of what has been said on the other side of the House, is the Minister aware that a recently published occasional letter from the Institute of Economic Affairs said that there is no foundation whatever for the generally held opinion that withdrawal from the EU would be economically disastrous?
Lord Mackay of Ardbrecknish: My Lords, I think I heard the question correctly and I think I heard the negative in it. We should remember one or two very simple facts as regards our position vis-á-vis the European Union. Nearly 60 per cent.—58.2 per cent.—of our trade in goods is with the European Union. On the last Question, we underlined the importance of the manufacturing industry. The importance of the European Union for our manufacturing industry is clear to see. As I said previously and I say again, this Government have not even contemplated the proposition that we should withdraw from the European Union.
Lord Pearson of Rannoch: My Lords, nevertheless, is my noble friend aware that only 9 per cent. of our economic activity takes place with Europe and given that we trade in deficit with Europe, can my noble friend give the House any good reason, rather than a flat statement, as to why we should not leave the Treaty of Rome and negotiate access to its single market, similar to the access enjoyed by Switzerland and Norway and, I may say, almost every other country on earth (several
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of whom are actually increasing their exports to Europe far faster than we are), to the immense advantage of the City of London and of the country at large?
Lord Mackay of Ardbrecknish: My Lords, it seems to be a fairly ludicrous proposition that we should leave the single market and then try to renegotiate entry into it.
Lord Eatwell: My Lords, will the noble Lord confirm the story in the Financial Times on 22nd February that the Government have abandoned legislation on the contractual status of the euro in UK financial markets? Is he aware also that Mr. Tim Sweeney, Director General of the British Bankers Association, said that that abandonment was doing considerable damage to the development of euro contracts in the City? Finally, will he confirm that the Chancellor has told the European Commission that he will fight to pass that legislation after the election? Why has that abandonment taken place?
Lord Mackay of Ardbrecknish: My Lords, the situation is, as your Lordships will be well aware, that the parliamentary timetable at the moment is fairly crowded and we believe that we shall have plenty of time after the election to bring forward a variety of legislation, including that discussed by the noble Lord.
Lord Haskel: My Lords, does the Minister not agree that opinion on EMU is fairly divided in the City and that that justifies Labour's view that it is best to wait for more information to be available and that it is better to wait and see?
Lord Mackay of Ardbrecknish: My Lords, I suppose that it justifies Labour's view but it justifies much more the Government's view, which, of course, the party opposite has merely followed over the past many months in relation to Europe, as I have said on a number of occasions.

The Employment Service
3.29 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they have any proposals to reorganise the Employment Service.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, the Employment Service is an executive agency of my department. The role of government is to set the aims, objectives and targets for their executive agencies, and allocate resources to them. It is then for the chief executive of the agency to decide how best to organise its work.
Lord Dormand of Easington: My Lords, will the Minister confirm that more than half of the jobs at the Employment Service headquarters are to be cut; that jobs will be lost in all the regional offices right across

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the country, in England, Scotland and Wales, involving something like 1,800 jobs? Perhaps more important, will the Minister not agree that the advice which the service gives to more than 1,000 Jobcentres is very important indeed, or do the Government consider that 1.8 million unemployed do not count for very much these days? If my suggestions are right, surely the Government are empowered to do something in relation to such a drastic proposal.
Lord Henley: My Lords, it is a matter for the employment agency. The board of the Employment Service is convinced that it must reduce its head office and regional offices to reflect unemployment, which has fallen by over 1 million in the past three years. It is also conscious of the need, in common with most organisations in both the public and private sector, to slim down overheads to improve efficiency. I should tell the noble Lord that jobs lost do not actually equate with redundancies. The Employment Service has a very strong record in managing change without compulsory redundancies and will do everything reasonable to avoid them.
Baroness Turner of Camden: My Lords, is the Minister aware that, as I understand it, his own Government are committed to a policy of encouraging people to job seek? If that is so, is it not a matter of government concern if the staff are not available to provide a counselling service in such instances? Alternatively, is the jobseeker's allowance, as many of us suspected, simply a means of cutting expenditure at the expense of vulnerable people?
Lord Henley: As the noble Baroness knows, the jobseeker's allowance is designed to encourage people to seek work as appropriate. I can also say that the Employment Service is committed to performing its functions as appropriate. It is appropriate for the Government to set targets for the service and they do so by means of the annual performance agreement. It is then up to the Employment Service to decide how best to meet them. I have every confidence that it will be able to continue to do so, even with a reduced headquarters. Indeed, I think that the Employment Service should be praised for taking the trouble to reduce the size of its headquarters and its overall costs.
Lord McCarthy: My Lords, will the Minister admit that the Government's policy is putting the Employment Service in a double bind? On the one hand, the Government consistently reduce the staff of the service and, on the other hand, as my noble friend said, the Government continually put new pressures upon them. For example, the service has an increasing number of interviews and reorientation programmes to deal with. It also chases the unemployed day after day and week after week and is supposed to do so with fewer and fewer staff.
Lord Henley: My Lords, we do not reduce the staff in the Employment Service; staffing is a matter for the service itself. What we seek—and quite rightly—
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because we believe in the efficient running of government, are efficiency savings from the service. The Employment Service will still be able to meet the very testing annual performance agreement that we place before it and those targets get tougher each year.
Lord Monkswell: My Lords, although it may be entirely laudable to try to slim down head office staff levels—and no doubt many industrialists would be sympathetic to that point of view—are the Government not aware that frontline services are also being cut? Are the Government further aware that the executive job club in Southwark, which is the nearest one to the City, with 60 clients on its books, will have to close at the end of March?
Lord Henley: My Lords, I will not comment about individual Jobcentres and individual job clubs. The simple fact is that the Employment Service is meeting the very testing targets which we put before it. I would ask the noble Lord to go out and have a look at the Employment Service and see what it is doing on the ground. As I said before, it is a matter for the Employment Service as to whether it can meet those targets with fewer people. Quite rightly, the service should pursue those aims and the efficiency savings that we seek.
Lord Avebury: My Lords, does the Minister consider that there is any scope for making savings in the Employment Service by reducing the number of typists and secretaries either at the head office or at regional level? Further, what plans does the Employment Service have for introducing IT to the extent that every executive would have a PC on his or her own desk?
Lord Henley: Quite frankly, my Lords, that is a matter for the Employment Service to consider. As I made quite clear in my original Answer, we provide resources for the service, though we seek efficiency savings. We set targets for the service and it is then up to the chief executive to decide how best to meet them. It is possible that a greater use of IT might be an appropriate way forward. However, quite rightly, that should not be a matter for government; it should be a matter for the chief executive.
Lord Dormand of Easington: My Lords, I understand what the Minister has said, although obviously I do not agree with him. Is he really saying that there are no circumstances in which the Government would intervene when, for example, a number of jobs are being lost, as in this case, or, indeed, over anything else which affects the service?
Lord Henley: My Lords, the noble Lord and I have a rather different approach to the matter. I suspect the noble Lord takes a rather statist approach. We do not believe that it is right to interfere in such matters, other than to ensure that the Employment Service is providing an appropriate level of service to the people of this country. That is why we set very testing targets in the

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annual performance agreement and that is why, in the main, the Employment Service meets them. We shall continue to ask the service so to do.

Business
Lord Strathclyde: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord Lucas will, with the leave of the House, repeat a Statement that is to be made in another place on the Meat Hygiene Service—Hygiene Advice Team Report.

Meat: Slaughterhouse Hygiene
3.35 p.m.
Lord Lucas: My Lords, in the hope that it is now convenient I shall, with the leave of the House, repeat the Statement being made in another place by my right honourable friend the Minister of Agriculture, Fisheries and Food on the Meat Hygiene Service—Hygiene Advice Team Report. The Statement is as follows:
"It may be helpful if I make a Statement about the report by the Meat Hygiene Service on the state of hygiene in slaughterhouses, which has been the subject of much comment in the press this morning.
"The facts are as follows. The Meat Hygiene Service came into existence on 1st April 1995 as a MAFF agency and took over responsibility for enforcement of hygiene rules in slaughterhouses which had previously rested with local authorities. One of the targets for the agency, approved by Ministers and announced to Parliament, was to carry out a review of the state of hygiene in each individual slaughterhouse in Great Britain. It was required to complete this assessment by the end of March 1996. The purposes were threefold: first, to create a comprehensive benchmarking of standards and practices within the British fresh meat industry; secondly, to allocate resources to a function previously performed by local authorities; and, thirdly, to drive up standards across the board and in individual plants.
"The Meat Hygiene Service carried this out by appointing hygiene advice teams to visit each slaughterhouse in the country to assess its score and make recommendations on improvements needed: a mark was given to each slaughterhouse so as to serve as a benchmark against future progress. The end product was a comprehensive assessment of the state of hygiene that had been found, and a long list of recommendations for future action. The report in its final form was always intended as an internal working document, to be used by the enforcement authorities. So it was not formally published. But it was put to the Meat Industry Forum—the leading representatives of meat industry organisations with whom the Meat Hygiene Service holds regular discussions and was the subject of frequent discussions with the industry and others. The fact of the review was also explicitly referred to on page 18 of the annual report on the
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Meat Hygiene Service's first year of operations, which was presented to Parliament on 17th July 1996, and placed in the Library of this House.
"I will deal with some specific criticisms which have been made. Was the report toned down? The facts are these. Hygiene assessment teams of MHS staff prepared reports on individual plants. An editorial board, chaired by the MHS head of operations and made up of professional staff who had all taken part in advisory teams, asked Mr. Swann to draw together a report on red meat. The draft did not fully reflect the views of others. Mr. Swann was asked to recast his contribution but was not willing to do so. The editorial board then asked another senior member of staff to redraft the section on red meat. That was done. The revised and condensed version covering both red meat and poultry is what was put to the industry representatives in June last year. The final report reflected the majority judgment of the professional veterinary staff who carried out the review.
"It is said that important recommendations were not acted upon. This is untrue. Individual reports were made on specific plants and were discussed with individual operators. The Meat Hygiene Service staff are present in every slaughterhouse. In their continuing discussions they are in a position to ensure that necessary improvements are carried out. All this is carried out under the overarching supervision of the State Veterinary Service.
"One specific point of concern, in relation to E. coli, is that cattle should not be delivered to slaughterhouses in a dirty condition. It is quite clear that concerted action is needed by the enforcement authorities, by slaughterhouse management and by farmers to ensure that cattle are presented for slaughter in the cleanest possible condition. The Meat Hygiene Service acted on this; for example, ante-mortem checks are carried out on all cattle and are in the process of being tightened up. Further action is in hand. The MHS is at present preparing clear visual operational guidance on the standards expected and how to achieve them. That will be issued this month.
"Our purpose in creating the Meat Hygiene Service, a policy bitterly opposed by Opposition parties, was to drive up standards within abattoirs and the slaughtering industry. The preparation of this report and the follow-up is part of that process. Standards are constantly improving and are substantially better now than they were when this service was provided, to varying standards, by over 300 local authorities. This is a tribute to the Meat Hygiene Service and to this Government for insisting on its creation".
My Lords, that concludes the Statement.
3.40 p.m.
Lord Gallacher: My Lords, I thank the noble Lord for repeating to the House the Statement made in another place. Today's national press reports details of an investigation by a six-member team contracted to the

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Meat Hygiene Service, lasting for 12 months and ending in March 1996, to audit the state of hygiene in Britain's meat industry. There were visits to 450 abattoirs in England, Wales and Scotland, either directly or through teams, and serious faults were found. According to the press, a report records distressing details relating to the entire slaughtering process with serious breaches of control and basic hygiene.
My first question to the noble Lord is: are these reports in the press factual? They are certainly too numerous to recite to your Lordships' House this afternoon. Does the report contain references to BSE and specified bovine offals and did members of the team find bins containing specified bovine offals not marked as such and thus creating a major health hazard? In some cases were spinal cords not being properly removed? Who decided that this report was not to be given undue publicity? Can such restrictions by the Meat Hygiene Service be imposed without approval by reference to Ministers at the Ministry of Agriculture, Fisheries and Food and its civil servants?
It is suggested that those interested in, or affected by, the report—which means, of course, all of us—could have found out about the report by picking up a reference to it in the annual report of the first year of the Meat Hygiene Service. Is this a serious defence of the decision—so obvious—to play it low key? Was the report completed in December 1995 and could it have been published as a separate document by March 1996? Was this period not the time when Ministers were at maximum alert over BSE and also the time when a possible link between the new variant of Creutzfeldt-Jakob disease and BSE had been announced? Who could have acquiesced in restrictions about this matter at that particular time?
May I ask whether Professor Pennington, who is conducting a Scottish Office inquiry into the serious outbreak of E.coli in Scotland, was made aware of the existence of the report? As his final report has yet to be produced, if he has not been made aware of its existence will he be made aware of it in order that he may comprehensively review this important aspect of the serious matter upon which the Scottish Office Secretary of State has asked him to report?
Are the proceedings of the Meat Industry Forum, to which reference is made in the Statement, published in any way, and if so how are they published? I think I can claim in a modest way to be fairly active in the meat trade and certainly I have seen no reference to the Meat Industry Forum's deliberations. What is to happen now? Is the report to be published at all as a separate document? Will there be an inquiry into slaughterhouses in general in the light of the report? What effect does the noble Lord think that today's adverse publicity will have on public confidence in the Meat Hygiene Service as such and its initiatives on the vital task of assuring the world at large that our red meat industry is actively engaged in restoring its image?
Lord Beaumont of Whitley: My Lords, I thank the Minister for repeating this rather deplorable Statement. The questions already asked from the Labour Front Bench go to the heart of the matter. I wish to add one
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or two more. The answer to whether Professor Pennington and his team were told is no, because I think he has already said that he was not told. Why was he not told is the pertinent question to ask?
Is it true that the first reaction of the Meat Hygiene Service in Scotland, for instance, to these kind of recommendations was a 10 per cent. cut in the number of its inspectors in Scotland from 125 to 112? If we follow the pattern of the answers given by the noble Lord, Lord Henley, to a Question asked five minutes ago in your Lordships' House we shall no doubt be told that it is no business of the Government how the Meat Hygiene Service organises itself as long as it produces the results. However, it did not produce the results, did it? What control is there over this alarming cut in the number of inspectors? The abattoir groups made vast profits out of the BSE cull last year. Why was it not insisted that some of that be ploughed back into hygiene improvements? Mr. Swann says that the full recommendations have yet to be implemented. Why is that? Is that not just another example of the long line of government secrecy in a Government which we are always told are committed to full exposure?
Lord Lucas: My Lords, I rather resent the attitude taken by both Opposition spokesmen on this matter because they have known for a long time exactly what the state of our abattoir industry was. They have known it because my noble friend Lord Howe referred to it explicitly and in detail in the debate on the setting up of the Meat Hygiene Service. It may help noble Lords if I repeat what my noble friend said:
"A number of organisms—such as E coli 0157:H7, some salmonella serotypes and Listeria monocytogenes—have been implicated in food poisoning incidents associated with the consumption of meat and meat products. Some commentators argue that meat is a low-risk product because it is normally cooked before consumption and that therefore there is no need to be concerned about contamination with organisms of this kind. The Government do not accept this argument for one second. While it is true that thorough cooking will destroy most, if not all, pathogenic micro-organisms, the hazards associated with cross-contamination in the distribution chain or in the kitchen remain a matter of concern. While no one expects an abattoir to resemble an operating theatre, sensible steps must be taken at all stages of production to limit the risk of contamination. The most appropriate point to address the problem of contamination with pathogenic organisms is the slaughterhall. That is what these regulations are designed to do. Many abattoirs in this country are well managed and produce meat which is of a good hygienic standard. Unfortunately, and I will not go into detail, this is not true of all of them".—[Official Report, 18/4/95; cols. 425–6.]
That is the situation as portrayed by my noble friend in April 1995. All this report that is being referred to today does is detail the situation as we knew it to be so that, based on that detail, the industry could begin to reform itself.
The Meat Hygiene Service was established with the mandate to improve the way slaughterhouses were run and to work with the industry in doing that. I do not know if the noble Lord, Lord Beaumont, or the noble Lord, Lord Gallacher, would have wished us to take precipitate action. To my mind that would have been entirely inappropriate. If one has a school system—as one does—which is operating below one's best hopes, one does not just go around closing the schools which

1975
are performing badly. One puts a lot of effort into working with them to make things right. Here we had a situation where there was contamination of food. It was not something new; it had been going on for a long time, if not for ever. It is something we are determined to improve. We have set up the organisation to make it improve but the right way to make it improve is to work with the industry, to speak with a soft voice but carry a heavy stick. First of all, we must speak with a soft voice to see if we can get things done by agreement. That is what the Meat Hygiene Service has been doing, and it has been doing so with great success.
Noble Lords opposite have supported that policy. They will remember the discussions we had on the temporary derogations from the new regulations. That was a policy which noble Lords opposite supported, and quite rightly too, so that small slaughterhouses should have time to bring their premises up to the required standard. The report itself was prepared for communication to the industry. It was known that the report would be produced—as I said in the Statement—because this was one of the things that the Meat Hygiene Service had to do. When the service had done so, it took up a page of its annual report saying that it had been done. It was part of a process, dealing with a known problem in a known way. It was not distributed to Ministers let alone to anyone else. It was an internal working document.
Reference has been made to the comments that Professor Pennington made this morning. At the outset of Professor Pennington's inquiry, MAFF offered him all evidence and support that he might wish. Professor Pennington has yet to take up that offer. I hope that he will do so. I cannot understand the remarks he made this morning. He has never asked for, so he has never been refused, any information. We have just made an offer, and have yet to be taken up on that offer. When he asks, he will presumably not wish to see merely a condensed, summarised version which is prepared for a general discussion with the industry. He will want to see a great deal more detail and that will be available to him down to individual reports on individual slaughter houses.
As was outlined in the Statement, the Meat Hygiene Service has been addressing the dangers and difficulties identified by the survey in the slaughterhouse industry. There has been a great deal of improvement. Targets have been set for those improvements. Processes are being undertaken to document and deal with the problem of dirty cattle coming into the slaughterhouse system. If slaughterhouses do not respond to kindness and encouragement they will be closed; and that process is within a few months of completion with some slaughterhouses. It is not an empty threat to slaughterhouses. If they do not work with the Meat Hygiene Service, if they do not continue to improve their standards, their licence to operate will be withdrawn.
In its brief life, the Meat Hygiene Service has been a great success story. It is one which we look forward to continuing. I am saddened that the Financial Times should descend to tabloid standards of journalism in promoting this story. It bounced MAFF with it at five o'clock last night. It gave us no opportunity to provide
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the evidence which would have enabled the newspaper to present the truth rather than the story. If it had had the full truth it might not have considered publishing because it was so obvious and so well known.
The noble Lord, Lord Gallacher, asked me a couple of questions which I have not covered. He asked when the report would be made fully public. It has been placed in the Library of the House and we shall certainly copy it to anyone who is interested in it.
As regards the relationship with BSE, that has been in the public domain for a long time. If the noble Lord cares to read the BSE enforcement bulletin, which is published regularly, he will see that that aspect of slaughterhouses—it is treated with immense seriousness—is dealt with in great detail. Any delays in finalising the report about which we are talking today have been due to the fact that the Meat Hygiene Service has been devoting a great deal of energy to dealing with BSE, and that has been given priority, and quite rightly so.
The noble Lord, Lord Beaumont of Whitley, asked a question about the inspectorate. I do not have an answer at the moment. I shall write to the noble Lord. It is not a statistic that I know; nor do I know the basis for it.
I hope that noble Lords opposite will forgive me for a somewhat fierce rebuttal of allegations that have been made today. But what has been said in newspapers today is a slur on the Meat Hygiene Service which is both undeserved and destructive.
3.54 p.m.
Lord Campbell of Alloway: My Lords, has the Minister read in the newspapers the criticism of the conduct of my right honourable friend Douglas Hogg? If he has, can he fairly and squarely confirm that that criticism is wholly without justification and utterly misconceived?
Lord Lucas: My Lords, yes, indeed. I certainly confirm that. Indeed, in present company I doubt that I would dare do otherwise.
Lord Monkswell: My Lords, from these Back Benches I thank the Minister for repeating the Statement. I think that I voice the concern of the House if I suggest that when people can die as a result of contracting E. coli it is rather different from seeking improvements in the educational standards of our school children.
We note that the Government effectively nationalised the Meat Hygiene Service a couple of years ago. While in principle a number of us will appreciate that nationalisation can be beneficial, we have grave doubts about any nationalised concern under the control of this Government.
The Minister suggests that the Meat Hygiene Service is a success story. Given the reports that have emerged recently, and the outbreaks of E. coli which have hit not just Scotland but other parts of the United Kingdom, I am not sure whether many members of the general public would think of the Meat Hygiene Service as a success story. Perhaps I may ask the Minister one

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specific question. How many people died as a result of E. coli and other related factors in the two years prior to the nationalisation of the Meat Hygiene Service, and how many since?
Lord Lucas: My Lords, I do not have an answer to the noble Lord's specific question.
As regards his general question, nationalisation is not the word that I would have used to describe the process. Perhaps it is centralisation since an operation under public control locally became an operation under public control centrally. The report that we are discussing today documented the very poor state of the industry under that local control and, I think, entirely justified our decision to take it under central control and to put a lot of effort into improving the situation.
As to the seriousness of people being infected by E. coli, of course it is a horrible disease and a fatal one. The world is full of dangers. Smoking, driving, and walking the street at night are dangers that exist. The Government are putting a lot of effort into improving the situation. That is what we are doing in this case. We cannot eliminate all dangers by wishing them away. We shall never eliminate the possibility of contamination in raw meat. There is nothing that we can do to reduce it to zero. But we can work at improving the situation, as we can work at reducing many other dangers to which we are subject in this life; and that is what we have been doing.
Baroness Carnegy of Lour: My Lords, noble Lords are doubtless aware that the business of a slaughterhouse is extremely messy, both as regards the killing of animals and dealing with the carcass. The position can be greatly helped, and the cost greatly reduced, if farmers are very particular about how they deliver their cattle to the slaughterhouse, making sure that they are absolutely clean.
Does the Minister know whether slaughterhouses produce an incentive to encourage farmers to do that; or do they simply trust them? It costs a bit of money to make the cattle absolutely clean but it is extremely important for public health.
Lord Lucas: My Lords, the proposal advocated by my noble friend has been advocated for a long time by the Meat Hygiene Service and will form a major part of the recommendations and code of guidance which is to be published in a month's time. It is sensible. Some slaughterhouses, in particular those associated with the major supermarkets, already do so. We wish to see that process become universal.
Baroness Farrington of Ribbleton: My Lords, will the Minister expand a little on his earlier statement about Professor Pennington not asking for information. Given the widespread publicity on the E. coli infection, could anyone involved and responsible for producing reports which contained reference to E. coli have been unaware of the need to draw this to Professor Pennington's attention?
Lord Lucas: My Lords, no, I do not suppose there was. That is of course why we immediately offered
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Professor Pennington evidence. It is inconceivable that he would not want evidence on the operations of slaughterhouses. We are waiting for him to ask. He will then have all the evidence he wishes.
The professor must be able to take the evidence in the order he wishes. I believe that to date he is concentrating on the specific problems that occurred in the distribution chain downstream from the point of cooking in a certain butcher's shop in Scotland. He is known to wish to address the question of how that infection got into the butcher's shop in the first place. But at present it appears that he has not turned his mind to it.
Lord Soulsby of Swaffham Prior: My Lords, regardless of the question of whether there was suppression of the report, its contents must be of concern to all, especially the finding that certain slaughterhouses are deficient in their practices. None of the practices apparently described in the report should occur in any slaughterhouse, let alone a few. Will the Minister assure the House that more effective supervisory procedures will be set in place in the future to safeguard against these undesirable practices? Will he also agree that they should be in the hands of an increased veterinary staff?
Lord Lucas: My Lords, I agree with my noble friend on the importance of veterinary staff. A major part of the Meat Hygiene Service effort is to make sure that appropriately skilled staff are on hand to watch operations in slaughterhouses. Regarding my noble friend's point about the need to change things, we are satisfied that what we are doing and what is being done by the Meat Hygiene Service will result, as hoped for and as planned, in a much better standard of hygiene in our slaughterhouses and in the meat that they produce.
Baroness Mallalieu: My Lords, is the Minister aware that this morning a number of European newspapers reported this matter as an attempt by the British Government to conceal the true state of poor hygiene in our abattoirs? In view of the possible consequences that that may have for the ultimate lifting of the beef export ban, will the Minister tell the House what steps the Government propose to take to correct that view if it is wrong?
Lord Lucas: My Lords, the noble Baroness gives me even more cause to regret the action by the Financial Times. One would have hoped that it was the last responsible newspaper left in this country and that it would have acted otherwise. Since it did not, we must deal with the press through the press. My right honourable friend will hold a press conference shortly which I hope will address all these matters. It will certainly make available to the press members of the Meat Hygiene Service, the Chief Veterinary Officer and others, who will be available to answer questions on this matter. We have nothing to hide. It is a story of success that we have to tell. It is a story of known problems going back a long way. The European Community sends

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its own inspectors round abattoirs. They know exactly what they are like. There really is nothing to hide, and nothing has been hidden.
Viscount Waverley: My Lords, am I right in thinking that large quantities of meat are imported from the developing world? If so, to what degree do those countries meet the hygiene regulations of this country and the European Union?
Lord Lucas: My Lords, I do not have the information with me to answer that question. I shall write to the noble Viscount.
Viscount Ullswater: My Lords, instead of blaming the Meat Hygiene Service, as we heard, and not expecting the report, which is critical, to lead to better standards within abattoirs, is it not a fact that the failure to deliver a high standard of hygiene within slaughterhouses was the fault of local authority inspectors; and that that failure led not only to the establishment of the Meat Hygiene Service but to this report? Should the Government not now give all support to the Meat Hygiene Service to deliver a high standard of hygiene within the service, and, as my noble friend Lord Soulsby said, to bring in the necessary experts to deliver that high standard?
Lord Lucas: My Lords, I do not think we should blame local authorities too much. The system was very difficult to operate, with 300 different authorities all trying to operate independently or semi-independently of each other. There was never any hope that they would achieve a unified standard. That is one of the reasons why the Meat Hygiene Service was the right organisation to bring into place. I am delighted to say that noble Lords on all sides of the House supported that measure. I am sorry that the same cannot be said of colleagues in another place.
Lord Rea: My Lords, does the Minister not feel that, had the report from the Meat Hygiene Service of a year ago been brought into the public eye then, the slaughterhouse industry would have taken far greater note of its criticisms than it did while it was privately circulated? According to a report I read, Professor Pennington said in conversation that he had just about reached the conclusion that a survey of all slaughterhouses such as was described in the report was necessary; however, he did not know that it had been carried out and that the results had been available all this time. Surely it should have been the Government's job at least to have told Professor Pennington that the report was available.
Lord Lucas: My Lords, if Professor Pennington feels that we have done less than we should have done to inform him of what was going on, then of course I accept that criticism. We have offered all the evidence. I am sure that the Professor knows of the existence of the Meat Hygiene Service and what it does and that it will therefore have a lot of information
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available for him. If he had asked for evidence from us and we had failed to produce that particular report among it, I should find it possible to accept criticism now. However, since the Professor asked for nothing, I am not surprised that we did not provide him with this piece of information, which is not of itself the sort of information in which we should have thought he would have a particular interest.
I do not think that what was done by the Meat Hygiene Service is in any way subject to reasonable criticism. It has acted extremely well throughout. The same can be said for the vast majority in the slaughterhouse industry. They have responded to the introduction of the MHS very well. They are making in large numbers the improvements that are required of them and are steadily improving their performance. There are of course some recidivists. They are nearing the end of their licence to fail to improve. One loses one's patience in the end, and they will be dealt with severely.
Lord Beaumont of Whitley: My Lords, while I am gratified that the Minister will be writing to me—it is always a pleasure to receive a letter from the noble Lord—I am rather shocked that he did not come to this House today armed with answers to the questions about the reduction in the number of meat hygiene inspectors. That is surely absolutely pertinent to our discussions. The Government say that, in spite of unfortunate deaths, the whole thing is a success, and apparently that success is contributed to by cutting the number of inspectors in Scotland from 125 to 112. I hope that the Minister's letter will contain a very good explanation, not only for what happened but for his not being able to provide the answer today.
Lord Lucas: My Lords, I accept the noble Lord's criticism. It is a matter of which I should have made myself aware. Again, I apologise for the shortness of notice. This is a part of MAFF's empire which has been, and is, doing extremely well. The criticism that has blown up today was somewhat unexpected. My briefing is therefore limited to what I was able to learn this morning.
Lord Thomson of Monifieth: My Lords, is it not a little shabby of the Minister to blame Professor Pennington for not having asked for a report which he did not know existed? The Minister talks about an invitation to Professor Pennington. When was that invitation issued? Was it issued today, after these events?
Lord Lucas: No, indeed, my Lords, it was issued at the outset of Professor Pennington's inquiry. It was always expected that the Professor would take us up on it when he wished to do so.
Lord Harlech: My Lords, does my noble friend the Minister agree that we are confusing issues, and that over the years there has been a great deal of regulation pertinent to slaughterhouses which has resulted in a very large number of closures as a result of the high standards

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required? Is it not the case that very often the disease chain is commenced after the product, the carcass, leaves a slaughterhouse which is highly regulated?
Lord Lucas: My Lords, it would be unfair to say that there have been a lot of closures of slaughterhouses specifically for hygiene reasons. By and large, overt hygiene problems are dealt with swiftly and effectively. Certainly there has been a great deal of pressure on slaughterhouses to improve, to go beyond the regulations in order to achieve better standards than those required by law. That is part of what the Meat Hygiene Service is doing. There is still a problem in slaughterhouses that needs to be addressed. There may be sources of contamination "downstream". However, that does not exempt slaughterhouses from improving on the present position.
Baroness Farrington of Ribbleton: My Lords, will the Minister tell the House on which date and in which publication Professor Pennington could first have read of the existence of this report? Is he seriously saying that someone doing research in relation to an issue as widely publicised as the E.coli outbreak, given that the report had been drawn to the attention of the Meat Hygiene Service, cannot expect the Government to make certain that it is made available to him?
Lord Lucas: My Lords, I do not wish to major too much on possible disagreements with Professor Pennington; I think they stem from questions he was rather bounced into at an early hour this morning. Clearly, Professor Pennington was going to want to know what the Meat Hygiene Service had to tell him: it is the main—indeed, the only—source of reliable information on what takes place in slaughterhouses throughout the country, what practices and problems there are and what is being done about them. Inevitably he will wish to have access to a very large amount of information that the Meat Hygiene Service has, of which this report is a minor and insignificant example. Indeed, it is probably rather too condensed and digested to form any useful part of Professor Pennington's evidence; he will wish to have a great deal more detail than is contained in this report.
At the outset of Professor Pennington's inquiry MAFF offered to make available to him any evidence that he wished to have. We are certain that he will take us up on that offer, but he has not done so yet. It is up to Professor Pennington when to ask for whatever he wants; he knows that we have it.
Lord Rea: My Lords, perhaps I may make it clear to the noble Lord that no noble Lord has blamed the Meat Hygiene Service for what has happened but rather the Government for their soft-pedalling on the information that they had and for having cut the numbers of staff of the Meat Hygiene Service, as a result of which it is less effective than it might be.
Lord Lucas: My Lords, the document we are discussing was at all times an internal Meat Hygiene Service document. It was never until today seen by
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Ministers; nor had Ministers any particular reason to see it, because it merely detailed something that they already knew about and which they had already taken action to solve by the creation of the Meat Hygiene Service.
I do not believe that there is any great fire behind all the smoke that has been generated today. As I said at the beginning of my answer to the Front Bench questions, this is a problem which the Government not only knew about but exposed to gaze within this House at the outset of the creation of the Meat Hygiene Service. There really was nothing new in the report other than details of the ways in which the problems were occurring.

Crime and Punishment (Scotland) Bill
4.12 p.m.
The Lord Advocate (Lord Mackay of Drumadoon): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Mackay of Drumadoon.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount St. Davids) in the Chair.]
Clause 4 [Restriction of liberty orders]:
Lord Sewel Lord Sewel moved Amendment No. 66:
Page 6, line 34, after ("person") insert ("of 16 years of age or more").
The noble Lord said: In moving Amendment No. 66 I shall also refer to the consequential amendment, Amendment No. 74. In Clause 4 the Bill moves to the difficult issue of restriction of liberty orders. This amendment draws attention to the extension of restriction of liberty orders to those aged under 16 years.
This is a difficult area of the criminal justice system and of penology generally, particularly when what is called tagging is to be applied to people younger than 16 years of age. Surely it is incumbent upon us to proceed with care and due deliberation and on the basis of proper research before introducing a measure that is so different from anything that we have previously experienced within the criminal justice system.
I believe it is of value to trace the provenance of the clause as it stands. When the Bill was originally published in the other place it excluded those aged under 16 years. As I understand it, the clause as it now stands was a product of a change introduced at Report stage in the other place. At the time of the Committee stage and later, the Government indicated in the other place that consultations would take place with appropriate bodies in Scotland on their views as to the desirability of extending tagging to young people. As I understand it, there were 102 responses to the invitation to consult; again as I understand it, there was one response in favour of extending tagging to those under 16 years of age. I leave it to the noble and learned Lord the

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Lord Advocate to identify the person who was in favour of it if he wishes to do so; if he does not, perhaps I will help him later on.
A valuable part of the product of that consultation exercise was the views that were obtained from the Association of Scottish Police Superintendents and the Scottish Police Federation. I quote from their observations at the time. Referring to the proposal to extend tagging to those under 16 years of age, the Association of Police Superintendents said:
"Tagging would hugely divert attention from the positive purposes of supervision".
The Scottish Police Federation said something very similar:
"We do not believe that electronic tagging would be a positive incentive to a child to demonstrate greater responsibility and self-control".
The product of the consultation process was overwhelmingly against the extension of tagging to those aged under 16. The fundamental question has to be asked: on what basis have the Government determined to proceed with a measure that has no clear and demonstrable support in Scotland among the very people who will be affected at the hard edge of the criminal justice system? Was it on the basis of research carried out in Scotland? No. Was it on the basis of some pilot scheme somewhere else? No. There is no firm basis whatever on which this major change in policy can be founded.
Perhaps I may bring some of our concerns to the attention of the noble and learned Lord the Lord Advocate. First, when this provision is applied to those under 16, it will be essentially discriminatory in its effects between boys and girls. One of the procedures advocated for tagging is the use of an anklet. If a girl who is subject to this provision is wearing a normal skirt—as part of a school uniform in many cases—the anklet will be clearly visible. The only way to avoid that would be for her to wear trousers all the time: to wear trousers during gym lessons; to wear trousers when perhaps the school's rules are that skirts should be worn. This girl would clearly be identified as an exception. We enter the realm of stigma. The provision is discriminatory and stigmatising. Clearly insufficient thought has been given to that aspect.
Secondly, there is the risk of the unintended consequence that in some quarters and some circumstances tagging will become virtually a badge of defiance. That itself would undermine the whole purpose because there would be a process of negative reinforcement. The young people involved may say, "Look I have one. Haven't I got one over on the system?", or, "Isn't this a clear signal that I'm some form of difficult trouble-maker?". We know that in some areas the value systems of young people in those situations do not reflect the value systems of the wider society. By offering the tag as a badge of defiance, it may well produce the opposite of what the Government intend.
As I said, there has been no adequate research upon which that change of policy can be based. The consultation exercise itself came out strongly against it
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from all quarters. There is a genuine risk that it will be discriminatory in its application. There is also a risk of it having the most unintended and negative consequences.
I believe that the decision to extend the age below 16 years, taken relatively late in the legislative process, was ill judged. There is very little that can be said that will make it possible for such an introduction and such change of policy to act in a positive way. I beg to move.
Baroness Carnegy of Lour: I agree very much with the remarks of the noble Lord, Lord Sewel. But I am not sure that he should polish off this idea quite so easily. Not long ago I stayed in a small glen in Argyllshire. Night after night and evening after evening houses were broken into and small possessions were stolen. It turned out that that was being done by four boys aged 10 and 11 who lived in the glen.
It is very difficult to persuade the Scottish establishment to try anything new. I believe that the public would like to see something new tried in such cases. In order to get this issue in proportion, perhaps we could be told how likely it is that children will be subject to tagging. Can my noble and learned friend say whether or not my information is right? Will this disposal be available to the courts but not to children's panels? I understand that a comparatively small number of children come before the courts under those circumstances and, if they do, very few will be, so to speak, suitable subjects for trying out tagging.
The noble Lord talked as though everybody who had a restriction of liberty order would be tagged. That would not be the case. As the Bill stands at present, it would be only for those for whom it would be suitable. I may have misunderstood but it seems to me that very few children indeed will be affected. But there may be a few—I am not sure whether the young people in the glen that I mentioned might not be a good example—who, if they were given a very small restriction of liberty order, could be assisted in mending their ways.
It seems to me that one should not lightheartedly turn down this proposal. I too was surprised when I heard about it. In fact, I was listing in another place when the change was made. I heard the arguments and the noble Lord has repeated them. However, I should like to know from my noble and learned friend whether my assumptions are correct.
Lord Macaulay of Bragar: Before the noble Baroness sits down, perhaps I may say that I understand that part of the Government's philosophy at the moment is to induce parental responsibility for the behaviour of their children. Does she agree that tagging takes away from parents the responsibility to look after their children and therefore is contrary to present government policy? In other words, if the parents know that a child has been tagged and is being supervised by electronic or other such means, they do not have to bother but leave social workers and others to get on with supervision at public expense.
Baroness Carnegy of Lour: Perhaps the noble Lord will just think for a moment about what it would be like to have one's child—say, in the glen about which

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I spoke—subjected to a restriction of liberty order with or without a tag, and indeed very likely without a tag in that case. The parents would be unaffected and their sense of responsibility would not be enhanced.
The Earl of Mar and Kellie: Some people are undoubtedly attracted by the thought of children being electronically tagged. However, I suggest that those who think deeply about the matter are horrified by the idea of children being tagged—in effect, branded—and marked out as offenders for all to see. I believe that in fact no harm and only good come from the process of curfewing young troublemakers and placing them on that form of temporary or partial house arrest, provided that it is within the context of a supervision requirement.
The Bill proposes the more humane form of monitoring; namely, human monitoring by visits and telephone and with guidance and advice. However, I understand that the electronic monitoring version is favoured. This amendment rightly excludes children from remote and guidanceless electronic monitoring, which is the main proposal in the Bill. There is a considerable risk of a child or a young person under 16 developing an offender status or basking in notoriety and showing off. Frequently they have little else to show off.
Also unhelpful is the other risk: namely, that of heaping shame on an embarrassed youngster or young girl, however bad, and possibly drawing vigilante attention to that young person. Especially, it does not allow such a person to grow up and move on to maturity and, it is to be hoped, avoid offending behaviour. Let me create the slogan: tags stifle progress.
I criticise the Bill, despite it having a useful strategy of curfewing, for taking a faulty technical approach.
Lord McCluskey: From the list of groupings, it will be seen that my amendment, Amendment No. 67A, and others are not grouped with Amendments Nos. 66 and 74. I should perhaps have urged that they should be so grouped because they are all to the same effect. The substance of my amendments which go along with Amendment No. 66 can be seen positively in Amendment No. 68:
"No [such] order made in respect of a child offender shall require monitoring of the offender by mechanical means".
As the Committee will be aware, in Scottish criminal practice, a child is, generally speaking, one who is under the age of 16. But, except in the most serious cases, children do not go into the criminal justice system at all. If the charge is one of murder or rape—I have presided over trials of children of less than 16 years in both murder and rape cases fairly recently—the penalty is bound to be custodial in some form or another. Similarly, if another serious offence—for example, a serious drugs offence—is charged, one would expect the penalty to be a custodial one.
One sees that Section 42 of the 1995 Act permits the Lord Advocate to indict children into the High Court, the ordinary court or indeed the summary sheriff court, but not the district court. So children can be dealt with in the ordinary way through the courts. But the vast
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majority of them are not dealt with in that way. As the noble Baroness indicated, they go to the children's hearing system. Under the system, they go, usually via the reporter, to the children's hearing system and may appear before the sheriff to see whether or not the grounds of referral are established. Afterwards, the hearing determines the disposal. I would be interested to know the answer to the noble Baroness's question as to whether this power is intended to be made available to children's hearings.
I understand that many of those who were consulted and expressed views support the same view; that is, that the attaching of a mechanical monitoring device to a child will be wholly unproductive and perhaps even counter-productive. It cannot possibly assist in rehabilitation. The whole idea of rehabilitation depends upon the philosophy of co-operation by the person who is to be rehabilitated. These provisions run entirely counter to the philosophy of the Kilbrandon Report upon which the Social Work (Scotland) Act 1968 was based. The current provisions reflect the scheme under that Act.
Even if the Lord Advocate chooses to prosecute in a court on indictment or in a summary court, the court will normally use its powers under Part V of the 1995 Act to send the child, via the principal reporter, to the children's hearing under Sections 48 or 49. I should have thought that it was entirely counter-productive for a child, who was not to be dealt with by a form of custody, to be dealt with in this fashion. The choice should be either protecting the public by putting the child in some form of secure custody or rehabilitating the child. To shackle a child to a mechanical device runs counter to winning a child's co-operation. It has been described as the modern equivalent of branding. One can see that we should not be mechanically branding children aged between nine and 15, even though one readily concedes the point made by the noble Baroness that children can be a nuisance.
With all due respect to the noble Baroness, "Let's try something new" is not a proper approach to criminal justice in relation to young people. That is a taxi driver approach to the matter. One should not introduce an anti-Kilbrandon measure on the basis that it is time we tried lightheartedly to introduce something new. The matter ought to be researched and it has not been researched.
I can guess the answer to a question asked by the noble Lord, Lord Sewel. I do not know who is in favour, but he asked why the scheme is being introduced in Scotland. The answer may be: because it is being introduced in England. The treatment of children in England in relation to their offending is entirely different from the treatment of children in Scotland. It may or may not be a good idea in England, but that sheds no light on whether or not it is a good idea in Scotland.
I strongly oppose the provision. I see it as an electronic step back into the dark ages and urge the Committee to support the amendments.
4.30 p.m.
Lord Hope of Craighead: I should like to say a few words, mainly in support of the observations made by the noble Baroness. My understanding is that measures which give powers of disposal to children's hearings have always been included in civil legislation and not in criminal legislation. Your Lordships had the occasion, the year before last, to review in great detail the powers of children's hearings. They are about to receive those new powers, which are to come into effect at the beginning of next month.
My understanding—perhaps the Lord Advocate will confirm this—is that this measure is confined to a small area; that is, those children who, in the Lord Advocate's discretion, need to be dealt with in the criminal courts. If that is the approach, it would not be right to describe it as an anti-Kilbrandon measure. Lord Kilbrandon himself recognised that there would be exceptions where criminal justice would be required to play its part.
The other point I should like to make is this. Difficult questions are raised by this issue and I regret that the matter was not the subject of more complete consultation. However, it would be a mistake to regard it as an issue which can be the subject of absolute answers. I recall at least one case which came before me in the Criminal Appeal Court involving a child who was very much out of control. The child was from a remote area and a great deal of harm was done locally. All their Lordships who sat with me regretted the fact that it had not been possible to intercept the child's behaviour in some effective way before he reached the stage of coming before the High Court.
It is because one has to regard the methods of dealing with children as open to a wide variety of cases that there may be some wisdom in the measure. Whether or not that is so is a matter which would have been better explored by more consultation. For that reason I have some reservations about the wisdom of the course being adopted at this time.
Lord Mackay of Drumadoon: In considering this matter, which I accept is an important one, we should bear in mind a number of considerations. The first is that mentioned by the noble and learned Lord, Lord Hope of Craighead; that is, that few children in Scotland are in fact prosecuted in the courts. As Lord Kilbrandon recognised, notwithstanding the introduction of a children's hearing system which he advocated, there would always be some who came outside that system.
Some children undoubtedly fall into the category mentioned by the noble and learned Lord, Lord McCluskey; that is, those who are charged with extremely serious crimes. But others fall into the category of much less serious matters, including housebreaking, theft, shoplifting, crimes of causing malicious damage and repeated motor vehicle offences. To give an idea of the figures with which we are dealing, in 1994 only 171 children had charges referred against them in the criminal courts.
Another important matter to bear in mind is that it is proposed, if these provisions come into force, that they would be operated on a pilot basis in different areas,
1988
restricted in the first instance to the sheriff and High Courts. That is an approach which has been adopted in England and a recent Home Office research study—No. 163—provides provisional findings of the research carried out into the use of electronic monitoring in the three areas examined.
Those who practise in the criminal courts will know that for a child to end up being prosecuted for a charge such as housebreaking, theft, shoplifting or a motor vehicle offence, means that in all probability the child will have been before a children's panel or a children's hearing on a number of previous occasions. Therefore, when those children come to court, the view has been taken by the procurator fiscal or Crown counsel—under the guidelines of the Lord Advocate—that, for that young offender under 16, prosecution is the way forward. In taking that decision, it is appropriate for the prosecutor to take into account information coming from the children's report, the police, social workers and others.
Those children have already been before a panel; they have had supervision requirements placed upon them, some perhaps with a condition of residence in a specific place. But that has failed to cure their offending. Therefore the risk of their going into custody is a real one. Consonant with the approach which has been followed by the Government, the wish is to provide another alternative to custody than that presently available. That is why curfew orders—as they are colloquially called—are being introduced. In principle they command a measure of support. Where the difference arises is in relation to the use of electronic monitoring.
To take account of some of the points mentioned in the debate, the noble Lord, Lord Sewel, referred to responses to the consultation document. I suspect he knew the answer to the question he posed and will not be surprised when I mention the name of one Phil Gallie MP as the gentleman who gave unqualified support to the proposal. That consultation covered the idea of introducing tagging as part of the sentencing at children's hearings rather than introducing it for the criminal courts. I understand that several of the respondents did not rule out entirely the possibility of electronic monitoring. These provisions are designed to try it out and to see whether it works. It would then be a matter for the Secretary of State to decide whether to extend it to all courts in Scotland or not to proceed with it at all.
Questions were raised about whether it would unfairly discriminate against girls as opposed to boys. The whole issue of children attending school wearing tags is a valid concern. But the provisions of the proposed Section 245C(2) would allow the court to order that the tag did not require to be worn continuously and therefore the order could provide that it would not be required to be worn during school hours.
Another suggestion was made that young offenders who were tagged would brag about it. Anyone who has worked with young offenders in the criminal justice system knows that on occasions they brag about all sorts of things—that their sentence in the young offenders'

1989
institution was longer than that of their co-accused or of their friend who was in court the previous week. Whether they brag about it continuously, one rather suspects not. But bragging about how you get on with the police and in court is one of the issues that anyone addressing the problems of young offenders has to look at. So I do not think that provides a complete answer to the issue either.
Very recently I visited a young offenders' institution in Scotland at Polmont and I sat in on a course being run with young offenders who were addressing the problems that their behaviour was causing. The particular topic they were discussing was how many of them had been warned by their teachers and by their parents that if they did not mend their ways they would end up in custody. I intervened to ask what might have stopped them ending up in custody, as all of them had been before the children's panel before. Two of them quite spontaneously mentioned the issue of tagging.
Whether it is wise to rely on such anecdotal evidence is a matter that has to be considered. But it certainly fits in with the views of young offenders as they have been reported to those who are researching the position in England. Perhaps I may quote from Home Office Research Study No. 163 on curfew orders with electronic monitoring. Paragraph 9 of the introduction states:
"The offenders interviewed for this evaluation spoke highly of the monitoring staff, and were quite positive about their experiences on the order … All of those interviewed had consented to the order in court, and all but one said that they had agreed in order to avoid a custodial sentence".
That provides support for what I mentioned earlier—that this is a real alternative to people going into custody.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for giving way. When he went to Polmont, was he introduced to the young people? Were the young people told who he was and why he was there? Was a prison officer present during his chats with these young people?
Lord Mackay of Drumadoon: I would not think that many inmates of any institution would require to be told who Lord Mackay of Drumadoon was when he walked in the door. I fully recognise that I am not the most popular person in Her Majesty's institutions in Scotland. Clearly, I was introduced as the Lord Advocate; clearly, the Solicitor-General, to mention someone we were talking about recently, was introduced as well. It is possible to be cynical and say that these young offenders said something just to please the Lord Advocate of the day, conscious of the fact that four weeks later he would be debating the matter in a Committee of your Lordships' House and wished to have something to say. I suspect not. I think the noble Lord will give me this—that I have acted in connection with young offenders over 25 years and that if I think there is something to be said for listening to their views, I am possibly in a reasonable position to assess that. I do not place too
1990
much reliance on it. I just report it to your Lordships as something that fits in entirely with the views obtained by researchers in England in examining the matter there.
Families and partners were generally very positive, as it meant that the offender could stay out of prison and be less likely to associate with other criminals. That takes account of a point made by the noble Lord, Lord Macaulay, that this would in some way interfere with parental responsibility. I disagree entirely with that observation. It seems to me that it helps to reinforce parental responsibility, because one of the things the court would have to do before imposing such an order with the consent of the offender is to be satisfied that the home circumstances were such that his or her case was an appropriate one for imposing the order.
In this field there can be no guarantee of success for each and every disposal which the court imposes. The whole history of the children's panel system illustrates that. It is respected in Scotland and it is respected furth of Scotland. But no one who works with it or has any dealings with it would accept that it solves every problem for every under 16 year-old who offends.
It is on that basis that the Government have presented the proposals in the Bill. We believe that to remove the option of remote monitoring, as it is called in the Bill, which can be subject to the conditions set out in new Section 245C of the 1995 Act, would be to weaken the chances of that option being successful. On that basis, I invite the Committee to reject the amendment and certain of the subsequent amendments to which we shall come in due course.
4.45 p.m.
Lord McCluskey: I have before me a copy of the paper Crime and Punishment, which was published in June 1996. Paragraph 9.13 deals with electronic monitoring orders which might usefully add to the range of sentencing options available to Scottish courts. Given that that document was published in June and that there was no invitation to consult in relation to it, although other measures were mentioned there in relation to children, can the Lord Advocate explain to the Committee why this idea was not promulgated in June 1996 and has made such a late appearance and led to such hasty consultation? Secondly, given the fact that some 100 bodies chose to respond, why was the only voice listened to that of Mr. Gallie?
Lord Mackay of Drumadoon: In fact, as I thought I made clear, Mr. Gallie's voice was not listened to in its entirety. He was for tagging following children's hearings as well as following court hearings. That view has not been accepted. I admit that it came into the Bill late. It came in after certain discussions within government. I understand that the proposal emerged publicly in October of last year, which was around the time that information was becoming available as to the success of pilot schemes in England. Initially, there were certain practical and technical difficulties with the tags.

1991
Possibly because of the emergence of this new information, Mr. George Howarth, a Labour Member of Parliament, when the matter arose during proceedings on the English Bill, said that there may be merit in extending the experiment further so that young offenders who commit more serious offences can be kept away from custodial sentences. The possibility that some young people will be diverted out of custody, but properly supervised, was one which he was minded to support. That encapsulates the Government's view.
I suggest to the Committee that it would be contrary to the whole philosophy of dealing with young offenders to exclude something which shows some prospects of keeping young offenders out of institutions. Time and again in the debates over the past few weeks people have been complaining about young offenders going to institutions. "Schools of crime" and other descriptions have been applied. This provision is designed to avoid that. There can be no guarantee that it will work 100 per cent., but the evidence from England suggests that there is some prospect of it achieving success in some cases. If it does, that it is a proposal which is worthy of the Committee's support.
Lord Sewel: The noble and learned Lord the Lord Advocate has rightly drawn the Committee's attention to the value which we place in Scotland on the children's panel system. I believe that there is a genuine concern on this side of the Committee that with the advent of this type of tagging for those under 16 years of age, there is a possibility of eroding the children's panel system as it is at the moment. Will there not be a possibility—I put it no stronger than that—that the procurator fiscal may decide to put a case to the court just to get the advantage of this type of disposal? We recognise that at the moment the number of children going to court is small. But may there not be the very real danger and risk that that will increase significantly and inappropriately? That is the whole point.
The noble and learned Lord draws our attention to the fact that the Government wish to carry out a pilot study before the Secretary of State makes a decision about extending the scheme throughout Scotland. It would give us some comfort if that were contained in the Bill. If the Lord Advocate came forward with an amendment indicating that these procedures were subject to some form of pilot study and that the full implementation of the scheme would be subject to a proper and searching evaluation, then we would be better placed to come closer together on the issue. As it is, the change in policy which occurred in the other place between Committee and Report stages shows haste and lack of consideration or proper basis for the introduction of policy. It was late in the day and it was hurried. A major change of direction in policy and an entirely new procedure were carried through without proper study and justification. I shall have to seek the view of the Committee.
4.53 p.m.
On Question, Whether the said amendment (No. 66) shall be agreed to?
Their Lordships divided: Contents, 70; Not-Contents, 137.

Division No. 1

CONTENTS

Addington, L.

McCluskey, L.

Archer of Sandwell, L.

Mclntosh of Haringey, L.

Avebury, L.

McNair, L.

Beaumont of Whitley, L.

Mallalieu, B.

Blackstone, B.

Mar and Kellie, E. [Teller.]

Borrie, L.

Merlyn-Rees, L.

Broadbridge, L.

Milner of Leeds, L.

Bruce of Donington, L.

Monkswell, L.

Callaghan of Cardiff, L.

Morris of Castle Morris, L.

Calverley, L.

Murray of Epping Forest, L.

Carlisle, E.

Nicol, B.

Carmichael of Kelvingrove, L.

Peston, L.

Clancarty, E.

Prys-Davies, L.

Cocks of Hartcliffe, L.

Redesdale, L.

David, B.

Richard, L.

Desai, L.

Robson of Kiddington, B.

Dormand of Easington, L.

Russell, E.

Dubs, L.

Serota, B.

Ezra, L.

Sewel, L.

Farrington of Ribbleton, B.

Simon, V.

Gallacher, L.

Stallard, L.

Gould of Pottemewton, B.

Strabolgi, L.

Graham of Edmonton, L. [Teller.]

Taverne, L.

Harris of Greenwich, L.

Thomas of Walliswood, B.

Haskel, L.

Thomson of Monifieth, L.

Hayman, B.

Thurso, V.

Hilton of Eggardon, B.

Tope, L.

Holme of Cheltenham, L.

Tordoff, L.

Hughes, L.

Turner of Camden, B.

Hylton, L.

Wallace of Coslany, L.

Jeger, B.

White, B.

Jenkins of Putney, L.

Wigoder, L.

Longford, E.

Williams of Elvel, L.

Macaulay of Bragar, L.

Winchilsea and Nottingham, E.

McCarthy, L.

Winston, L.

NOT-CONTENTS

Aberdare, L.

Cranbrook, E.

Addison, V.

Crickhowell, L.

Ailesbury, M.

Cross, V.

Ailsa, M.

Cuckney, L.

Alexander of Tunis, E.

Cullen of Ashbourne, L.

Allenby of Megiddo, V.

Cumberlege, B.

Anelay of St.Johns, B.

Davidson, V.

Annaly, L.

Dean of Harptree, L.

Annan, L.

Denham, L.

Astor of Hever, L.

Dixon-Smith, L.

Attlee, E.

Dundee, E.

Belhaven and Stenton, L.

Ellenborough, L.

Birdwood, L.

Elliott of Morpeth, L.

Blatch, B.

Elton, L.

Bowness, L.

Flather, B.

Brabazon of Tara, L.

Forbes, L.

Braine of Wheatley, L.

Fraser of Carmyllie, L.

Brougham and Vaux, L.

Gainford, L.

Burnham, L.

Goschen, V.

Butterworth, L.

Hailsham of Saint Marylebone, L.

Byford, B.

Hamilton of Dalzell, L.

Cadman, L.

Harlech, L.

Campbell of Alloway, L.

Harrowby, E.

Campbell of Cray, L.

Hayhoe, L.

Carnegy of Lour, B.

Hemphill, L.

Chalker of Wallasey, B.

Henley, L.

Chelmsford, V.

Holderness, L.

Chesham, L. [Teller.]

HolmPatrick, L.

Clanwilliam, E.

Hooper, B.

Clark of Kempston, L.

Howe, E.

Coleridge, L.

Ilchester, E.

Colwyn, L.

Inglewood, L.

Courtown, E.

Kingsland, L.

Cranborne, V. [Lord Privy Seal.]

Lauderdale, E.

1993

Layton, L.

Quinton, L.

Liverpool, E.

Rankeillour, L.

Long, V.

Reay, L.

Lucas, L.

Rees, L.

Lucas of Chilworth, L.

Rennell, L.

Lyell, L.

Renton, L.

McColl of Dulwich, L.

Romney, E.

McConnell, L.

Rotherwick, L.

Mackay of Ardbrecknish, L.

St. Davids, V.

Mackay of Clashfem, L. [Lord Chancellor.]

St. John of Bletso, L.

Seccombe, B.

Mackay of Drumadoon, L.

Shaw of Northstead, L.

Macleod of Borve, B.

Simon of Glaisdale, L.

Marlesford, L.

Skelmersdale, L.

Merrivale, L.

Soulsby of Swaffham Prior. L.

Mersey, V.

Strange, B.

Miller of Hendon, B.

Strathclyde, L. [Teller.]

Monson, L.

Sudeley, L.

Montgomery of Alamein, V.

Swansea, L.

Mottistone, L.

Swinfen, L.

Mowbray and Stourton, L.

Terrington, L.

Munster, E.

Teviot, L.

Murton of Lindisfarne, L.

Teynham, L.

Napier and Ettrick, L.

Thomas of Gwydir, L.

Nelson, E.

Thurlow, L.

Norrie, L.

Tollemache, L.

Northesk, E.

Trefgame, L.

Orr-Ewing, L.

Trumpington, B.

Oxfuird, V.

Tugendhat, L.

Park of Monmouth, B.

Ullswater, V.

Pearson of Rannoch, L.

Vivian, L.

Pender, L.

Westbury, L.

Pilkington of Oxenford, L.

Wise, L.

Platt of Writtle, B.

Wynford, L.

Prentice, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5 p.m.
Lord Sewel Lord Sewel moved Amendment No. 67:
Page 6, line 35, after second ("the") insert ("High Court or Sheriff").
The noble Lord said: In moving this amendment, I am doubling for my noble friend Lord Macaulay of Bragar yet again. The effect of Amendment No. 67 would be to ensure that only the High Court or the sheriff court will be able to issue restriction of liberty orders. It will be apparent to those familiar with the Scottish court scene that that provision removes from the district courts the ability to make restriction of liberty orders. Coming from a local government background, perhaps I should be a little careful of the words I use but let me put it this way: the district courts in Scotland in part grow out of the local authorities. Those of us who have from time to time been close to local authorities and the district courts have a degree of concern that if such a major and new disposal were available to them without any qualification or moderation, as the Bill sets out, there is a risk of an increase in the number of inappropriate disposals. There is a risk of the restriction of liberty orders being used inappropriately.
I have much greater confidence that the High Court and the sheriff court will use the powers sensibly, reasonably and rationally, but I am not so convinced, given the amount of lay involvement at district court level, that we can be confident that this novel
1994
disposal, which is far-reaching in its social consequences, will be used appropriately in all cases. Therefore, at this stage we seek the restriction of the disposal to the High Court or sheriff court. At some time in the future, when the disposal has had time to bed down, it may be appropriate to consider extending it to the district court, but I do not think that it should happen at the first stage. I beg to move.
Lord McCluskey: It appears to me that under Section 42 of the Criminal Procedure (Scotland) Act 1995, no court other than the High Court or sheriff court shall have jurisdiction over a child under the age of 16 years for an offence. I thought that that provision covered the matter, but perhaps the Lord Advocate will make it clear if I have misunderstood the situation.
The Earl of Mar and Kellie: The amendment rightly seeks to exclude restriction of liberty orders from the district courts even if there is, with respect, a stipendiary magistrate. I presume that that is only in Glasgow. I believe that tagging is appropriate only for offenders for whom at the time there is presumed to be no hope and as an equivalent to imprisonment. I accept that there is a phase in some people's offending careers when they are quite unrepentant, still on an offending high and enjoying every minute of it. I accept that tagging may then be appropriate for those described in the popular press as "hardened criminals"—that is, those who are quite oblivious to what they are doing to others and who believe that they are right to be doing it. At that stage of deviant development, the offender should be appearing before a sheriff or in the High Court. I cannot accept that this form of partial detention is appropriate for the minor or summary charges arising in district courts.
Lord Hope of Craighead: I hope that the noble and learned Lord the Lord Advocate will give the amendment careful consideration. I speak from a background of having attended training courses for sheriffs and district court justices. We must remember that although the sheriffs and High Court judges are professional judges and one can therefore expect reasonable consistency of decision, the district court judges are lay judges. Indeed, some of them do not serve all that often—perhaps no more than several times during a six-month period—and they sometimes find it difficult to know when to make use of the various powers available to them.
The Lord Advocate described a pilot scheme. One can understand the wisdom of having a pilot scheme when introducing such measures, but if the philosophy is to proceed by stages, I suggest that it would be wiser to exclude district courts at the moment. No doubt the matter can be dealt with later by an amending Act when the time is right. If the clause is left as it is and if the piloting is done area by area, it would seem to follow that district justices would be entitled to make use of the power. I see risks of inconsistency and unfairness and I believe that it would be wiser to avoid those risks at the moment.
Lord Mackay of Drumadoon: The point at issue is comparatively narrow. As the noble and learned Lord, Lord McCluskey, pointed out, Section 42 of the 1995 Act restricts the courts in which children can be prosecuted. My understanding, although I shall certainly reflect on this further, is that the only children who can be prosecuted in the district court are those who are over 16 but who are still subject to supervision by the children's panel. Therefore, we are dealing with a select group of individuals. In practical terms, not very many people are likely to be affected by the provision one way or another.
I should make it clear that there are no plans at the moment to mount a pilot scheme in a district court. Such plans would require regulations under new Section 245A(10), which is to be inserted by Clause 4. The regulations would have to be laid before Parliament and would be subject to annulment. Therefore, there is no possibility of a pilot scheme coming along unexpectedly or unannounced.
However, referring to what will be new Section 245A(16), it appears that we may be in the somewhat curious position of having conflicting definitions of child offenders in two Acts of Parliament, with both being relevant for the purposes of prosecution. The matter will have to be considered further. On that basis, I believe that the amendment should not be pressed.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, perhaps he can explain what is meant by "pilot scheme". I have never understood the phrase. If a person agrees to be part of a pilot scheme, what are the consequences if the pilot scheme does not work out? Is that person looked upon as a volunteer helping with the administration of justice? What are the consequences of somebody being involved in a pilot scheme? I do not understand the phrase. Perhaps it is my ignorance, but I have never seen the phrase defined.
Lord Mackay of Drumadoon: I assure the Committee that we are not asking for volunteers to appear in the criminal courts. Plenty are coming along without us placing advertisements in the papers.
By "pilot scheme" I mean that in particular courts, subject to regulations, the power to impose a curfew order will be available. That disposal will be open to the court and if the individual offender consents to it he can be made subject to it. The pilot scheme will be monitored by researchers who will question sheriffs, the offenders and anybody else who has dealings with the offender, such as parents and teachers, to see whether it proves to be a successful disposal. In the light of the results of the research, the Secretary of State will decide whether to proceed with further courts having that power, or whether to depart from the proposal altogether.
Lord Macaulay of Bragar: I am sorry, I still do not understand what is the legality of the pilot scheme so far as concerns the alleged offender.
Lord Mackay of Drumadoon: The legality is that it will be a valid option open to the sentencing court rather than sending the young offender to the appropriate institution or imposing any other form of community disposal. It will be a competent disposal. It has the full force of law. The offender will be required to adhere to its conditions. If he acts in breach of it, he will be dealt with in accordance with the provisions set out in the Bill. It is not an optional extra for him. It is an alternative community disposal for the court, which it is hoped courts will feel free to use in the hope that fewer children under the age of 16 end up in institutions, in many instances with people older and more experienced in criminal ways.
Lord McCluskey: Does the Lord Advocate agree that, because the clause envisages the consent of the offender, the pilot scheme can work?—there have been many such schemes in the past in relation to intoxication and so on. However, there is just one point: I have read Section 42 along with Section 245A(16), which excludes the possibility of tagging a child offender as defined in Section 42 or Section 245A(16). The Lord Advocate has indicated that there are other people who are children for other purposes who are not covered by Section 42. Would he care to indicate whether he intends that such people should be liable to be tagged?
Lord Mackay of Drumadoon: My understanding is that they would be liable to that disposal. I have already indicated that I intend to look at those two sections together, and I understand that that is acceptable to the noble Lord, Lord Sewel.
The Earl of Mar and Kellie: Will the restriction of liberty orders be official alternatives to custody and therefore restricted to offences for which imprisonment is an alternative?
Lord Mackay of Drumadoon: They will be restricted to offences for which community-based disposals are a possibility. There are certain statutory offences where Parliament has set out that only certain disposals are available. If it does not apply to one of them, clearly it could not be imposed. For any common law offence, such as theft, malicious damage, assault, or an offence of that nature, it would be a competent disposal. It would be one of a number of alternatives to custody that should be available to the sentencing judge.
Lord Sewel: I am content that the Lord Advocate has said that he will take it away and look at it. There may be a number of people covered by this who may fall potentially under the jurisdiction of the district court. That being said, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 67A:
Page 7, line 14, leave out from ("months") to end of line 20.
The noble and learned Lord said: I make it clear that I do not intend to move the amendment, which is grouped with others, in the light of what has already taken place. Nor shall I move Amendment No. 68.
[Amendment No. 67A not moved.]
[Amendment No. 68 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 69:
Page 7, line 22, after ("shall") insert ("ascertain from the offender—

(a) where he lives and if he intends to move during the currency of the order;

(b) if he works, attends school or any other educational establishment;

(c) if he owns or rents his accommodation;

(d) if his religion or beliefs require him to be present at a defined location for a specified period of time;

and shall").
The noble Lord said: The amendment requires the court to ascertain certain information from the offender before imposing a restriction of liberty order; namely, the court should find out where the person lives and whether he intends to move during the currency of the order; whether he works, attends school or any other educational establishment; whether he owns or rents his accommodation, and whether his religion or beliefs require him to be present at a defined location for a specified period of time. All those are appropriate and necessary pieces of information for the court to have before deciding whether a restriction of liberty order is appropriate. It is designed to give a degree of clarity to the court by ensuring that such information is before the court before such an order is made.
The provisions reflect the terms of Section 12(3) of the English Criminal Justice Act 1991, which provides that the regulations of an English curfew order shall avoid any conflict with the offender's religious beliefs or any other community order, and any interference with work or school. I understand that at an earlier stage in another place the Government accepted that they wished to look in particular at the religious belief aspect in the amendment. I hope that the Lord Advocate is now in a position to go further. I beg to move.
5.15 p.m.
Lord Mackay of Drumadoon: As the noble Lord indicated, this issue arose when the Bill was before another place. There is clearly no dispute between us that the issues covered by the amendment are relevant issues for the sentencing court to have before it. In England, Section 12(3) of the Criminal Justice Act 1991, provides that certain aspects relating to an offender's life should be taken account of. Those include his religious beliefs, his employment and his educational obligations.
1998
In the context of Scottish criminal procedure, however, we doubt whether it would be sensible to set out on the face of the Bill criteria of that nature. With any list, there is a danger that the list may omit, by implication, other criteria and downgrade other criteria.
I do not offer this as any form of criticism, but that is implicit in the amendment. The amendment omits a criterion which is presently in the legislation—the need to take account of possible conflicts with other existing community orders. We believe the way forward is to leave it to the court to have regard to the circumstances. Clearly, when pilot schemes are introduced, judicial training for those judges who will be involved will be required to take account of that factor. It will need to instruct the judges as to the reports they should seek, the need for an offender's consent and the need to take account of his home circumstances, his educational responsibilities or commitments, and so forth.
Those are factors which are taken into account at the moment in dealing with other community-based disposals, such as probation and community service orders. That is a practice with which Scottish judges are conversant. I have made it clear that the present proposal is that those disposals should be available only to sheriffs or High Court judges. There is no reason to believe that, given the appropriate guidance, they will not have regard to all that is covered in the amendment, and all that Members of the Committee would wish to have covered. On the undertaking that the issue will be addressed by training, I hope that the amendment will not be pressed.
Lord Macaulay of Bragar: Will the Lord Advocate indicate what is the range of the monitoring? How far does it go? If someone lives in Perth, for example, and supports Glasgow Celtic or Glasgow Rangers and wants to go to a match on a Saturday and a monitoring device is put on by a local court in Perth, would the monitoring stretch to Ibrox Park or Parkhead? I am not being facetious, because young people like to follow sport. The offender does not have a great deal of input into the restriction imposed upon him as regards his movements. Is any technical knowledge available to the Committee relating to the range of the monitoring system? Is it 10, 20, 40, 100 miles or what?
Lord Mackay of Drumadoon: I do not claim to have an expertise in the matter, but I understand that the monitoring system is designed to ascertain when the offender is not confined to the particular place where the order requires him to be. If he must be at home between the hours of seven in the evening and seven in the morning but goes elsewhere the electronic monitoring will pick that up. However, whether he goes to Muirtown Park to watch St. Johnston, to Ibrox Park to watch whichever team plays there, or to Murrayfield to watch Scotland is neither here nor there. If he is home by seven o'clock he will be all right; if he is not, the monitoring will pick that up.
That is what the curfew order is designed to achieve. If it deprives the offender of the opportunity of travelling to away games to follow his favourite team that is part of the punishment element of the

1999
community-based disposal. As I mentioned when quoting from the English report, the offenders who were tagged accepted that there was a restriction on their liberty. It is one of the means of seeking to train them that offending behaviour is not a path they should follow.
Lord Macaulay of Bragar: That makes absolute nonsense of the tagging system. Does it mean that if someone living in Perth goes to a football match in Glasgow no harm is done so long as he is back by seven o'clock and that what he does between leaving Perth at two o'clock to go to Ibrox Park, or wherever, and returning home does not matter? He could commit 10 offences, but he will not be captured by the tag.
Lord Mackay of Drumadoon: I do not know whether it is sensible to respond to each point one by one. However, the whole purpose of the legislation is to give the court power to vary the conditions. If a solicitor sought to explain to a Perth sheriff that it was absolutely essential that his client travelled to Ibrox Park every second week he might be able to obtain such a dispensation so that he will be home in time.
It is not proposed that the curfew order should confine the offender to the house 24 hours a day. It is a community-based disposal. The offender will at some time be out in the community, it is hoped, behaving himself wherever he may live. For the rest of the time he will be required to stay in a fixed place, presumably his home. It is hoped that the community-based disposal will encourage the offender to behave himself. There is no guarantee that he will do so, as I made clear earlier.
I hope that that assurance will satisfy the noble Lord's inquiry. If it will assist, I shall arrange for him to be sent a copy of the Home Office research report, which I am sure is available to some of his colleagues. That may answer some of the technical questions which I am currently not qualified to answer.
The Earl of Mar and Kellie: It may be helpful to suggest that the devices are monitoring and not tracking devices. The offender will be tied electronically to close proximity to the machine and the machine will recognise the fact that the person has left. Will restriction of liberty orders be orders for which it is mandatory to produce a social report and, I presume, a report from the monitoring company or contractor about the person's suitability?
Lord Mackay of Drumadoon: I understand that the orders are not mandatory because there is a concern about people having different responsibilities for young offenders. However, I shall check that matter and before we leave the topic confirm whether my understanding is correct.
Lord Hughes: Let us suppose that a restriction order is made in respect of a child under the age of 16 and he or she pays no attention to it, knowing the consequences. Presumably, a person to whom the order is applied will not be a first offender but someone who, because of previous conduct, is regarded as suitable. If he
2000
pays no attention to the order he may be subject to a fine not exceeding level 3. The chances of a 12 or 13 year-old child having the resources to pay a fine are limited. So does the order transfer to the parents? Alternatively, the court may vary the restriction order. Whether it is increased or reduced, the child is unlikely to pay any attention to the variation. Thirdly, the order can be revoked. The child will be delighted at that: it is an invitation to pay no attention to the order.
What exactly is the merit of the proposal if it will be so difficult to enforce a penalty? I know that the alternative is that the child should be shackled, as has been indicated. That does not stop him breaking the order but proves that at any particular time he is not obeying it. The Government appear to be providing for a situation whereby the difficult people to whom the order will be applied are not affected by it.
Lord Mackay of Drumadoon: I regret that the noble Lord takes such a pessimistic view of the proposal. It does not accord with experience in England. Not every young offender benefits as much as we would wish from supervision requirements, probation orders, community service orders and the like, but many do. Contrary to what the noble Lord said, if an offender breached a restriction of liberty order and was brought back before the court, the order was increased and the conditions tightened up, and he still failed to obey it, there can be little doubt that if he came before the court again it would take a much harder view as to whether it was appropriate to have an alternative to custody disposal. That could be made clear to him.
My experience is that from time to time young offenders take account of advice that they receive from social workers and others with whom they are in contact. If we adopt a pessimistic attitude to working with young offenders we will never succeed. We cannot expect naïvely to succeed in every case, but I believe that this is a valid proposal and it is worth trying. The whole purpose of pilot schemes is to examine issues such as the noble Lord has raised in order to see, for example, whether it is necessary to amend Section 245F(2) to give the court alternative powers to "punish" a young offender who did not abide by a restriction of liberty order. I hope that that does not prove to be necessary, but if it is an option which is thrown up by the pilot scheme as worth considering no doubt Parliament and the government of the day will do so.
I invite the noble Lord, who has long experience of public life and the responsibility of those who have to deal with young offenders, to be a wee bit more hopeful that this will help in some cases. That is the basis on which it is being brought forward.
Lord Hughes: I thank the noble and learned Lord for that answer. Summarising it, we go ahead and hope for the best.
5.30 p.m.
Lord Sewel: If my memory serves me correctly, in the earlier part of this debate the noble and learned Lord the Lord Advocate made a number of comments

2001
which were helpful. In fact, on a couple of issues, we have some helpful pieces of clarification of the Government's thinking.
I realise that words in English do not necessarily mean the same in statute as they mean in ordinary conversation. But if I take it that training is fairly close to guidance, then I am happy to rest with what the noble and learned Lord the Lord Advocate has said at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sewel Lord Sewel moved Amendment No. 70:
Page 7, line 28, leave out ("and").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 71, which is the substantive amendment. This amendment imposes on the court an additional requirement for informing the offender of the need to take legal advice before agreeing to a restriction order.
Lord Mackay of Drumadoon: Perhaps it may save the time of the Committee if I indicate, without giving any definite commitment, that the Government would like to look further at these amendments and consult on them. That may assist the noble Lord.
Lord Sewel: It is almost national assistance day. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 71 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 72:
Page 7, line 34, after ("agrees") insert ("in writing").
The noble Lord said: This amendment seeks to ensure that agreement to a restriction of liberty order should be made in writing. It is really to remove any doubt. At the end of the case, when the offender is asked whether he agrees to a restriction order, there is a hubbub and degree of noise and mumbling well known to Members of the Committee and it may well be that the precise words are not understood. This provision seeks to promote clarity and avoid ambiguity as to the offender's position. I beg to move.
Lord Mackay of Drumadoon: As the noble Lord will be aware, it is common practice in Scottish criminal procedure to require an offender's consent to a community-based disposal before it is imposed on him. However, none of those orders currently requires that to be done in writing. I am unaware of any experience which suggests that there is a need for the offender to agree in writing to probation or to a community service order. After such a sentence is imposed, the appropriate official makes contact with the offender and the necessary arrangements are set in place for compliance with that order. So it would be with restriction of liberty orders. In any of those instances, if the offender did not comply with the official who had responsibility, that would no doubt be reported back to the court. We see no need to distinguish between those orders and community service and probation orders. However, in the spirit of co-operation which I hope is breaking out, if the noble Lord has any
2002
evidence which is contrary to my understanding of practice, I should be happy to look at that before Report stage.
The Earl of Mar and Kellie: I am concerned about that, because probation and community service orders are always well explained beforehand. They cannot be imposed unless a social work report has been produced which recommends such a disposal. If, as I think the noble and learned Lord has told us, a social work report would not be required before imposing a restriction of liberty order, it is perhaps more important that the offender should agree in writing at the time.
Lord Sewel: Having heard the noble and learned Lord's reply, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sewel Lord Sewel moved Amendment No. 73:
Page 8. line 3, after ("information") insert ("or representations").
The noble Lord said: This amendment allows the court to hear representations by those affected by the restriction of liberty orders. The court would be required, in making a restriction of liberty order, to obtain information about the locality to which the order would apply and the attitude of people likely to be affected by the enforced presence of the offender.
The provisions of new Section 245A do not presently allow the offender's neighbours to make direct representations to the court. That is the important difference. This amendment will enable such representations to be made to the court so that the neighbour can be properly heard.
Those of us who have perhaps had some experience of what are often referred to as anti-social tenants will be fully aware of the havoc which can be created for neighbours if there is a particularly difficult case of an anti-social tenant and his family.
If I were a neighbour of some of the families of whom I have had direct experience, I should not take it kindly that the court had imposed a restriction of liberty order on members of that family, because it would ensure that they would be at home even more and that might make life totally intolerable.
There is a difficulty that we shall be imposing upon the neighbours a situation almost amounting to hell worse confounded. If that is a possibility, those people should have the opportunity to make direct representations to the court as to how they are likely to be affected by the imposition of a restriction of liberty order. I beg to move.
Baroness Carnegy of Lour: I believe that this amendment is proposed after discussion with the Law Society of Scotland. But I am rather surprised that it expresses that view. Perhaps the noble Lord, Lord Sewel, will agree that neighbours can often cause problems. There are often families who have difficulties with their children. But to set up a legal process on the face of the Bill whereby people can object because they live next door to a child subject to a restriction of liberty order is

2003
going a bit far and is not entirely imaginative. Surely that should be part of the informal process of finding out what could be the effect of an order on a particular family.
Lord Sewel: I ask the noble Baroness to reflect on that. If she were the neighbour of a troublesome and disruptive child who was going to be confined to the neighbouring house, I wonder how she would feel if she had not had an opportunity to make representations to the people making the order which would affect her. I believe that she would be rather disappointed.
Lord Monkswell: I support my noble friend's amendment. It may be useful to point out that if neighbours have a right, following acceptance of this amendment, to make representations, it is quite possible that information which would not necessarily be before the court would then be put before it. If the neighbours who have been subjected to difficulties by their neighbours have the ability to make direct representations to the court, it is quite likely that the court will then be privy to information which it would not otherwise have. Therefore, bearing in mind the arguments of my noble friend, I believe that that is added cause for support.
Lord Hope of Craighead: It would be of some assistance if the noble and learned Lord the Lord Advocate could say more about the Government's thinking as to how this provision would work. The onus of obtaining the information is placed on the court and not on the prosecutor. Presumably, the court would have to have some means of obtaining the information through a report or some mechanism of that kind. It is not immediately clear to me how the court would exercise its functions. Therefore, some guidance from the noble and learned Lord the Lord Advocate might help to reassure those who support the amendment. I hope that some guidance to that effect will be given either today, or perhaps at a later stage.
Lord Mackay of Drumadoon: As the noble and learned Lord has just observed, the proposed subsection (7) of the new Section 245A to the 1995 Act would place an obligation on the court to obtain certain information. It says that,
"the court shall obtain and consider information about that place"—
that is, the place where the offender is required to remain—
"or those places, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender".
As I believe I indicated earlier, my understanding is that it is not mandatory to obtain a social inquiry report. That is clearly one way in which information could be obtained, although there may be others. Whether a court would wish to appoint its own reporter to investigate the matter or whether it would be content for the local authority to do so is a practical issue which will need to be addressed before a pilot scheme becomes operational.
In response to my noble friend Lady Carnegy of Lour, I should point out that the view is taken that it would be wrong to set out on the face of the Bill a procedure by which representations on behalf of individuals who might
2004
be affected should be placed before the court. On the contrary, the way forward is to implement the provisions of subsection (7) by placing an onus on the court to obtain such information as it deems appropriate.
The concern about allowing representations of any kind is that that would establish what we believe to be an undesirable precedent; namely, that someone who was not the prosecutor or the accused would have a right to make representations to the court before sentence was imposed. I am unaware of any precedent for that occurring up until now and we would not want, as part of introducing these provisions, to establish one.
One could imagine a number of people who might seek to qualify such a right in other cases. The most obvious of course is the victim of a crime but, equally, they might be relatives of the victim or members of the public who are involved in other cases where curfew orders are not in question. Perhaps I may take the case of a bad neighbour committing breaches of the peace, say, once a week. One could imagine that people would love to go along to the local court and tell the sheriff on a face-to-face basis how that repeat offender was affecting their life. Up until now, we have not considered that to be the right way forward and we would not wish to alter that principle.
On the other hand, the Bill makes it quite clear that the court has to be satisfied as to,
"the attitude of persons likely to be affected by the enforced presence there of the offender".
That matter will need to be addressed before a pilot scheme can be set up and start operating. The initial solution is obviously a social inquiry report prepared by social workers. However, as social workers are not to be involved in the enforcement of the restriction of liberty order, that may not be the only solution.
Again, there is nothing between us as to the desirability of having regard to the interests of those covered by the amendment. However, there is a matter of principle between us as to the best way to achieve the desired aim. Having regard to the existence of other provisions in the 1995 Act which enable the court to obtain reports in a variety of circumstances and appoint reporters to find out such information as is necessary before sentence is imposed, I hope that the amendment will not be pressed.
5.45 p.m.
Lord McCluskey: As I listened to the debate I became rather more disturbed than I was when it started. The idea that the court can somehow use social workers and send them round to consult the neighbours, the family and, indeed, the possible victims or past victims of persons who are to be the subject of such orders, appears to me to be likely to impose an extraordinary burden on social work departments.
I am very worried about the Explanatory and Financial Memorandum to the Bill and its failure to address the financial and manpower consequences of the provisions. For example, on page ix of the memorandum, no element is included in the first complete paragraph for the cost of using social workers to make inquiries among the neighbours, possible victims and family of offenders. When one looks specifically at the section headed Effect of the Bill on public service manpower, which can be

2005
found two-thirds of the way down that page, one sees that there is no provision whatever for an increase in social workers. There is to be an increase in Crown Office staff and an increase in sheriffs, prison staff, and so on, but there is no mention of social workers. I should think social workers will be very disturbed at the thought that, in addition to the inquiries that they already have to make and which are very burdensome, they will have to go out and start investigating in the manner suggested by the noble and learned Lord the Lord Advocate. Perhaps the noble and learned Lord will give more careful consideration to the provisions of subsection (7).
Lord Mackay of Drumadoon: I am happy to do so but the concerns expressed by the noble and learned Lord represent precisely the sort of practical issue that a pilot scheme would look at. The Home Office report to which I referred contains a chapter which deals with the relative costs of electronic monitoring, probation, community service and custody. Indeed, that is one of the practical issues which will be considered. I need not remind the noble and learned Lord, with his expertise in such matters, of the high cost of sending young offenders to custody. Obviously, if there is a cost involved in getting information to the court, that will have to be fed into the equation. But the experience from England—and I accept that that cannot be followed blindly—shows that the costs of proceeding by this route are cheaper than sending young offenders to custody.
So far as concerns who obtains such information and how it is obtained, that is a practical issue which will need to be discussed. For example, it would be a very good topic to put before the Criminal Justice Forum, where those involved in all aspects of court work are currently looking at practical issues. If the social work department considers that it would not be an appropriate role for it to play, other approaches will need to be explored.
I venture to suggest that these are practical issues which cannot be addressed in advance; they are costings which would indeed be estimates if they were calculated in advance of bringing legislation before Parliament. They are precisely the issues which a closely monitored pilot scheme would address. As the noble and learned Lord knows, there are already sections in the 1995 Act—and I have been reminded of Sections 201 and 203—which give the court certain powers to obtain reports before passing on to the question of sentence. The system has worked perfectly successfully in dealing with probation orders and community service orders. Therefore, there is no reason why it could not work equally successfully with this new form of disposal.
Lord Sewel: The noble and learned Lord the Lord Advocate has a fear about creating a new precedent in dealing with the problem. I think this is the difficulty when we are dealing with a totally new type of disposal which at its heart carries with it the prospect that the social burden of the disposal is falling on a third party. When that is the case, surely it is right and proper that that third party who is
2006
suffering the likely possibility of a disruptive element being contained, to a large extent, within his or her own environment should be given the opportunity of making representations. The more this clause has progressed, the more we are seeing some of the problems that arise from hastily drafted legislation. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 74 to 76 not moved.]
Lord McCluskeymoved Amendment No. 77:
Page 8, leave out lines 43 to 50.
The noble and learned Lord said: I link this amendment with Amendment No. 79. The amendment arises from the report of the Select Committee on Delegated Powers and Deregulation which points out at page 5 that there is a Henry VIII power in Clause 4—the clause to which these amendments are directed. The report further states:
"There is some safeguard against misuse of the power … the offender's consent is required … Nevertheless, in view of the potential impact of this power on the liberty of the subject, the Committee considers that affirmative procedure would be the appropriate form of parliamentary control".
When this matter was dealt with—I think it was the same matter—in Clause 31 of the Crime (Sentences) Bill on 20th February, the noble Baroness, Lady Blatch, accepted this and moved an amendment to this effect. I refer to column 872 of Hansard.
I have the impression that the noble and learned Lord the Lord Advocate will meet my amendment by his amendment. If he assures me that his amendment will achieve what I propose, I should be happy to withdraw my amendment and allow the Government to move their amendment. I beg to move.
Lord Mackay of Drumadoon: I hope to be in a position to satisfy the Committee, and in particular the noble and learned Lord, Lord McCluskey, that my Amendment No. 78 will meet the concern which he expressed and will accord with the advice given to this Committee by the Delegated Powers Scrutiny Committee of your Lordships' House. That committee, in reporting on this Bill, suggested that it would be preferable for this power to be exercised by the affirmative resolution procedure.
In considering that suggestion, the Government took account of existing procedures in Scotland on other community disposals. For example, legislation on community service orders and supervised attendance orders requires the affirmative resolution procedure to be followed if the Secretary of State exercises his power to vary the time limits which apply to them. Our amendment fits in with that approach. The amendments of the noble and learned Lord would go somewhat further than that in that they would require primary legislation to change the time limits. In so far as that was not something that the Delegated Powers Scrutiny Committee thought was appropriate,

2007
I hope the noble and learned Lord will be satisfied that Amendment No. 78 meets any legitimate concern on the procedure that should be followed.
Lord McCluskey: I am perfectly satisfied with that answer. I did not wish to go further than the recommendation of the Delegated Powers Scrutiny Committee. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 78:
Page 9, line 2, leave out from ("instrument") to end of line 3 and insert—
("( ) A statutory instrument containing regulations made under subsection (10) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
( ) No regulations shall be made under subsection (14) above unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.").
The noble and learned Lord said: This was spoken to with the previous amendment. I beg to move.
The Deputy Chairman of Committees (Baroness Serota): I should point out that if Amendment No. 78 is agreed to, I cannot call Amendment No. 79.
On Question, amendment agreed to.
[Amendments Nos. 79 and 79A not moved.]
The Deputy Chairman of Committees: If Amendment No. 80 is agreed to, I cannot call Amendments Nos. 81 and 82.
Lord McCluskeymoved Amendment No. 80:
Page 9, leave out lines 27 to 46.
The noble and learned Lord said: This amendment relates to the provision which is to be inserted in the 1995 Act as subsection (1) of new Section 245C. However, since I put this amendment down I have read the proceedings on the Crime (Sentences) Bill for England and I am satisfied that this may prove to be a useful alternative to expensive custody in our already overcrowded prisons. I thought of withdrawing it but left it in place in order to seek a little further information.
I have questions I should like to hear answers to. I am sure the noble and learned Lord has them to hand. Why do Her Majesty's Government want to privatise this type of arrangement? Why should there be private arrangements, because normally the supervision of people, particularly of children, is carried out by probation officers, social workers and people of that kind who are employed in the public service? What is the Government's thinking in that they want to make "contractual arrangements" of the kind mentioned at line 28 on page 9? I take it that pilot schemes would cover the possibility of such contractual arrangements.
2008
I should like a little more information—if there is information—about where the pilot schemes are to be. I was astonished to hear the noble and learned Lord the Lord Advocate say that this idea surfaced in October. It is a long time since I had anything to do with politics, but I have a vague notion that party conferences are held in October. I wondered whether the surfacing of this idea owed something to that circumstance. Perhaps it does not. In any event, has there been time since that particular season of the year for anyone to decide where these pilot schemes are to be held? If the pilot schemes are to be the subject of a report, will we have a chance to study that report? I beg to move.
Lord Mackay of Drumadoon: I shall answer at least some of the questions posed by the noble and learned Lord. This is not a question of privatisation as such because of course the disposal is not yet available. What has happened in England is that private companies which have the necessary expertise as regards the relevant equipment have submitted tenders for contractual arrangements as set out in the paper that has already been mentioned. The Government considered that, as the monitoring depended upon those companies' technology, that was the way forward rather than allocating the supervision to local authority officials, the probation service or any other government body, whether local or central.
No decision has been reached as to where the pilots will take place. All that has been decided is that initially at least there should be no pilot in any district court. That is a matter which will require to be discussed with sheriff principals, the sheriffs' association and others, and no doubt with the procurator fiscal service itself, before any decision is reached. The noble and learned Lord asked whether this idea emerged at a party conference. Not having been present at any party's conference in October I cannot say whether it was mentioned there. However, if the noble and learned Lord wishes me to pursue this matter, I should be happy to do so.
I have little doubt that long before any pilot is up and running—in terms of a regulation made by the Secretary of State—papers relating to it will be made public and will be made available for those who are interested in commenting upon them. One suspects that the consultation paper will address some of the practical issues, including costs, which would require to be looked at when the projects are running. I hope the noble and learned Lord is satisfied with that assurance and will not insist on this amendment.
Lord McCluskey: In the light of that response, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Sewel Lord Sewel moved Amendment No. 81:
Page 9, line 39, at end insert—
("( ) A court shall not make a restriction of liberty order which is to be monitored remotely unless the court
(a) has been notified by the Secretary of State that remote monitoring arrangements are available in the areas in

2009
which the place proposed to be specified in that order is situated; and
(b) is satisfied that the necessary provisions can be made under those arrangements.").
The noble Lord said: The amendment provides a trigger for the courts to begin using remote monitoring by ensuring that the Secretary of State notifies the court of the arrangements and that the court is happy with the arrangements.
At present the Bill lacks any mechanism for the Secretary of State to inform the court that remote monitoring contracts have been concluded and the system is ready to proceed. The amendment reflects Section 13 of the Criminal Justice Act 1991, and remedies that omission. I beg to move.
The Earl of Mar and Kellie: Perhaps I am overly concerned, but I had thought that the restriction of liberty order allowed both human monitoring and remote monitoring. I am forming the opinion that it refers only to remote monitoring. Can the noble and learned Lord the Lord Advocate please sort out my thinking?
Lord Mackay of Drumadoon: I hope that I can sort out the noble Earl's thinking by referring to the provisions of new Sections 245B and 245C which cover both types of monitoring.
Our position is that the amendment is unnecessary. The issue arose when the Bill was before another place at Report stage when certain concerns were expressed. Perhaps I may draw the Committee's attention to new Section 245A(10). Members of the Committee will see what regulations must prescribe; the particular courts which may make the orders; what method or methods of monitoring compliance with such orders may be specified in any such order by any such court; and the class or classes of offenders concerned.
These regulations have to be brought before the House. I trust, therefore, that no Member of the Committee would have concern that the regulations would be brought into force without the necessary procedures and equipment for monitoring already being in place.
Subsection (13) of new Section 245A states that,
"A court shall not make a restriction of liberty order which requires an offender to be in or, as the case may be, not to be in, a particular place or places unless it is satisfied that his compliance with that requirement can be monitored".
The means of monitoring can be under either new Section 245B or 245C. I believe that the concerns, which are genuine, are already met in the somewhat complicated provisions of the Bill.
Lord Sewel: That teaches me to try to make something simple. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 82 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 83:
Page 11, line 5. leave out from ("so") to end of line 11 and insert ("—
(a) vary the order by—

(i) amending or deleting any of its requirements;

(ii) inserting further requirements; or

(iii) subject to subsection (3) or, as the case may be, (4) of section 245A of this Act, increasing the period for which the order has to run; or

(b) revoke the order.").
The noble and learned Lord said: In moving the amendment, I speak also to Amendments Nos. 84 to 87. These are technical drafting amendments. The current draft of prospective Section 245E(2) enables a restriction of liberty order to be revoked but does so on the basis that such revocation is a form of variation. As a matter of language, that cannot be correct. An order which is varied is kept in force, albeit subject to the variation. An order which is revoked is brought to an end. I hope that, on the basis of that explanation, Members of the Committee will be persuaded that the amendment seeks to correct the most technical of flaws. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 84 to 87:
Page 11, line 14, leave out (", (b) or (c)").
Page 11, line 21, leave out ("(2)(d)") and insert ("(2)(b)").
Page 12, line 5, leave out ("paragraphs (a) to (c)") and insert ("paragraph (a)").
Page 12, line 8, leave out ("245E(2)(d)") and insert ("245E(2)(b)").
The noble and learned Lord said: I spoke to these amendments with Amendment No. 83. I beg to move.
On Question, amendments agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 87A:
Page 12, line 36, after ("offender") insert ("at least 28 days").
The noble Lord said: With the consent of the Committee, perhaps I may move Amendment No. 87A and speak to Amendments Nos. 87B and 87C. The package of amendments is self-explanatory and gives the offender a chance to counter any evidential value of matters being placed before the court, and of making sure that there is no mistake at the end of the day. The provision allows the offender to receive a notice within 28 days, and to give a counter notice. If no counter notice is served, the evidential value will be restored.
Amendment No. 87C states that,
"the offender may at any stage within 7 days"—
—that should probably read, "not later than 7 days"—
"prior to the commencement of the trial serve upon the prosecutor a counter notice intimating his intention to challenge the contents of the statement or the certificate or both".
I hope that the noble and learned Lord the Lord Advocate will appreciate that this is a matter of some importance to the offender and puts some balance into the equation between the prosecutor and the offender. I beg to move.
Lord Mackay of Drumadoon: The Government feel unable to accept these amendments, which would provide for a period of notice of 28 days for service of a statement and certificate of the whereabouts of an offender and for the provision of a counter notice.
Members of the Committee will be aware that there is already provision in the new Section 245H for the court to adjourn if it considers that there has been insufficient notice given to the offender. There is in our view no need to specify a time for that notice to be given.
As to the counter notice procedure, it is important to understand that the effect of new Section 245H is to render the statement and certificate to be admissible if the service procedure is followed and when produced they will be sufficient evidence of the facts set out in them. However, the offender will still be able to dispute those facts and to do so he will have to lead evidence that his whereabouts were other than as stated in the documents produced. If that evidence is credible, is accepted by the court, and shows to the satisfaction of the court that the offender was elsewhere, the presumption of sufficiency will be overcome. In these circumstances, we do not consider that the counter procedure is necessary or desirable. I hope, therefore, that these amendments will not be pressed.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord the Lord Advocate for his explanation. However, I must express a degree of surprise. We all seek to cut costs. A most expensive issue in the courts is a trial which is unnecessarily adjourned. If there were a proper structure of notice and counter notice prior to the trial I should have thought that that would avoid adjournment. Otherwise legal aid, court costs, and many other costs come into play.
I am surprised that the noble and learned Lord is not prepared at least to take away these amendments. They have been put down at a very late hour. Rather than rejecting them out of hand, will the noble and learned Lord consider whether the proposals, perhaps subject to amendment of some kind, might expedite the system of justice in Scotland?
Lord Mackay of Drumadoon: The issue that would be before the court is precisely the issue on which the counter notice would focus, but it would be impossible for it to be resolved on paper. That is the sole issue that the court would be required to address. However, I will certainly look again at what has been said in support of these amendments. I do not offer any commitment to change my mind but, with the assistance of my officials, I will study the noble Lord's remarks in moving the amendment.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that response. I shall not call it a
2012
concession; I would never ask the Lord Advocate to change his mind. He says that he will take the amendments away and think about them, which is a slightly different matter. On that basis, I beg leave to withdraw Amendment No. 87A.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I should point out to the Committee a printer's error in the Marshalled List. Amendment No. 87B should read, "Page 12, line 37, after ('hearing') insert".
[Amendments. Nos. 87B and 87C not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 88:
Leave out Clause 4 and insert the following new clause—
RESTRICTION AND MONITORING OF LIBERTY ORDERS
(" . After section 229 of the 1995 Act there shall be inserted the following sections—
"Restriction of liberty orders.
229A—(l) Where a person of 16 years of age or more is convicted of an offence (other than an offence the sentence for which is fixed by law) the court, if it is of opinion that it is the most appropriate method of disposal, may make as an additional requirement of a probation order an order under this section (in this Act referred to as a "restriction of liberty order") in respect of him; and in this section and sections 229B to 229C of this Act any reference to an "offender" is a reference to a person in respect of whom an order has been made under this subsection.
(2) A restriction of liberty order may restrict the offender's movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provisions—

(a) requiring the offender to be in such place as may be specified for such period or periods in each day or week as may be specified;

(b) requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified;

but the court may not, under paragraph (a) above, require the offender to be in any place or places for a period or periods totalling more than 12 hours in any one day.
(3) The clerk of the court by which a restriction of liberty order is made shall in addition to section 228(6)(a) above—

(a) cause a copy of the order to be sent to the person who is to monitor the offender's compliance with the order; and

(b) cause a copy of the order to be given to the offender or sent to him by registered post or by the recorded delivery service, and an acknowledgement or certificate of delivery of a letter containing such copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgement or certificate.

(4) Before making a restriction of liberty order which will require the offender to remain in a specified place or places the court shall obtain and consider information about that place or those places, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender.
(5) The Secretary of State may by regulations prescribe—

(a) which courts, or class or classes of courts, may make restriction of liberty orders; and

(b) what method or methods of monitoring compliance with such orders may be specified in any such order by any such court.

2013
and different provision may be made in relation to the matters mentioned in paragraphs (a) and (b) above in relation to different courts or classes of court.

(6) The Secretary of State may by regulations vary the periods mentioned in subsection (2) above.
(7) A restriction of liberty order may be made for any period up to 12 months.
(8) Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Monitoring of restriction of liberty orders.
229B—(1) Where the Secretary of State, in regulations made under section 229A(5) of this Act, empowers a court or a class of court to make restriction of liberty orders he shall notify the court or each of the courts concerned of the name of the person who is to be designated by that court for the purpose of monitoring an offender's compliance with any such order.
(2) A court which makes a restriction of liberty order in respect of an offender shall name in the order the person who is to monitor the offender's compliance with it.
(3) Where the Secretary of State changes the person notified by him under subsection (1) above, any court which has made a restriction of liberty order shall vary the order accordingly and shall notify the variation to the offender.
Remote monitoring of restriction of liberty orders.
229C—(1) The Secretary of State may make such arrangements, including contractual arrangements, as he considers appropriate with such persons, whether legal or natural, as he thinks fit for the remote monitoring of the compliance of offenders with restriction of liberty orders, and different arrangements may be made in relation to different areas or different forms of remote monitoring.
(2) A court making a restriction of liberty order which is to be monitored remotely may include in the order a requirement that the offender shall, either continuously or for such periods as may be specified, wear or carry a device for the purpose of enabling the remote monitoring of his compliance with the order to be carried out.
(3) The Secretary of State shall by regulations specify devices which may be used for the purpose of remotely monitoring the compliance by an offender with the requirements of a restriction of liberty order.
(4) Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.".").
The noble Earl said: This amendment and the two consequential amendments, Amendments Nos. 156 and 157, represent a large number of words on the Marshalled List. They are aimed at completely replacing the Bill's approach to the curfewing of offenders, especially with regard to "stand alone" restriction of liberty orders. This amendment is aimed at replacing the provision with a new clause. The new clause allows and encourages the use of curfewing within a probation order. The restriction of liberty would be dealt with as an extra condition of a probation order.
I suspect that the Committee has come to know my view on stand-alone restriction of liberty orders. I see them as a very inferior product when set alongside a system of advice, guidance and conditional control as expressed in a probation order. The advice, guidance, planning of time, especially the planning of leisure, and counselling that are built into the amendment are the strengths of the new approach that I suggest to the curfewing of offenders. It confirms that the offender is positively expected to move on towards a more mature and social position and not to stay static in terms of personal development.
The amendment allows both human and remote monitoring. At this point, I thank the noble and learned Lord the Lord Advocate for straightening out my thinking at my own request in reply to an earlier amendment. The merit of each form of monitoring would be contained in the social work report to the court, which would be a necessary precursor to a probation order. I beg to move.
Lord Sewel: During our examination of restriction of liberty orders and their monitoring, there was a request to look at the research on how such orders and devices operate elsewhere and the factors that lead to a positive, as opposed to a negative, outcome. My understanding was that the very heavy weight of research comes down in favour of linking a restriction of liberty order with some form of direct positive intervention by way of a supervision requirement.
If the supervision is not there, there is a danger that the restriction of liberty order merely becomes a passive, negative type of disposal; there is no dynamism to require or encourage the offender to change his or her behaviour patterns and to mend his or her ways. At least linking the restriction of liberty—"You shall not go there. You shall not do that."—which is the passive, negative aspect of the disposal, with a more positive one requiring the offender to undergo some form of supervision should dramatically increase the possibility that in the end this disposal will be beneficial. It would certainly be more beneficial than simply letting such an order stand alone.
6.15 p.m.
Lord Mackay of Drumadoon: The effect of the noble Earl's amendments would be to present us with an entirely new Clause 4. Although the proposal has certain similarities to, and certain differences from, the existing clause, the two issues of importance are these. First, it would deny the courts the ability to make restriction of liberty orders for young offenders. Secondly—this is a new and important matter—it would deny the courts the ability to make free-standing restriction of liberty orders requiring such orders, whenever they are made, to be part of a probation order.
Having dealt earlier with the issue of child offenders, it is the second issue which we are now required to examine. Our proposals would give the court the option of either dealing with an offender by way of a restriction of liberty order alone or by making one in tandem with the making of a probation order. By withdrawing the first of those two options, the noble Earl's amendments would prevent the court from making what might be referred to as a free-standing restriction of liberty order. We believe that it would be hard to justify removing that option.
In addressing this issue the Committee may wish to be informed of the experience of the pilot schemes in England to which I have already referred. It has transpired that the courts in the three areas that have been using this disposal and which have been monitored have made relatively extensive use of the option which the amendment would seek to deny to the Scottish courts. One can only assume that the courts in England

2015
have used the option because in having regard to particular circumstances of the cases concerned they thought it the most appropriate option to follow. Approaching, as we are, pilot schemes in Scotland, we believe that it would be sensible to leave the options to the Scottish courts to see whether this option was followed or whether the option of having both the restriction of liberty orders and probation orders was the one that was preferred. We do not rule out the possibility that at the conclusion of the pilot orders the way forward would be to insist that they should be in tandem and to require that in every case.
There are certain practical issues involved. I have already made reference to one of them. Where electronic monitoring is to be used, the responsibility for enforcing it would rest with a person nominated by the Secretary of State. If a restriction of liberty order is to run in tandem with a probation order, there would have to be a social work officer involved as well. He would be unable to do both, and there may be some scope for duplication of effort and additional expense which would not be productive in a particular case. As I say, we do not have a closed mind on the issue. We believe that these options should be examined. However, we firmly believe that it would be a mistake not to examine each and every one of them separately. On that basis, having an open mind as always, I hope that the amendments will be withdrawn.
The Earl of Mar and Kellie: I am grateful for that answer. I certainly believe that it will be very interesting to see how the pilot projects proceed. I hope that they will be genuine pilots; that is, that the scheme will not be proceeded with until the pilots have been properly evaluated. I hope that all four options—that is, human and remote monitoring with and outwith a probation order—will all be tried.
I remain unconvinced, but willing to be convinced, about stand-alone or, to use the noble and learned Lord's expression, free-standing restriction of liberty orders. I am interested to see how those will work out. I am certain that linked probation orders are more likely to be positive. We must remember that imprisonment is a static process in personal development terms. I do not want this alternative to imprisonment to end up being similarly static. It is important that the offender be encouraged to move on.
However, we have had a debate about this and I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Disposal in cases of mentally disordered offenders]:
Lord McCluskey Lord McCluskey moved Amendment No. 89:
Page 13, line 7, leave out from ("may") to ("by") in line 8.
The noble and learned Lord said: This amendment relates to certain words which appear at lines 7 to 8 on page 13. Members of the Committee will see that the provision in which they appear is to the effect that where a person is convicted on indictment in court of an
2016
offence punishable by imprisonment, the court may, in addition to any sentence of imprisonment, by a direction authorise his admission to a hospital. Subsection (3) provides that a hospital direction shall not be made unless the court is satisfied, upon medical evidence, that the grounds set out in Section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the offender.
Section 17(1)(a) specifies the grounds. The first is that the person is suffering from a mental disorder of a certain character. It is envisaged that the mental disorder may be a persistent one which is likely to deteriorate. The other mental disorder envisaged is a mental handicap, comprising mental impairment or severe mental impairment.
Will the noble and learned Lord the Lord Advocate explain whether it is envisaged that, if the court is satisfied that the grounds contained in Section 17(1) of the 1984 Act apply, a sentence of imprisonment will be passed at the same time? I have no experience of both passing a sentence of imprisonment and making an order of this character. I should like the Government to explain how this provision is expected to work and how the sentence of imprisonment and the hospital direction are intended to be combined. No doubt in due course I shall be able to ask the Government to explain how this ties in with the early release provisions but that is a matter for another occasion. In the meantime, I beg to move.
Lord Mackay of Drumadoon: This is a technical but very important field. The effect of the amendment would be to cut the link between the new hospital direction and the sentence of imprisonment.
In bringing forward the proposals for a hospital direction, which was a disposal discussed in Chapter 13 of the White Paper, it has always been made clear by the Government that the hospital direction was never intended as a stand-alone disposal; it was in line with the flexibility that I have discussed earlier to add other disposals to the court than those which currently exist.
As the noble and learned Lord will be well aware, the 1995 Act contains a number of provisions for dealing with prisoners who are suffering from certain categories of mental illness or mental disorder. Sometimes that results in the trial not taking place because the accused is held to be unfit to plead and to stand trial; sometimes it results in the accused standing trial and being convicted and a hospital order then being imposed.
Where an accused man has been convicted, the alternative at the moment is between prison and a hospital order. This clause provides another option in serious cases where an accused is indicted and liable to a term of imprisonment because of the gravity of the crime which has been committed but who is suffering from one of the conditions set out in Section 17(1) of the Mental Health (Scotland) Act 1984.
As I understand the question which the noble and learned Lord posed, it is addressed to the issue of whether the mental handicap set out in Section 17(1)(a)(ii)—as opposed to that set out in Section 17(1)(a)(i)—is such as to make it inappropriate

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for the accused man to stand trial. If I have misunderstood the question, it will no doubt be put to me again.
I emphasise that this clause is intended to add an option; it is not intended to interfere in any way with the options that already exist. The amendment proposed would change the character of the option to the extent that it is not considered a sensible route to follow. There are prisoners suffering from a mental disorder whose treatment may be such that they recover within a relatively short period of time, and certainly within a period of time shorter than that for which prison would be appropriate if they did not suffer from any form of mental illness. Clearly that is less likely to be the position in a case to which Section 17(1)(a)(ii)—which deals with mental handicap or mental impairment—applies, but one cannot exclude the possibility that a spell in a hospital might bring about some improvement to the extent that no further treatment would be desirable and yet prison would be appropriate. I suspect that that is likely to happen in very few cases indeed but one cannot exclude the possibility.
I trust that that, together with what is set out in Chapter 13 of the White Paper, explains what this proposal is about. I hope that, on that understanding, and with that explanation, the noble Lord will accept that his amendment would serve to frustrate the objective behind this new disposal and will not press it.
Lord McCluskey: The noble and learned Lord has referred to what I think is contained in paragraph 13.5 of the White Paper. That reads:
"This new option would enable the courts to impose a prison sentence, either determinate or life, but also order that the offender be initially detained in hospital for the receipt of the treatment needed for their mental disorder".
It appears that the court will say, "You will go to prison for four years", let us say, "but you will not begin that sentence until you have been in hospital". I am not sure whether the four years start to run when the person goes into hospital—which must, under the clause, happen very soon—and, if so, whether one is in effect saying to the person, "The sooner you get better, the sooner you will find yourself in prison". That seems to be the effect of the provision.
What is envisaged is that it is appropriate for him to receive medical treatment in hospital. It is considered that the treatment will be likely to alleviate or prevent a deterioration of his condition—which is a very curious alternative—and the same applies both to mental disorder and mental handicap. So it seems to me very bizarre indeed that a judge should say, "Here is a sentence of imprisonment and when you have convinced the medical authorities that your condition has improved, you can go straight to prison". It does not appear to me that those are conditions in which the patient is likely to co-operate with the medical people treating him.
So I repeat my question, not just in relation to people with mental handicap, though I do not understand what kind of hospital treatment will improve a person suffering mental handicap. Secondly, I should like to know how this provision works in relation to a person
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who goes in with a mental disorder for treatment which is likely to alleviate or prevent a deterioration of it. How will that work? Will the judge add on the sentence to the period of hospital treatment or is the hospital treatment to bite into the sentence and, if so, what prospect is there of the patient declaring himself reasonably fit to join his friends and neighbours in Barlinnie?
6.30 p.m.
Lord Mackay of Drumadoon: I am sorry that I did not pick up the question from what the noble and learned Lord said earlier. There is no doubt that the sentence clock is running while the accused is in hospital. If there is a four-year sentence and he spends one year in hospital, that counts towards the four years. No doubt we can discuss the technical problems associated with early release at a later stage in our debate.
So far as concerns the point arising out of Section 17(1)(a)(ii), I certainly see the force of the noble and learned Lord's observation. That is certainly a matter which will have to be reflected upon. On the basis of my understanding of the treatment of those people, one could not exclude the possibility of such a direction being imposed and leading to some improvement which might be as far as treatment would take the offender and then he goes to prison. But it may be that more careful study of the valid point raised will show that there may be some scope for amending the new Section 59A(3) to refer to Section 17(1)(a)(i) rather than Section 17(1) per se.
Lord McCluskey: Perhaps I could ask for some further clarification. I mentioned the early release provisions. It worries me that if a person is told, "The time that you spend in hospital is knocked off the time that you spend in prison", he may be reluctant to co-operate with doctors to the extent of announcing himself cured. If he does not co-operate with the doctors in order to effect a cure, will that be regarded as naughty behaviour for the purpose of early release, so that he does not earn his one-sixth remission? Perhaps, if the noble and learned Lord the Lord Advocate cannot answer that question today, he will address it when we discuss early release, whenever that may be.
Lord Mackay of Drumadoon: I am confident that we shall come to early release either today or Monday. My understanding is that the problem about behaviour in a hospital is addressed in Clause 38(2) of the Bill, which reads:
"For the purposes of section 31 of this Act"—
that deals with early release—
"where a mentally disordered offender spends any period in hospital, he shall be treated as if he had spent that period in prison, and as if he had been awarded the maximum number of early release days which he could have been awarded under that section had he been detained in a prison during that period".
The Earl of Mar and Kellie: Before the noble and learned Lord sits down, can he confirm that we are dealing with an offender who was judged to be sane at

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the time of commission of the offence but subsequently, by the point of conviction, has developed a psychiatric condition?
Lord Mackay of Drumadoon: Yes, there is no doubt—as the beginning of new Section 59A sets out—that this provision will apply to persons who are:
"convicted on indictment in the High Court or in the sheriff court".
If they are insane and unfit to plead, or if there is any medical reason why they do not stand trial, this provision will have no application to them at all.
Baroness Carnegy of Lour: Just for clarity, perhaps I may raise one point with the noble and learned Lord. I have to admit that we are in an area with which I am not at all familiar. The Scottish Association for Mental Health has commented that the English Bill—the Crime (Sentences) Bill—limits the orders to patients with a psychopathic disorder. The Government have not taken the same line in Scotland. The association wonders why that is the case. If the noble and learned Lord has not already given an answer to that point—I may have missed it—can he explain it now? I feel that it is something that we ought to know.
Lord Mackay of Drumadoon: The noble Baroness is quite correct. When the provision (which I believe is in Clause 45 of the English Bill) was debated, the Government were encouraged from the Liberal Democrat Benches, as I recall, to go somewhat further and extend it to offenders other than those suffering from psychopathic disorder. That was resisted on that occasion.
We have clearly followed a different route in this Bill. If there is force in the contributions made by the noble and learned Lord, Lord McCluskey, we may well have gone too far. Clearly, the re-examination which is necessary following upon the point raised by the noble and learned Lord takes us back to considering whether the English approach is preferable or whether somewhere in between is the way that we should go in Scotland. But I shall certainly take account of the contributions made by my noble and learned friend in the examination I am happy to undertake.
Lord Monkswell: Can the noble and learned Lord the Lord Advocate say what practical difference this particular clause is likely to make? Suppose that a person has been convicted and is sent to prison for, say, four years. If he is then found to be suffering from some psychiatric disorder, presumably he could be referred to a secure mental institution for treatment. One would hope that that would happen anyway. There is, however, a suspicion that there are large numbers of people in our prisons who would in fact benefit from being in a psychiatric institution rather than in prison. The reason that they are not in such an institution is that the resources are not available to house them.
That is why I ask the practical question: what will be the practical difference with this clause? Will it effectively give judges in Scotland the power to send people to secure psychiatric institutions, where
2020
presumably there may not be places available for them? Will it give the judges the ability to direct resources into that area of social policy?
Lord Mackay of Drumadoon: The practical difference is that at the moment the court has two options. One option is to send the offender to prison; the other is to make a hospital order. In many instances, offenders for whom a hospital order is not appropriate come before the courts. Their medical condition is such that that is not the appropriate way for the complete disposal of that particular case. It is then said in mitigation that the accused would benefit from some form of psychiatric treatment. The response that the court has to give is that, when he goes to prison in terms of the sentence to be imposed, it will be a matter for the prison authority to take action and, in an extreme case, for the Secretary of State to exercise his powers under the Mental Health Act and take a mental health order which will require the accused to be removed from prison to the hospital in terms of the latter order.
These provisions give the court the option of making a hospital direction. That will make treatment available to the offender at the behest of the court. Armed with medical advice, the court may take the view that the mental illness or disorder from which the offender is suffering is one susceptible to treatment for which a spell in hospital will be of value. It may be felt that there is hope that over a period of time the offender will recover. If he does, he can be transferred from the hospital to the prison and release the beds in the hospital for other people whose illness is susceptible to treatment.
It is not a question of locking people up in state hospitals indefinitely. For those offenders who require that disposal, the provision already exists. These provisions relate to people whose disorder is susceptible to treatment but who, for whatever reason, have committed serious crimes which require them to be in custody for a period of time. It is an additional option to those that are currently available. It has been widely welcomed, albeit that some people with expertise in the field expressed anxiety as to whether the treating of such a patient in the hospital in the knowledge that if he recovers he will then go to prison is possibly not the ideal situation in which a psychiatrist would wish to work; it is felt that sending the offender to prison will undo the good work that has been done.
There is therefore a dilemma, as was cogently argued when we discussed similar provisions in the English Bill. Nevertheless, we believe it to be an option worth pursuing. Whatever reservations some may have about it, the message that we were given in relation to the English Bill was that we should extend it to more offenders than the English Bill currently covers. On that basis I hope the provisions will be welcome, albeit that the provisions in the Scottish Bill may need further treatment.
Lord McCluskey: I am encouraged by the earlier remarks of the noble and learned Lord that further consideration should be given to this matter. I am slightly puzzled by the reference to Clause 32 of the

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Bill. It is certainly applicable but means that a person who is in hospital is automatically entitled to the maximum number of early release days whether or not he behaves himself. Therefore, the longer he stays in hospital, the less need there is for him to behave.
Finally, I received a letter from the Scottish Association for Mental Health. I have been chairman of that body for nearly 10 years and should have raised the matter myself. Unfortunately, my letter on the subject became mixed up with others and I did not come to it until today. However, having been encouraged by the answers given by the noble and learned Lord the Lord Advocate, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 90:
Page 13, line 11, at end insert—
("( ) The court shall not impose a hospital direction under subsection (1) above unless it is satisfied that a hospital order would not be a more appropriate disposal.
( ) Where a court imposes a hospital direction under subsection (1) above it shall give its reasons in open court for the imposition of such a direction rather than the imposition of a hospital order.").
The noble Lord said: This part of the Bill is quite interesting. The noble and learned Lord the Lord Advocate may be familiar with the recent case where a person accused of a crime "conned"—to put it one way—the psychiatrists and enabled himself to be sent to Carstairs instead of to prison. When he reached Carstairs, he complained that he should not be there, having conned his way in. We are therefore dealing with a delicate area of human behaviour.
Amendment No. 90 has not been grouped with Amendments Nos. 91 to 95. It may save some time if the noble and learned Lord the Lord Advocate can say whether or not the Government have had time to consider these amendments and are prepared to take them away and look at them further. They are not tabled for political reasons, but for social reasons in this difficult area. Perhaps the noble and learned Lord will indicate whether I need to take up the Committee's time in speaking to Amendments Nos. 91 to 95 as well as to Amendment No. 90.
Lord Mackay of Drumadoon: If it will assist, I can say that we have had some time to consider the points that lie behind these amendments and are not disposed to accept them. As the noble and learned Lord, Lord McCluskey, demonstrated, I am open to persuasion. But I need to hear the arguments first.
Lord Macaulay of Bragar: I was hoping to save some of the Committee's time. However, I will speak to Amendment No. 90 first. The new hospital direction is causing anxiety among those people who are unfortunate enough to be involved in that area of life. It was tabled to make sure that the court does not dodge the responsibility of making a hospital order when a person is suffering from a mental illness—whatever the correct description may be—and uses the hospital
2022
direction as a half-way house. That will serve neither the community nor the individual and will only create difficulties.
I should like to hear the noble and learned Lord's response. We cannot have a situation where the courts use the order as a half-way house rather than face up to the reality of the circumstances of the offence, the circumstances of the individual and his long-term future in relation to society. I beg to move.
Lord Mackay of Drumadoon: As I indicated earlier, the Government have thought about this amendment and cannot agree to it. What concerns us are the assumptions that lie behind it. They are assumptions to be borne in mind when considering an option which is not properly focused in the amendment.
As I indicated earlier, there are two stand-alone options when dealing with serious offenders who have mental problems. The first is to send the offender to prison and the other is to impose a hospital order. The hospital direction is not a stand-alone option; it is to run with imprisonment. Therefore, the options are, first, a hospital order; secondly, imprisonment with a hospital direction; and thirdly, imprisonment alone.
Our concern is that by putting such a provision on the face of the Bill Parliament would be taking the view that the courts need reminding of what the relevant sentencing options are in serious cases of this nature. Clearly, if any question of mental illness arises, the strong probabilities are that the court would have before it medical reports, and the Bill sets out what would be necessary. If the court was to consider a hospital order the more appropriate disposal, we can assume that it would make one. On the other hand, if the court was not of that view and took the view that a sentence of imprisonment combined with a hospital direction was the right order, again it would proceed along that path.
The idea that the court must start out by looking at the hospital order and be satisfied that that was not appropriate before considering the direction linked with imprisonment or imprisonment alone is the wrong approach. All three options are open, and, indeed, any other option that might strike the court as being appropriate for a person convicted in the High Court suffering from mental illness. In another case, probation with a condition of taking such medical assistance or guidance as a supervising officer deemed appropriate might be an option. One doubts whether community service would be, but one can never eliminate the possibility.
It seems to be wrong to set out which option one has to look at first and which option one has to exclude. That is why the assumption that lies behind the order is not one the Government feel is attractive. If that is correct, the second part of the amendment is also inappropriate because it would require the court to state why it had rejected the hospital order before passing to the sentence of imprisonment linked with the hospital direction.

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I am sure the noble Lord had the best of motives in bringing forward this suggestion, but I hope he is persuaded that it would not be a helpful route to follow.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for his explanation. I am sure that it will be read with interest by those concerned with this delicate area of human behaviour. With that proviso, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 91:
Page 13, line 13, at end insert ("or a person to whom subsection (2A) below applies.
(2A) This subsection applies to any person who is—

(a) convicted of an offence punishable by imprisonment under the Army Act 1955, the Air Force Act 1955 or the Navy Discipline Act 1957;

(b) a civil prisoner, that is to say a person appearing before the court in respect of a civil debt;

(c) awaiting to be sentenced by the court for non-payment of a fine imposed upon him; or

(d) detained under the Immigration Act 1971.").

The noble Lord said: This amendment speaks for itself. I assume from what the noble and learned Lord the Lord Advocate has already said that it will not appeal to him. Perhaps the Government will have a look at it to see whether it is a sensible amendment. The general view is that hospital orders should not apply to the people set out in Amendment No. 91. On that basis, I beg to move.
Lord Mackay of Drumadoon: As my right honourable friend the Minister of State made clear when this issue was debated in another place, the first three lines of new Section 59A, which are to be found printed on page 13, lines 4 to 7, achieve the result which this amendment seeks to achieve. For that reason the Government believe it is unnecessary. Virtually all the categories of persons set out are already excluded by the opening words of Section 59A,
""convicted on indictment in the High Court or in the sheriff court of an offence punishable by imprisonment".
The only exceptions would be those few offences in the Service Acts which may be, and in a particular case have been, tried in the criminal courts rather than by court martial. If a full trial has taken place before the High Court or a sheriff court, in those few cases I can see no reason for precluding the court from considering the imposition of a hospital direction in addition to any term of imprisonment. It will have heard all the evidence and it will have all the medical evidence available. With that explanation, I hope that the amendment will not be pressed.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 92:
Page 13, line 25, after ("form;") insert—
("(bb) each medical practitioner mentioned in paragraph (a) above shall confirm to the court that—

(i) he has examined the patient personally within seven days of appearing in court;

(ii) each such examination was either carried out separately, in which case not more than five days elapsed between the days on which the separate examinations took place, or no objection was made by the patient or his nearest relative (being informed of the right of the offender to have separate examinations) and the examinations were carried out together;

(iii) he is not related to the offender; and

(iv) he has no pecuniary interest in the admission of the offender to that hospital;").

The noble Lord said: This amendment again speaks for itself. Before anyone is dealt with under the medical conditions within the criminal law we believe that the reports before the court should be of recent and not of ancient origin. The suggestion is that they should be made within one week of the patient appearing in court so there is no doubt that when the court takes its view of the proper disposal it has up-to-date reports before it. I beg to move.
Lord Mackay of Drumadoon: The Government consider this amendment to be unnecessary. The amendment refers to the evidence being within seven days of a court appearance. The approach the Government have always followed in these matters is to leave it to the court to be satisfied that the evidence is sufficiently up-to-date for it to discharge its duty or to exercise its powers under the sentencing legislation. We see no reason to change that approach on this occasion.
In our view, the other concerns lying behind the amendment are adequately addressed by Clause 9(2) of the Bill, which is in fairly technical terms in so far as it refers to amendments of Section 61 of the 1995 Act (requirements as to medical evidence). With that explanation, I hope the amendment will not be pressed.
Lord Macaulay of Bragar: It is becoming like a game of tennis here. On this occasion, game, set and match to the noble and learned Lord the Lord Advocate! Those concerned with these issues will no doubt look with interest at what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 93:
Page 13, line 29, at end insert ("; and
(d) the court has received a report from a mental health officer who has interviewed the person within 14 days of the hearing.
(3A) A report under subsection (3)(d) above shall be in the prescribed form and shall—

(a) report on the social circumstances of the person; and

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(b) confirm that, in the opinion of the mental health officer, a hospital direction would be the only appropriate disposal in all the circumstances of the case.").

The noble Lord said: This amendment applies to the same kind of situation which I explained when I moved Amendment No. 90. It is self-explanatory. It seeks to ensure that a court making a hospital order or direction should have before it all the information necessary to make the order. With that short explanation, I beg to move.
Lord Mackay of Drumadoon: The issue which arises in Amendment No. 93 is to some extent related to that which also arises in Amendment No. 94. For the convenience of the Committee, perhaps I may explain the Government's position. We do not consider it would be appropriate for a mental health officer, who would he a local authority official, to have in any sense a right of veto over a court's consideration as to whether to impose a hospital direction. That would, we believe, be the effect in particular of Amendment No. 93. It refers in paragraph (b) to confirming that,
"in the opinion of the mental health officer, a hospital direction would be the only appropriate disposal in all the circumstances of the case".
It is for the court to decide the matter in the light of the medical evidence laid before it. We do not think this is an instance where the mental health officer can have a role of the nature which lies behind Amendments Nos. 93 and 94.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation in relation to Amendments Nos. 93 and 94. I quite accept that the amendment as presented to the Committee is defective. Perhaps instead of "the only appropriate disposal" it should read "might be an appropriate disposal". That would leave the discretion to the court. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 94 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 95:
Page 14, line 6, at end insert
("(8) The conveyance of the person mentioned in subsections (6) and (7) above shall only be undertaken by such persons as specified in section 62A(1)(a) below.".").
The noble Lord said: This is the last of this group of amendments relating to mental health. Again, it is self-explanatory. The reasoning behind it is that it should not be the responsibility of the local authority to convey prisoners—call them what you may. The police or the prison or hospital authorities should bear the burden of transport rather than putting it on the community. With that short explanation, I beg to move.
7 p.m.
Lord Mackay of Drumadoon: Again, we believe that this amendment is unnecessary. It seeks to define who should convey a person to a place of safety. The court already has power to make additional directions as
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it thinks fit for the conveyance of persons to a place of safety. We believe that it is appropriate that it should be the court which decides this rather than it should be determined in advance unequivocally by Parliament. The court can choose whoever is appropriate. We believe that to be the right way forward. I hope that the amendment will be withdrawn.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation, but what options are open to the court? Who is going to take the person at the behest of the court? Will it be the police or what other options are open to the judge?
Lord Mackay of Drumadoon: The options are to be found in Clause 6 at the foot of page 14 of the Bill:
"A hospital direction [order] made under the [new] section 59A … shall be sufficient authority—
(a) for a constable, a mental health officer, an officer on the staff of the hospital specified in the direction or other person directed to do so by the court to convey the person in respect of whom the direction has been made".
That leaves flexibility to the court in a way which this amendment might not. The section is referred to in the amendment and, on reflection, we hope that it will not be insisted on.
Lord Macaulay of Bragar: With that explanation, I also shall be flexible. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Courtown: I beg to move that the House be resumed. In moving that Motion, I suggest that the Committee stage begin again not before five minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Professions Supplementary to Medicine (Arts Therapists Board) Order of Council 1997
7.2 p.m.
Baroness Cumberlege Baroness Cumberlege rose to move, That the draft order laid before the House on 6th February be approved [12th Report from the Joint Committee].
The noble Baroness said: My Lords, the order before your Lordships creates an Arts Therapists Board under the Professions Supplementary to Medicine Act 1960. Arts therapists are specialist practitioners who use techniques to help clients with severe communication problems through painting, drama, music and other arts. The broad effect of the order is to extend the 1960 Act to include arts therapists along with chiropodists, dietitians, occupational therapists, physiotherapists, orthoptists, medical laboratory scientific officers, radiographers, and, as of this month, prosthetists and orthotists.
The board's function will be to promote high standards of professional education and conduct, within the umbrella of the Council for Professions Supplementary to Medicine (CPSM) whose duty it is to co-ordinate and supervise the activities of all the boards. The board's main duties are to prepare and maintain a register; approve training courses leading to state registration and the institutions providing them; determine applications for admission to the register on the basis of qualifications and experience acquired either in the UK or elsewhere; and to set up investigation and disciplinary committees to produce guidance on conduct and deal with individual cases of misconduct.
Practitioners who are registered by the board will be entitled to call themselves "state registered arts therapists". The use of that title by a person who is not registered will be an offence, as will the use of any title or description which falsely implies that he or she is registered under the 1960 Act.
The Act requires that the board should have a majority of members from the professions concerned. It is proposed to have 17 members appointed by the CPSM, of whom nine will be nominated by the profession in the first instance and thereafter elected by registrants. Of the remaining members, three will be doctors nominated by the Scottish and English royal colleges and one will be an expert in professional education; two will represent the interests of employers; one will represent the interests of patients and carers; and one will be from the health or social care professions other than medicine or the professions regulated under the Act. Neither patients nor employers have hitherto had a voice on boards. The creation of this board, and the recently approved Prosthetists and Orthotists Board, offers a good opportunity to fill that significant gap.
The size of the CPSM itself will also increase from 24 to 27 because the Act requires that all boards have a professional representative on council and that the number of medical and professional members should be equal. The third "lay" member preserves the balance of representation between professional, medical and other members.
The Act does not require the profession to do more than satisfy the CPSM, the Privy Council, and your Lordships' House that it is a profession supplementary to medicine. The underlying intention is, however, clearly to afford the public a degree of protection that it would not otherwise have.
Arts therapists comprise a small, highly specialised group—about 1,500 practitioners in the UK. All were originally hospital-based, but now increasingly work in the community, general practice, education, social services and prisons, generally in the mental health field. Only a minority (about 30 per cent.) are directly employed in the NHS, although practitioners in other sectors accept referrals of NHS patients.
The profession combines the three disciplines of art, music and drama. All share common approaches to training and practice, but vary in the medium used. All combine artistic proficiency with psychotherapeutic
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techniques to enable patients with severe communication problems to express feelings which might otherwise remain unexpressed—in short, to promote self-esteem and personal growth through self-awareness. Patients typically include profoundly damaged people who may be beyond the reach of other therapies—child victims and adult survivors—and indeed perpetrators of sexual, physical and emotional abuse or other trauma; sufferers from acute depression, severe mental illness or behavioural problems, as well as those with progressive or terminal disease. The therapeutic process can be intense and sustained, and the techniques used are powerful and potentially dangerous to both patient and practitioner if mishandled, particularly where the latter is inappropriately trained or motivated. It is for this reason that members of the professions seek and are trained to provide a safe and secure environment in which to help healing.
Admission to professional membership normally entails the possession of a degree in the creative discipline concerned followed by a period of one to three years' relevant work experience in health, education or social services. There follows a postgraduate diploma course of at least one year and mostly two years at an approved higher education institution. This UK model is one that a number of other countries, particularly in Europe, have adopted.
In their practice, arts therapists will often work independently or with limited supervision, but they readily identify themselves as members of multidisciplinary teams accountable to the clinician with overall responsibility. In turn, arts therapy is accepted by other professionals as making a valuable contribution to the treatment of a wide range of disorders. The profession has secured the support of representatives of medicine, nursing, psychology, and of all the groups now covered by the 1960 Act, for this proposal.
Essentially, the case for state registration of arts therapists is that it gives a clear and objective signal to the public and to colleagues making referrals. It ensures the high standards of training, conduct and practice that they can expect. The paramount interest is that of patients and carers who will often be in no position to judge the standing of practitioners. They can be assured that both those falsely claiming those standards, and those falling short of them, will be effectively dealt with. In addition, state registration will provide a benchmark for employers; offer an opportunity to strengthen the collaboration between the health professions; provide a coherent mechanism for dealing with overseas qualified practitioners, including those from the European Economic Area, wishing to exercise the right of freedom of movement; and assist in workforce planning by keeping a continuous record of the pool of qualified practitioners.
This measure, if approved, will provide a scheme of self-regulation at arm's length from government and funded by practitioners themselves. The Government are satisfied that arts therapists (though still a relatively young profession) have sufficiently developed to join the family of mature professions regulated by the CPSM, and I commend the making of this order by the Privy Council.
Moved, That the draft order laid before the House on 6th February be approved [12th Report from the Joint Committee.—(Baroness Cumberlege.)
Baroness Hayman: My Lords, I shall not detain the Minister for very long because I suspect that she may have a more glamorous engagement elsewhere. However, I should like to say a few words of welcome for the measure and to endorse the support that was given to it in another place by my honourable friend, Mr. Mark Fisher.
Although limited, this is an extremely important measure which recognises the valuable work of a small group of practitioners both within and outside the National Health Service. The Arts Therapists Board will be extremely important, not only in terms of recognising, promoting and monitoring the role of those already working in this area in music, drama or art therapy, but also, I hope, in promoting in a broader sphere the role of art within healing. In the past many of us who have worked within the health service have not sufficiently appreciated the effect of art on patients and their healthcare. Art is important whether it is in the form of design, artwork or music and it can play an important and beneficial role in healthcare establishments.
I emphasise my support for the work of art therapists—and not only in health service institutions—because one of my most moving experiences as the chairman of a hospital trust was the day when various women prisoners from Holloway donated to the hospital the works of art that they had chosen to produce to thank the hospital for the care it had given them. Under the auspices of the education department in Holloway, they had produced some wonderful work. It was extremely encouraging to hear those women talk about the importance of being able to do something creative and put something back into society. That made one feel that there were some ways in which prison could be made a positive experience.
I hope very much that the board will act not only to ensure high professional standards among art therapists, but also to research and to promote a wider understanding among the public of the healing qualities that art can have.
Baroness Cumberlege: My Lords, I thank the noble Baroness for her support for the measure which I am sure will be widely welcomed among art therapists. The order will also do a great deal to protect the public. I endorse the views expressed by the noble Baroness about the role of the arts in hospital and in healing. We know that healing is a science, but I think that it is also an art. I commend the order.
On Question, Motion agreed to.

Jobseeker's Allowance Pilot Schemes
7.13 p.m.
Earl Russell Earl Russell rose to move to resolve, That the Jobseeker's Allowance (Project Work Pilot Scheme)
2030
Regulations 1997 and Jobseeker's Allowance (Project Work Pilot Scheme) (No. 2) Regulations 1997 be not proceeded with and that this House requests Her Majesty's Government to lay amended regulations omitting the words "could cease to be payable or" in regulation 4(2).
The noble Earl said: My Lords, I had understood that the Minister was to open the debate generally before me. If the noble Lord wishes to do so, I am happy to give way to him.
Lord Henley: My Lords, my understanding was that, since this is the noble Earl's Motion, he will speak to it first and I shall speak at the end. In speaking at the end, I shall speak to all my regulations to save the time that would otherwise be taken by having two separate debates, first, on the noble Earl's Motion and, secondly, on the regulations. Obviously, it is open to either the noble Earl or the noble Lord, Lord McCarthy, to speak to all five of the different regulations separately after we have dealt with this Motion.
Earl Russell: My Lords, I thank the Minister—
Lord Graham of Edmonton: My Lords, are we sure that that is the correct procedure?
Lord Henley: My Lords, the Motion is in the name of the noble Earl, Lord Russell. He will speak to that. He will be followed by the noble Lord, Lord McCarthy. I shall then speak and then the noble Earl, Lord Russell, will speak again. Thereafter, we can deal with the regulations en bloc or as Nos. 1 to 5 separately. I had hoped that I had explained earlier to the noble Earl that I had intended, in replying to this debate, to speak also to the five regulations because that might speed up our processes—that is, as long as all noble Lords are content. I give way to the noble Lord, Lord McCarthy.
Lord McCarthy: My Lords, the critical thing is whether one makes one speech or two. If the noble Lord is suggesting that when the noble Earl, Lord Russell, speaks to his Motion, he speaks also to the regulations, he will make one speech, so will I and so will the Minister. The three of us will make three speeches. I should have thought that that was the best way; otherwise we shall have to make six speeches.
Lord Henley: My Lords, that is correct except that the noble Earl, Lord Russell, will make two speeches—he will speak at the beginning and at the end—while the noble Lord, Lord McCarthy, and myself will each make one speech. That is a total of four if my calculations are right and I think that the House would probably be happier with that arrangement.
Earl Russell: My Lords, I really must apologise to the Minister for misunderstanding our brief, hurried but helpful conversation this afternoon. I think that that shows that "belt and braces" is on occasion a dangerous policy. However, I am extremely grateful to the noble Lord for trying.

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Before developing further the specific theme of my Motion, I should like to touch on one or two general points arising from the working of JSA which are relevant to my argument because they tend to show the possibility of error. A fair amount of trouble is still going on about the "joins" between the Employment Service and the Department of Social Security systems. I refer, for example, to a case in Hertfordshire which I have already mentioned to the noble Lord, Lord Mackay of Ardbrecknish, although it may be news to my noble kinsman Lord Henley. The case involves someone who received two letters on the same day, one telling him that he had been awarded the Jobseeker's Allowance and the other disallowing his claim to JSA for,
"the reasons we have told you about in another letter",
which he had not received.
We have a considerable amount of trouble with voluntary unemployment and people not asking for a claim form. The department does not ask anybody to explain their reasons for leaving and then imposes the voluntary unemployment penalty because claimants' employers were not willing to give a reason as to why they had left. There are a good many such errors, many leading to disentitlement where that should not, in justice, have taken place.
We have some trouble arising from the changed programme. One Benefits Agency office sent a client to a citizens advice bureau to get the form filled in on the grounds that the Benefits Agency was too busy. That was confirmed on investigation. It suggests that perhaps the basis of the changed programme needs a little watching.
All of those things have led to errors. Most of the errors have led to people being without benefit. That makes one wonder whether, in a system which is so capable of error, such a degree of disentitlement to benefit is prudent.
The specific point of my Motion concerns the regulations for the pilot schemes for Project Work, the workfare scheme, and seeks to ask the Government to bring forward amended regulations, omitting the words,
"could cease to be payable or".
The effect of that would be to make it impossible under the regulations to disentitle people totally to benefit. That is put forward as a general point of principle, the relevance of which extends far beyond the scope of these regulations. I make that general point of principle, which will not surprise either the noble Lord, Lord Mackay of Ardbrecknish, or my noble kinsman, because it is important to indicate a continuing lack of consent on this point.
I can most briefly put my first reason for objecting to total disentitlement to benefit in the words of St. Paul, who said that we may not do evil that good may come. This is something which should be the subject of a taboo, just as there should be a taboo on failing to stop to pick up survivors at sea or failing to help somebody who is found bleeding after an accident. Perhaps I may take another example. A person I know quite well once slipped on the platform at Waterloo and fell, becoming
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wedged between the train and the platform. She was naturally a little alarmed because the train was just about to depart—and all the passers-by walked on down the platform and did absolutely nothing to help her. I think that is a sign of a sick society. Disentitlement to benefit is the sign of a sick society in very much the same way.
It has of course been tried in other places. There was a report last Tuesday of the effects of disentitlement to benefit in Wisconsin under the Clinton welfare reforms. It has produced a 30 per cent. increase since Christmas in homelessness. That cannot be done without cost. One of the people running a shelter said, "It is poverty that makes people homeless, and welfare reform is making more people poor, and driving the poor deeper into poverty. Then they show up on our doorstep".
As recently as yesterday, it was reported in the Independent that the BMA is complaining about GPs being asked to fill in a form about people disentitled to benefit to say whether they are a suicide risk. That interested me, because it is the first sign I have seen that the Government appreciate the potential gravity of what they are engaged in doing. In that situation, if my GP were to certify that I was not a suicide risk, I would be tempted to sue him for libel, because I would believe that he was certifying that I was capable of earning my living by criminal activity, which is the obvious alternative.
The effect of withdrawing from people the protection of the safety net is very much like the effect in times past of making them outlaws. It is withdrawing the protection of the state from them. Of course whatever the moral position may be—I am not touching on that—if one withdraws that protection from people, one gets the reaction that it weakens the impulse to keep the law. That is inevitably so.
The other trouble of course about doing evil that good may come, is that the good usually does not come. If you look, for example, at the Nottingham Young People's Benefit Campaign you find large numbers of people who did, in fact, however wrongly, take to crime because they were denied benefit. I shall not develop that theme. Noble Lords know perfectly well how I should develop it. Noble Lords might also notice the extreme prominence and frequency of mental illness discovered in the Shelter report Go Home and Rest, among people homeless on the street. All those are not cost-free things. So even in strictest Treasury terms we might wonder whether any saving results. It is of course impossible to check that—I have tried many times—because there are Chinese walls within government statistics. One cannot discover how many people admitted to hospital were destitute of benefit; one cannot discover how many people sent to prison were destitute of benefit. So one cannot make any quantitative study to show the extent of it. Before there is any more disentitlement to benefit such as is brought in under these regulations, that should be put right. Until it is, I do not see how the DSS can claim to be monitoring what it is doing.
There is also of course the possibility of instituting a real petty tyranny by sending decisions of this sort of import to people's lives down to a very low level

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indeed, and, indeed, sometimes, in effect, by delegation, outside government circles altogether. Let us take, for example, a case reported from a CAB in Yorkshire: someone dismissed from his job after five weeks, he alleged, for making a joke in the presence of a supervisor. As we have seen in Welwyn and Hatfield, some jokes are funnier than others, but even there dismissal has not been held to be the appropriate penalty. That man was without any form of support except what he received from the Salvation Army for two weeks, and disentitled to regular benefit for 26 weeks. It must have been a very bad joke.
Again, let us take this, reported from a CAB in the North West: someone disqualified from JSA, left without anything at all, even severe hardship payments for two weeks. The CAB commented:
"He is therefore expected to starve in a dark, unheated flat for two weeks. We wonder how this will help him to get a job and get off benefits".
Perhaps I may ask the Minister to answer the CAB's question. I beg to move.
Moved, That the Jobseeker's Allowance (Project Work Pilot Scheme) Regulations 1997 and Jobseeker's Allowance (Project Work Pilot Scheme) (No. 2) Regulations 1997 be not proceeded with and that this House requests Her Majesty's Government to lay amended regulations omitting the words "could cease to be payable or" in regulation 4(2).—(Earl Russell.)
7.25 p.m.
Lord McCarthy: My Lords, I want to do two things this evening: I want to define our attitude towards the Motion and, secondly, to ask a number of questions about the regulations. I agreed with almost all the noble Earl said, subject to two clarifications which I must make. First, it is not our policy to divide the House on regulations. It is our policy to maintain that the Government of the day should have their way on regulations, and we hope very soon to benefit from that rule, so I would not take my agreement with him to a point where I would suggest we should divide the House.
Secondly, I feel that there must be a point at which the refusal to co-operate—I am not sure that the noble Earl would disagree with this—with fair and reasonable demands from an employment officer should result in some loss of entitlements. The question is whether that is happening after a fair and reasonable set of alternatives, and whether the sanctions, when they are applied, are themselves fair and reasonable.
We should see the Motion in the context of what has been happening with regulations and the benefits service since the introduction of the stricter benefit regime, because what is happening, and what is embodied in the regulations, is merely a development of the policy of the stricter benefit regime: ever stricter conditions to qualify for the benefit, and therefore much more likely, and much easier, to disqualify for the benefit. Also of course there is a constant use of Restart courses, job clubs, job
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plan workshops, jobsearch seminars, and so on, and so on, which are offered on a compulsory basis to the long-term unemployed, although of course we have no evidence that that stricter benefit regime has produced any benefit in terms of positive outcomes. Positive outcomes from the new regime are still trifling.
Then of course there are re-orientation programmes, upon which we have some more regulations tonight, and project work, workskills, contract for work, and so on. Again, there is no evidence, despite the increase in the sanctions and the increase in the compulsory work, that they have had any positive outcome whatever for the people going through these programmes; 95 per cent. of them still go back on to the unemployment register. Here we have two more courses advanced today in pilot form: the project work pilot and the contract work pilot, about which I shall say something.
The Government will say—they are entitled to say—that there is nothing new in such schemes. They are right. There are many other schemes. Indeed, I want to know why we have so many schemes. I want to talk about three of the regulations, because we have five regulations. It seems to me that two of the regulations are relatively innocent. There is the regulation which says merely that those on workskill courses should be exempt from the AST test when they are on the course. Well, even the Government could see that that is necessary. That is innocent enough. I read it carefully and I can see nothing wrong with it. Therefore, I have nothing further to say about that regulation.
The other regulation, which is logical if a trifle mean, provides that from the very beginning the AST applies from the start of the JSA. I doubt whether anybody would have known that it did not start at the beginning. That appears to be logical and not particularly important.
Tonight I do not want to talk about those two regulations, but I wish to ask a number of questions about the two regulations which affect the pilot work scheme and the regulation which affects the contract for work. I have four questions that I wish to ask the Minister. First, what exactly is the difference? What will be done by the unemployed workers who go on these schemes?
In the regulations the Government give a definition of what they mean. It is good to have that; it is the first time that we have had such a definition. For example, the project work scheme regulations inform us that project work means:
"work experience and jobsearch help lasting for … 13 weeks".
That is not very different from the meaning of contract work, the definition of which is:
"work experience, vocational training and jobsearch help and training".
Vocational training is added, but there is still work experience, and that lasts for 26 weeks. What precisely is the difference? The workskills course, a regulation that I do not wish to debate, is employment-related and is a programme of learning lasting more than 12 months.
Reading the definitions of the courses, they appear to be very much the same, except that they last for

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different periods. That is not the only confusion. The Government have had other schemes such as training for work, learning for work, community action and work trial which have similar definitions. Why do we have all these different schemes? What is the point, when 95 per cent. of the participants go straight back to the dole?
I turn to my second question. All these schemes are to be made compulsory, but we have one well-established scheme which has been voluntary—community action. It takes 40,000 people off the dole for a mere £70 million. Why are we getting rid of community action, which is a voluntary scheme? What is wrong with community action that it has to be phased out as these compulsory schemes are introduced? Is community action cheaper or more expensive? Is it a better scheme or a worse scheme? Why is it being phased out when it covers 40,000 people? I suppose that these tiny pilot schemes are being put in its place.
My third question deals with the contract for work scheme. I suspect that it is one of the Government's favourites because it introduces the private-sector element. The definition of a contract for work scheme is:
"Work experience, vocational training and jobsearch help and trainine".
It lasts for 26 weeks, but I understand that it will be split in two. Two of the pilots are to be privatised but the other two will be undertaken by the Employment Service. Why is it being done like that? Is it that the private sector is being watched by the public sector? Is it that the private sector is thought to be cheaper or more expensive? Do the Government have any idea what the costs of the two schemes will be?
I understand from the statement made by the Chancellor in his latest Budget that the private-sector scheme will be run by consultants—nowadays virtually everything is run by consultants—who will receive a commission. Can we be told the size of the commission? Can we be told what they will have to do for the commission? Can we be told that if they succeed they will he able to take over all the schemes? I shall be interested to have any information that the Minister has about the private-sector element in the contract for work scheme.
I turn to my final question. It is not really a question; I am trying to get clarity from the Minister. It is a conceptual question. As I see it, the Government have two ways of approaching the problem of what to do with the unemployed—workfare and searchfare. The question is whether you can combine the two. Workfare means that if you are on benefit you must be working for the benefit. We are not having people taking benefit and doing no work. If you do more work while you are taking the benefit, you get the benefit plus—it may be another £10 or so. Searchfare means that all the time you are on benefit you must be actively seeking work. We see a mixture of those two elements in the pilot programmes. What is the balance? Even the Government can see that you cannot be working all the time and searching all the time. There must be some
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kind of trade-off; otherwise for the unemployed there will be no work and no rest. Even the Government cannot believe that.
7.35 p.m.
Lord Henley: My Lords, I wish to speak to the five sets of regulations standing in my name on the Order Paper and then to the Motion in the name of my noble kinsman Lord Russell. Following whatever decision the House may take—I am sure that it will take a wise decision and reject my noble kinsman's Motion—I shall formally move all five Motions.
As the House will be aware, these matters were debated in another place on 26th February in Committee. I believe that only one Member of the Opposition party deigned to attend, whereas my party was considerably better represented even than it is on this occasion. Certainly on this occasion it is better represented than the noble Lord's party.
The Jobseekers Act 1995 provides for pilots of new approaches to helping unemployed people into work to be established through regulations. I believe that the policy is supported by the party opposite. My purpose today is to seek your Lordships' approval to introduce new pilot schemes which would allow us to evaluate some new and innovative approaches to helping unemployed people into work. I am also seeking agreement to some minor amendments to JSA regulations.
I would like to introduce the regulations to the House by explaining briefly the nature of the powers being sought and how the pilot schemes would work. I turn first to the Jobseeker's Allowance (Workskill Courses) Pilot Regulations 1997.
During the passage of the Jobseekers Bill we made two commitments. First, we said that we would collect information about the effect of the JSA rules on education and training. We have met that commitment. Research reports will be published shortly, possibly by the end of the month. Secondly, we said that we would consider piloting different arrangements. We have now met that commitment too. These regulations will allow us to introduce the pilots. They will be called the workskill pilots. They will allow us to evaluate new, more flexible arrangements for people who have been receiving JSA for six months or more to undertake employment-related education and training to help them into work.
We aim to introduce the pilots in April 1997. There will be two versions. One will be run in Liverpool and in Leeds. This will allow people to undertake certain part-time courses of up to a year and to be available for and look for part-time work which can be fitted around their course. The other will be run in Cardiff and in Wolverhampton and Walsall. This will allow people to undertake certain full-time courses of up to a year and excuse them from the normal JSA rules on availability for work and looking for work while they are on the course.

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I turn now to the Jobseeker's Allowance (Project Work Pilot Scheme) Regulations. The project work pilots provide an intensive period of jobsearch help and, for people who need it, a period of mandatory work experience.
In May last year, the House approved the Jobseeker's Allowance (Pilot Scheme) 1996 Regulations. Since then we have been running two project work pilots in Hull and Medway and Maidstone. The results of those pilots have been encouraging.
The regulations before the House today would establish two new pilot schemes. One provides for an expansion of the project work approach with some modification to 28 new areas, starting between February and May this year. The other replaces the current pilots in Hull and Medway and Maidstone with a further and modified scheme which would continue to run alongside the pilots in the new areas.
We want to test some variations to the model used in Hull and Medway and Maidstone to see if we can improve its effectiveness. There will be an emphasis on literacy and numeracy help in all the new pilots. In some pilots, we will be testing intensive and additional literacy and numeracy support. We also want to test in some pilots whether experience in a real workplace improves people's chances of getting a job through increasing the involvement of the private sector.
I turn now to the Jobseeker's Allowance (Contract for Work) Pilot Regulations. We are also seeking powers today to run four contract for work pilots, two private sector and two ES pilots, each covering 3,000 people—12,000 people in all. The contract for work pilots will run in Manchester, London, Glasgow, and Birmingham. The pilots will cover all those in the areas in which they are run who have been unemployed for two years or more. They will start in June and last for 12 months. Participants will be referred to the pilots for six months.
Participants who leave the pilot before completing six months but return to claim JSA during the life of the pilot will be referred back to the pilot for the balance of the six months remaining. The pilots will be mandatory: participants will be liable to benefit sanction for misconduct or non-attendance. Pilot participants will receive JSA, or an allowance equivalent to their JSA entitlement, while on the pilot. Participation on the pilots will not affect eligibility for passported benefits. Private sector organisations will be paid for their success in placing people in sustainable jobs.
I turn finally to the Social Security (Jobseeker's Allowance and Mariners' Benefits) (Miscellaneous Amendments) Regulations 1997. These amendments correct an anomaly in the current regulations which has come to light in the operation of JSA. JSA labour market conditions are applied across a full benefit week of seven days. But most jobsekers will have a period of a few days at the beginning of a claim for JSA before the cycle of full benefit weeks kicks in. The policy intention is that such jobseekers should still be required to act in such a way that they could meet the normal conditions of JSA had that period been a full week. But the current regulations have the effect of giving some jobseekers entitlement to JSA in that part-week period
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whether or not they are available for work or taking any steps to look for work. These amending regulations simply restore the original policy intention. In the case of the mariner's benefits, the regulations remove an obsolete provision.
The pilot regulations, if approved, would be in force for one year only and would establish scheme which will operate in specified areas. Any possibility of further extension is a matter for future consideration, which would include further scrutiny by the Social Security Advisory Committee and require further regulations to be put before Parliament.
I hope that those opening remarks have been useful. I shall certainly move on to the Motion in the name of my noble kinsman Lord Russell. However, perhaps I may answer a few of the points put by the noble Lord, Lord McCarthy, on the different regulations. In effect, he asked four questions and to some extent they all have the same or a similar answer. First, he asked why there are so many different schemes. There is one very simple answer. I refer to a word which appears in the title of a number of the regulations; that word is "pilot". We want to try a whole range of different ideas and methods. As I have heard from the noble Lord's party on a number of occasions, that view is accepted. Noble Lords opposite now accept that there is no one simple answer to the particular problem of encouraging people to come off benefit and look for work. Why else is it proposed to impose a windfall tax on successful privatised utilities other than to provide the necessary finance to try out a number of different schemes. We are trying them out by means of pilot schemes so that we can try to see which schemes are most effective.
Lord McCarthy: My Lords, I see that in relation to pilot schemes. However, there is the restart course, the job club, the job plan workshop, training for work, jobsearch, job interview guarantee, learning for work, business start-up, community action work trial and so on. There are too many.
Lord Henley: My Lords, I simply do not agree with the noble Lord at all. There are a great many people in the country and they are all different and have different attributes. We want to try a whole range of different schemes and programmes to meet the different requirements. It is—dare I say it?—a rather centralist approach to suggest that the number of schemes should be narrowed down. We wish to continue with a whole range of schemes which operate nationwide. Some schemes prove to be highly effective and some less so. We have dropped the less effective schemes and normally, when we do that, there are howls of outrage from the party opposite. But the noble Lord should recognise that there are different schemes and approaches which can be appropriate for different people.
The noble Lord asked also why there is a difference between the workskill pilot schemes and other government programmes for the unemployed. Workskill pilots will allow people to undertake employment-related education and training under certain conditions and continue to receive JSA. It is not just work

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experience or a jobsearch scheme. As I said earlier, we are providing a wide range of help to the unemployed to reflect what is in fact a wide range of needs.
The noble Lord asked, in terms of contract for work, about the cost of the different schemes. I should tell the noble Lord that £100 million covers the new project work scheme which has about 100,000 places and the contract for work scheme which has about 12,000 places. The size of the private sector commission will depend on competitive tendering. We shall obviously make an appropriate decision in the light of value for money and the bids which we receive from a whole range of different providers.
The noble Lord asked why we are using the private sector and why, in relation to one pilot, we are having two Employment Service schemes and two private sector schemes. Again, I take the noble Lord back to the point about pilots. It is important to try out different schemes. If we tried only two private sector schemes without using the Employment Service, we should not know whether the outcome was as a result of it being a private sector scheme or because of the particular conditions imposed. Therefore, we are running two Employment Service schemes under the same conditions as an extra control.
I now move to the Motion in the name of my noble kinsman Lord Russell. Perhaps I may start by addressing one small but important point. I do not wish to dwell on the point but it is relevant if the noble Earl wishes to press the matter to a Division. I understand that his concern can go wider than that addressed in the Motion but it is important that the House should understand the precise effect of the Motion.
The Motion requests the Government to lay amended regulations omitting the words "cease to be payable" in Regulation 4(2) of the pilot regulations. Regulation 4(2) describes the person to whom a sanction may be applied; that is, a person who has been given or sent a notice in writing by an employment officer advising him that if he fails to participate in project work his benefit could cease to be payable or could be payable at a lower rate. Deleting the words "cease to be payable" from the regulation would merely have the effect that a person who might be liable for a sanction could not have notice sent to him advising him that his JSA could cease to be payable. It would have no effect on the sanction itself, merely his advisory letter.
I am sure that my noble kinsman accepts that that would be a very odd result. In other words, we should still be able to sanction the individual but we should not have the power, as we do at the moment, to write to him beforehand and inform him as to what was to happen.
The basic theme of the speech made by the noble Earl, Lord Russell, is one to which my noble friend Lord Mackay of Ardbrecknish and I have listened on many occasions; namely, that costs rise in other areas simply because people are denied benefit. The noble Earl will know that my noble friend and I simply do not accept that view. We believe that taxpayers are quite right when they take a view that people should not
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receive benefits if they are not entitled to them. If there were no sanctions in benefits—and I was grateful to hear the noble Lord, Lord McCarthy, say that he accepts that there should be sanctions, although we might differ on where they should be—I believe that my noble kinsman would find that costs would rise even faster and far, far more as demand for what one might term "easy benefits" grew and grew.
I return now to the main point. Of course I accept that my noble kinsman is really concerned more generally about our approach to sanctions in JSA. He has raised those concerns on many occasions during the passage through this House of the Jobseekers Bill and in last year's debate over the first project work pilot regulations. We believe that sanctions have always been, and should always be, an important feature of any benefit system to protect the taxpayer from subsidising people who have no good reason to be on that particular benefit or remain unemployed.
Sanctions exist to influence the behaviour of people who are claiming benefit. I should make it clear that we believe that most people claiming JSA do make every effort to take advantage of the opportunities offered to them. However, sanctions reinforce the incentives for the few who might otherwise not meet their responsibilities to take effective steps to improve their prospects of finding work.
It is a basic objective of JSA to underline the conditional nature of unemployment benefits. Jobseekers should be left in no doubt at all about their responsibilities. In the case of project work, and any other mandatory programme, every jobseeker has the conditions of participation fully explained to him or her before being referred to the course or placement. If people fail to take up the offer of a place without good cause—and there are good causes that allow them to do so and there is the appropriate appeal regime—they will obviously lose JSA for two weeks in the first instance. There should be no confusion, no unfairness. JSA sanctions are designed to be a clear and effective mechanism to ensure that jobseekers take the opportunities put before them. But, nevertheless, we believe that it is still essential to provide a safety net for claimants who need special protection. We have made it clear on a number of occasions that we accept that there is a need to continue to pay benefit to claimants whose circumstances, or those of their dependants, mean that they are particularly vulnerable to hardship. But, I repeat, what we do not accept is that there should be an automatic right to these payments, irrespective of the claimants' actions or, rather, inactions.
Where a sanction is applied and hardship would result because of this, vulnerable groups are eligible for hardship payments. We have looked carefully at who should be included within those groups and we believe that those who are vulnerable will fall within the safety net. That means that claimants with families, or claimants or their partners who are pregnant or disabled, or who have a chronic medical condition or are caring for someone will be able to claim JSA on the grounds of hardship. We believe that we have struck the right balance.

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The aim of project work is to help people who have been unemployed for a long time to move off benefits and back to work. Experience tells us that people who have been out of work for a long time may be left behind by the economic recovery that we know is taking place, unless we provide extra help. We also know that very long-term unemployed people can become demotivated. Project work provides an intensive period of jobsearch help and, for people who need it, a period of mandatory work experience. The arrangements for sanctions under JSA are applied to people who are eligible for project work. If someone is referred to project work and fails to attend as required without good cause, his case will be referred, as I said, to independent adjudication and he may lose some or all of his benefit for a period of time. After any sanction period has ended, the client will normally be re-referred to work experience to complete the balance of attendance up to 13 weeks.
We believe that most unemployed people are trying hard to find work and that this programme can help them to do so. But project work may also make it difficult for the minority who do not want to work, or may already be working while claiming benefit, to continue cheating the system in the same way. As I said earlier, I believe that taxpayers are entitled to expect that their money is used to fund benefits only for those who are truly entitled to them.
I hope that the noble Earl would accept that it would be wise for him not to press the Motion. The only advice that I can offer to the House, should he wish to press the Motion to a Division, is that we should reject it.
7.55 p.m.
Earl Russell: My Lords, I thank the Minister for his reply. I agree with the noble Lord in what he said about pilot schemes. They are essential, but enthusiasm for piloting can be overdone. I am reminded of the Emperor Frederick II Hohenstaufen who once got two people and gave them an extremely large lunch. He left one of them to sleep it off and sent the other out hunting. Then, he cut them both open to find out which had digested better. That is a pilot pursued with excessive enthusiasm.
I shall return to the Minister's arguments in a few moments but, first, I should like to thank the noble Lord, Lord McCarthy, for a large part of what he said. The noble Lord dealt with many points specifically on the Government's jobsearch programmes, which I should have made but did not because I did not want to prolong the course of the debate. In his description of searchfare, I was reminded of the remark that the noble Lord made when the Jobseekers Bill was before the House. On that occasion, the noble Lord asked whether the widow's pension was about to be renamed the spouse-seeker's allowance. That question seems even more pertinent today than it did at the time.
Of course, I expected the noble Lord to say what he said about regulations and I shall not argue about that now, save only to say that, warmly though I welcome the constitutional declaration which his party and mine have put out, it still leaves us with plenty to debate within the field of constitutional reform.
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The key point mentioned by the noble Lord, Lord McCarthy, was what you do with refusal to co-operate. The House will have noticed that my Motion does allow for the possibility of a benefit penalty. We will understand this better if we think that what we are getting here in compulsory training programmes and compulsory work programmes is, in effect, a peacetime reintroduction of conscription. There are, of course, cases where peacetime conscription is perfectly justifiable. However, I am not so sure whether this is one of them. But, in principle, it is admissible.
However, there are three points that one must make about the model of conscription. First, when we had it, the sanction employed was not total disentitlement to right to income; it was imprisonment. I believe that that is the more appropriate and less cruel sanction of the two. Secondly, when we had conscription, it was covered by a right of conscientious objection. I believe that to be of some importance. Let us imagine Mr. Daniel Hooper, alias Swampy, being required as a condition of continuing eligibility to work for a road building firm.
Lord Henley: Hear, hear!
Earl Russell: My Lords, I hear the Minister saying "Hear, hear", but I cannot help wondering whether the employer in the road building firm would be quite as enthusiastic as he is. I say that because that might increase his security costs quite impermissibly. In fact, I wonder whether what the Minister is contemplating is the use of compulsion on the employer as well as on the employee and whether that will be quite as widely welcome in his own party as are some of the measures that he is undertaking at present.
The third thing that we had with conscription was a medical examination, as some of your Lordship will remember. Considering the amount of undiagnosed mental illness among people on benefit, I believe that that would be a very welcome precaution to introduce. I also think that some concern ought to be had for the suitability of the task that people are being sent to do. I recently heard of a case from youth training of a young man who was colour blind being required, as a condition of receiving benefit, to become an electrician. I will say only that I hope he does not come to mend my electricity.
The Minister touched on the issue of costs. He said, very fairly, that he did not accept my view. However, I will ask him: how does he know? Does he possess any figures? Does he possess any research study? We all agree that the law may influence behaviour but how can the Minister know how the law influences behaviour until he knows what has happened to people who have been disentitled to benefit? As he and his noble friend have admitted many times, they are in total ignorance on this point.
I shall conclude with the story of an 18th century Member in another place. He had been speaking excruciatingly tediously for three hours. I assure the House that my story does not last that long. At the end of that three hours he was speaking to an almost empty Chamber and began to read the riot act when Edmund

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Burke of all people turned to him and said, "Ah, my friend, you are too late, see you not the crowd has dispersed?" It has and I beg leave to withdraw my Motion.
Motion, by leave, withdrawn.
Jobseeker's Allowance (Workskill Courses) Pilot Regulations 1997
Jobseeker's Allowance (Project Work Pilot Scheme) Regulations 1997
Jobseeker's Allowance (Project Work Pilot Scheme) (No. 2) Regulations 1997
Jobseeker's Allowance (Contract for Work) Regulations 1997
Social Security (Jobseeker's Allowance and Mariners' Benefits) (Miscellaneous Amendments) Regulations 1997
8 p.m.
Lord Henley Lord Henley rose to move, That the draft regulations laid before the House on 28th January, 5th February, 10th February and 13th February be approved [10th and 12th Reports from the Joint Committee].
The noble Lord said: My Lords, I beg to move the above regulations.
On Question, Motion agreed to.
Baroness Miller of Hendon: My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.1 to 8.5 p.m.]

Crime and Punishment (Scotland) Bill
House again in Committee on Clause 5.
On Question, Whether Clause 5 shall stand part of the Bill?
The Earl of Mar and Kellie: I oppose the inclusion of this clause. However, I must begin by saying that I am now more impressed by the hospital direction than I was initially. From what I recall, to attempt to do what a hospital direction does would otherwise require a
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person to be sent to prison although he was obviously psychiatrically unwell. The prison doctor then has to try to arrange for him to be transferred to a local psychiatric hospital until he is deemed psychiatrically fit. In that respect, I believe that a hospital direction has some merit.
However, I believe this direction places the patient and the psychiatric staff in a difficult position. I believe it will lead to decisions being made by patients and the staff that will be counter-productive. I suspect that patients will be motivated to avoid appearing to have recovered and that staff will be reluctant to discharge a patient who will then have to go to prison. Bed blocking is the likely outcome. That ought not to be the case. If prisons were the places we would like them to be this would not be a problem. A prison is a difficult enough place to survive in at the best of times. A recent psychiatric patient is a vulnerable prisoner and transfer to prison is an unlikely place for such a person to thrive in. Patients normally have enough trouble readjusting to their own local community.
In prison a prisoner with a psychiatric history is likely to be sorely taxed by some other prisoners and may not have the wit to stay behind his door. That denial of association is in itself an injustice. For those reasons I oppose the inclusion of the clause.
Lord Mackay of Drumadoon: I am grateful to the noble Earl for acknowledging that our discussions this evening have to some extent persuaded him that there is merit in the clause. For that reason it may not be necessary for me to say too much more, and certainly not to rehearse the arguments we discussed earlier.
However, it may be helpful to remind the Committee that at the present time, as I explained earlier, there are occasions when prisoners sent to prison by the courts require to be transferred to hospital and indeed require to be transferred by order of the Secretary of State under Section 71 of the Mental Health (Scotland) Act 1984. If, having had treatment in the hospital, they are fit to be discharged from hospital, they can go back to prison if the sentence has some way to run.
Information available suggests that about 60 prisoners a year are transferred to hospital by the Secretary of State. About 20 a year are transferred back to prison. The remainder tend to remain in hospital until they are discharged into the community on the expiry of their sentence. That indicates that, while we are dealing with difficult problems as regards individual prisoners, there are not a huge number affected by the current provisions. We anticipate that that will apply when the new power comes into force. We expect that the courts will use this power only sparingly as an alternative option to the present powers.
The noble Earl mentioned the problem of bed blocking. It could arise for more than one reason. One suspects that trained and experienced psychiatrists will be aware in most instances of the prisoners who are feigning continued mental health problems, although, as the noble Lord, Lord Macaulay, mentioned earlier, there are occasions when psychiatrists are misled by what the patient says to them. We do not believe that there will

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be many such instances. I see force in the comments made during the English Bill debates that psychiatrists may have a reluctance to send prisoners back to prison for fear of undoing the good that treatment has brought about. However, I am sure that when the provisions come into force psychiatrists will be aware that to work properly they have to respect the intentions underlying the legislation; that is, to give this additional option to that of the hospital order which currently exists.
We hope that people made subject to a hospital direction in addition to a prison sentence will not require to spend too long in hospital before they serve the rest of their sentence, and that bed blocking—it is undoubtedly a problem which will have to be borne in mind—will not prove to he as much of a problem as is suspected at present.
I hope that those further remarks have served to convince the noble Earl that the clause should stand part of the Bill and that he will not insist on his opposition to it.
Lord Monkswell: Before the noble and learned Lord sits down, for the benefit of the Committee perhaps I may ask him about some other statistics. He mentioned the number of prisoners transferred into a secure mental institution on the direction of the Secretary of State. Can the noble and learned Lord advise the Committee how many are subjected to hospital orders on the direction of the court without the prison option introduced by the Bill?
Lord Mackay of Drumadoon: I do not have to hand the information that the noble Lord seeks. It is part of the statistics that are published regularly. I shall ensure that copies of the relevant section are sent to the noble Lord.
Lord Thomas of Gresford: Can the noble and learned Lord the Lord Advocate explain what is wrong with the present system? As I understand it, if a person sent to prison is mentally ill, under an ordinary hospital order he can be sent to a hospital where he will remain and be treated. I fail to understand why it is necessary for the court to become involved in making an order of this type at the very beginning. I do not understand why it cannot be left in the hands of the medical people who look at a prisoner at a time when it is thought he needs assistance of that kind. The undoubted effect of the hospital direction order now proposed is that the psychiatrist becomes the gaoler. He determines when his patient returns to prison. A person who has been inside a psychiatric hospital and is on the point of recovery is at his most fragile at that point. He is to be sent back to prison without the support that he could expect to receive within the community. I have yet to hear the case made for giving this power to the courts to determine these issues at the stage of sentencing.
8.15 p.m.
Lord Mackay of Drumadoon: I hope that the noble Lord will forgive me but I do not recall whether he was in the Chamber when I discussed the matter earlier and referred to chapter 13 of the White Paper which deals
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with this option. I cannot speak with any experience or knowledge of the position in England. But undoubtedly there are cases in Scotland where, when an accused person comes to be sentenced having been convicted of a serious crime which would undoubtedly warrant imprisonment as opposed to any other disposal, the issue arises as to whether the accused man requires medical treatment. With a measure of regularity, defence counsel draw this to the attention of the court. All the court can do at present, if it is not minded to impose a mental health order as frequently the court is not minded to do, is to indicate that the information presented to the court about the mental illness of the accused will be forwarded to the prison authorities. They will take such action as they deem appropriate to arrange for the prisoner to receive psychiatric treatment, whether as an outpatient while still in the prison, or by being transferred to hospital whether or not under the direction of the Secretary of State.
This perceived weakness in the sentencing procedures in Scotland was examined prior to publication of the White Paper. As the White Paper records, the Government consider that there is a case for providing the court with a combination option. It will allow the court to recognise the offender's need for immediate hospital treatment yet also specify the duration of an overall custodial disposal. The Department of Health working group on psychopathic disorders chaired by Dr. John Reed recommended the possibility of such a hybrid order being looked at for psychopathically disordered offenders. Such an order might also be appropriate, for instance, for offenders who were sufficiently ill to warrant hospitalisation at the time of sentence but who were not ill, or were much less so, at the time of commission of the offence.
It is clear from the consultation that the Government have undertaken that this is a perceived gap in our sentencing options. There is support for filling that gap. Equally, there are certain practical problems. I recognise the force of what was said earlier about the problems that psychiatrists may face in individual cases. However, the perception is—in my respectful submission, it is valid—that because the hospital order hands over to the hospital authorities in many cases the decision about when the prisoner is released into the community, that may dissuade the court from following that route, while the alternative option is a simple prison sentence without the court having any input in a binding sense as to whether or not treatment is received. That is the gap which this provision seeks to We are satisfied that the proposal has sufficient support to merit the provision in this Bill.
It is to have broader effect in Scotland than in England. That is because it appears to have the support which we feel is necessary to take it forward. It is unfortunate if an individual case gives the impression that the psychiatrist is a gaoler. That is not the intention. I hope that with experience of the provision that will not prove to be the case.
Lord Thomas of Gresford: I am most grateful to the noble and learned Lord the Lord Advocate for his very full and complete exposition of the reasoning behind the

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proposals. Is the weakness that is identified a weakness that the public may feel that a hospital order is a soft option and therefore a sentence of imprisonment should be passed to express public displeasure in response to a particular crime regardless of the mental condition of the individual? Is that the weakness that is being pinpointed, or is there some other weakness that I have missed?
Lord Mackay of Drumadoon: No, that is not the weakness on which I seek to base this proposal. It is the fact that the court, in dealing with such offenders, is dealing with people convicted on indictment of serious offences for which a measure of punishment is appropriate to take account of the criminal conduct of which the accused has been convicted and offences for which a measure of public protection is required against the consequences of reoffending. There may be a perception on the part of some members of the public that a hospital order is a soft option; but it is the perception of those involved in the criminal justice system, whether as lawyers or other practitioners, that in some instances it is not an appropriate disposal for prisoners convicted of serious violent offences who have mental illness but who require to be removed from society for both punishment and public protection purposes. So it is not merely a question of pandering to any concern on the part of the public which brings this matter forward. It is a concern expressed by many practitioners in the field—lawyers in particular—that there is a gap that needs to be filled. We believe that this is the way to fill that gap.
Clause 5 agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 96:
After Clause 5, insert the following new clause—
SUPERVISED ATTENDANCE ORDER: CONSENT
(". At the end of paragraph 1(1) of Schedule 7 to the 1995 Act insert "or
(c) the offender consents".").
The noble Earl said: This amendment appears in a rather strange place on the Marshalled List; namely, between clauses about mentally disordered offenders. The amendment is concerned with supervised attendance orders. It is aimed at restoring the principle of having an offender's consent to a supervised attendance order. This was incorporated in the 1990 legislation but withdrawn in subsequent legislation in 1995.
Supervised attendance orders are part of a range of community sentences which are both useful and essential. Along with probation and community service, they are a good opportunity for the offender to begin to move on from offending. Counselling and advice are the key. But the offender must be ready for it—that is, beginning to doubt the wisdom of his criminal career. No social work report is required where a supervised attendance order is to be made. That can result in an order being made on an unwilling offender who would rather go to prison. There are some; it is easier than
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compliance and perpetual hassle about breaching the order. The social work department has to serve the order, explain its effect, and get the person to sign the back of the order to that effect. Appointments are then made for the offender. Any failures to attend have to be witnessed and recorded. Breach proceedings have to be started and, in the event of a contest in court, a proof, with witnesses, is required. I assert that that process is unnecessary when an offender could have indicated his unwillingness and progressed to the alternative sentence, which would have presumably have been imprisonment. Similarly, an offender planning, for example, to move to England for a fresh start, possibly with relatives, could be given the opportunity to say so. I believe there is no equivalent in England of the supervised attendance order. I beg to move.
Lord Mackay of Drumadoon: As the noble Earl will appreciate, supervised attendance orders were conceived and introduced by the present Government as an innovative means of providing the courts with an appropriate alternative to a custodial sentence for those who could not pay their fine and were therefore in default of the order to pay the fine and faced a term of imprisonment in default of that payment. They are designed to be a constructive alternative to sending the accused into custody for non-payment. Time and again we hear the cry that people who refuse or who are unable to pay fines should not be sent to prison for very short periods of time thereby clogging up the prisons with people who ought not to be there.
Were a choice to be offered for this disposal it would be the choice of either accepting the attendance order or of going to prison. We do not believe that that is an appropriate choice to give an offender. If he is brought before the court, it is wholly unrealistic to put that forward as a sensible option to which a responsible answer could be given which would effectively veto the right of the court to impose this order if the accused said so.
We are in an entirely different field from other community based disposals such as probation and community service orders where full co-operation is essential and it is reasonable to seek consent. In this situation a fine has been imposed and has not been paid—normally because an accused cannot pay it. Notwithstanding any views expressed by the accused, which can no doubt be articulated, we do not believe that the court should be precluded from seeking this as an alternative to sending a possibly young and impecunious offender to prison just because that was his stated preference. We do not believe that he should have that right. We do not believe that it would be constructively used were it to be available. Therefore, we do not find it possible to accept the amendment.
The Earl of Mar and Kellie: I hear what the noble and learned Lord says. In logical terms he is probably right. However, I recall leading a community service by offenders team. If everybody was reasonably content the work squad could get on with things; if anybody was unhappy, everybody became unhappy. The amendment

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was suggested by CoSLA. I brought it forward because I recognise that there is nothing worse than having on such a scheme someone who is unwilling and who lowers morale, which is always shaky enough. However, having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 97:
After Clause 5, insert the following new clause—
SUPERVISED ATTENDANCE ORDERS: ALTERNATIVE DISPOSALS
(" .—(1) Schedule 7 to the 1995 Act (supervised attendance orders) shall be amended as follows.
(2) In paragraph 4(2) at the beginning insert "Subject to sub-paragraph (4) below,".
(3) After paragraph 4(3) insert
"(4) In the application of sub-paragraph (2)(a) above to an order made under section 236 of this Act, the court may alternatively revoke the order and impose such other disposal as it could have made had it not imposed a fine or a supervised attendance order."
(4) In paragraph 5(1), at the beginning insert "Subject to sub-paragraph (1A) below,".
(5) After paragraph 5(1) insert—
"(1A) In the application of sub-paragraph (1) above to an order made under section 236 of this Act, the court may alternatively revoke the order and impose such other disposal as it could have made had it not imposed a fine or supervised attendance order.".").
The noble Lord said: On the face of it this is a rather convoluted amendment tabled to elicit the Government's response to its terms and so that those who are involved with young people can consider whether the legislation should stand as it does at the moment. The result may very well be that a young person will end up in prison anyway as a result of his inability to pay a fine. Given the present restrictions on 16 and 17 year-olds, who do not receive any money from the Government, there is no way that they could possibly pay a fine and they will therefore end up in prison, whereas an adult might very well not end up there. That is the objective behind this proposal. I beg to move.
Lord Monkswell: I rise to support my noble friend on this amendment. Following the debate on the previous amendment, it is probably worth pointing out that, as I understand it, if the offender does not consent to a supervised attendance order in the manner that the noble Earl, Lord Mar and Kellie, suggested, it would be within the offender's power to breach the requirements of the supervised attendance order and, as a result, go to gaol. My noble friend's amendment provides another route to dispose of the problem and it may be useful for the Government to accept it.
8.30 p.m.
Lord Mackay of Drumadoon: Members of the Committee who are interested in this topic will be aware that it was raised earlier in the passage of the Bill and the response which the Government gave on that occasion is believed to be as valid today as it was then.
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At present the relevant legislation as it applies to 16 and 17 year-olds allows the court, when dealing with any failure to comply, to vary the length of the attendance order or impose a custodial sentence. Before imposing a supervised attendance order on this age group, the court requires to have concluded that a fine—not a community-based disposal such as probation—is the appropriate disposal for the offence.
In those circumstances it will impose the attendance order either in default of the fine or on the basis that the offender is unlikely to have the capacity to pay the fine. In such a case the court will recently have concluded that the appropriate new order disposal is a fine but that the offender cannot pay the fine. We find it difficult to see what could have occurred in the interval between the imposition of the order and the offender's failure to comply which would enable the court to come to the view that some other disposal is now appropriate. For that reason we do not think it appropriate to accept changes to this aspect of the legislation.
A pilot scheme in respect of this age group will commence in Dundee in April this year. It is suggested that there may be some scope for fining offenders who fall within it and I would not demur from that suggestion. We believe that there will be value to be gained from this pilot scheme. We shall look at the results carefully and they will no doubt be made public in due course.
I recognise that the purpose behind the amendment is to reduce the risk of an early custodial sentence for members of this limited age group. However, we are optimistic that, by funding this project in Dundee targeted on young offenders who are made subject to these orders and firmly chasing them up and ensuring that their performance of the order is monitored, early indications of a possible breach will be spotted and action taken to prevent it.
I hope that, on an assurance that the Government are alive to the problems which offenders of this age face and are doing something positive to examine them in greater detail, the noble Lord will be persuaded that it is not necessary to insist on the amendment at the present time.
Lord Macaulay of Bragar: I said at the outset that this was a rather convoluted amendment. At this time of the evening it is rather difficult to follow the explanation in response by the noble and learned Lord the Lord Advocate. It might be better to leave it until tomorrow to see the Official Report. No doubt what the noble and learned Lord said will be looked at with interest. It is not without significance that there is a ship in the harbour at Dundee called the "Discovery". Perhaps the Government will take a voyage of discovery and in due course report back to the House on their findings. I hope that they find a pilot when they get to Dundee. We shall see how it works out. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Effect of hospital direction]:
[Amendment No. 98 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 99:
Page 15, line 23, leave out from ("appropriate") to end of line and insert ("and before making such a direction the Secretary of State shall consult and obtain reports from—

(a) the managers of the hospital concerned:

(b) the medical practitioners who furnished their reports to the court under section 59A(3)(a) of this Act:

(c) the mental health officer who appeared before the court pursuant to section 59A(d) of this Act; and

(d) any other person who, in the opinion of the Secretary of State, might be appropriate in the circumstances.

(3A) The Secretary of State shall not be entitled to name a state hospital when making such a direction.").
The noble Lord said: The objective behind the amendment is to retain some measure of control over what happens to an offender who has been dealt with by the court and who for some reason has to be moved from one hospital to another. The amendment does its best—it may not be a very good best—to paint a picture of the people who should be consulted before any change is made in the patient's status and to give the patient a measure of protection to ensure that any good work that has been done is not undone by moving him unnecessarily from hospital to hospital. I beg to move.
Lord Mackay of Drumadoon: We consider that this amendment is inappropriate. At an earlier stage the Government accepted proposals from the Opposition that the maximum time it must take to convey a person from court to hospital is seven days. We accept that, if a person is in immediate need of hospital treatment, they should go to hospital as quickly as possible. However, we must accept that within that seven-day period certain emergencies could arise in relation to the hospital concerned: a fire, a medical epidemic of some sort or a serious incident involving patients which would make it impracticable to admit the person as originally planned. In such an event the priority should surely be to get the prisoner to hospital so that the treatment can start, even if that involves going to a hospital different from that originally specified. If the Secretary of State had formally to consult and obtain reports from at least three more people, it is unlikely that that could be done within seven days. Pending its being done, the person would in any event require to remain in limbo, presumably in gaol, and their access to hospital treatment would be delayed.
The Opposition cannot have it both ways. If Members of the Committee are satisfied, as I am sure they will be, that the priority is swift admission to hospital to start treatment, some flexibility is required. I therefore hope that, to take care of the rare events that I have indicated, the noble Lord will be persuaded to withdraw this amendment.
The Earl of Mar and Kellie: I should like to return briefly to a point we were discussing before the dinner break; namely, the mental health officer's involvement. It strikes me that we are bringing a bit of English practice into this. In Scotland the normal process has been that the Scottish ambulance service takes people to hospital and the mental health officer—who is, after all,
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a specialist social worker—is not required to undertake the actual transport, though he or she is certainly responsible for safeguarding the patient's interests in the community.
I am worried that we are going down the English route, which ends up with social workers having to transport people in their own private cars. I shall not bore the Committee by reminiscing on my exploits with the social services department in Sheffield, but I believe that it is better that social workers should not have to transport such prisoners in private cars.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for his explanation concerning what I have already described as a very delicate area of life. The main objective is to protect the person, who is not, to say the least, in a very fit or stable position. The noble and learned Lord said that these Benches could not have it both ways. We do not look at the matter in that way at all.
This is a specialist area in which, to be honest, I do not have any particular expertise—indeed, I doubt whether many Members of the Committee have such expertise. As laymen, we can only do our best to protect the individual from himself and protect society from the individual. I shall read with interest what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sewel Lord Sewel moved Amendment No. 100:
Page 16, line 8, at end insert—
("(6) A patient shall not be remitted to prison in accordance with subsection (5)(a) above until and unless—

(a) the case has been referred back to the court that imposed the hospital direction; and

(b) the court is satisfied that the remittance to prison would not be injurious to the patient's mental health.

(7) In order to determine the impact of the remittance to prison on the patient's mental health, the court shall consider the written or oral evidence of two medical practitioners (complying with section 61 of this Act).
(8) Where a court is satisfied under subsection (6)(b) above that the remittance to prison would be injurious to the patient's mental health, the court may revoke the hospital direction and—

(a) impose a hospital order (with or without a restriction order); or

(b) impose no further penalty.""

The noble Lord said: This is perhaps one of the more important amendments that we have discussed recently. Its effect is quite clear. It is to ensure that a person subject to a hospital direction is only transferred from hospital to prison when the sentencing court is satisfied that his mental health will not deteriorate as a result of admission to prison.
This is a very difficult and sensitive area. It concerns people whose mental health is such that they require help from the hospital services but who have achieved a state in which it is appropriate to move on to the more punitive aspects of the disposal. The amendment ensures that the decision to admit to prison lies with the court. That is important. That does not endanger the patient-doctor relationship. One can imagine a situation

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in which an offender has developed a positive relationship with a doctor. When the possibility of that person getting better brings with it a punitive element, the decision should clearly be removed from the doctor-patient relationship and be referred back to the court.
Basically and fundamentally, the argument behind the amendment is that people should not be punished for mental disorder. They should be treated for mental disorder and not punished. The amendments are also designed to guard against the risk of transferring to prison offenders who would more appropriately continue to receive hospital treatment.
The amendment seeks to reduce the risks of persons being moved to prison and subsequently becoming ill as a result of the transfer. There is absolutely no point in bringing about a transfer from hospital to prison if that endangers the mental health of the offender. That is a legitimate cause for concern. We do no one any service by going down that path.
After all, what is the purpose of providing treatment? It is to improve the mental health of a patient. If a return to prison of itself would jeopardise the gains that had been made as the result of quite extensive hospital interventions in many cases. That is surely not in the public interest.
The amendment would provide a safeguard, through the independent scrutiny of the court, against the possibility of inappropriate or premature transfer brought about by a shortage of bed spaces or disruptive patient behaviour. Such subsequent changes in the way in which the offender is treated should come back to the court for decision and not be subject to a routine process. I beg to move.
8.45 p.m.
Lord Mackay of Drumadoon: As the noble Lord, Lord Sewel, will be aware, these amendments were discussed in another place. At that time it was indicated that they were not acceptable to the Government, for reasons which I should explain to the Committee. We are not attracted by the proposals because they appear to be based on the assumption that hospital doctors will recommend to the sheriff, or indeed to the Secretary of State, a course of action which would run contrary to the patient's best interests; in other words, a course which would be injurious to his or her mental health.
We are dealing with these issues in the context of hospital direction orders, but they arise when prisoners are subject to a transfer from prison to hospital because they have become ill and are then transferred back to prison. Perhaps I should explain what is done on such occasions.
The Committee will appreciate that if the illness is recovered from or is sufficiently treated while the offender's sentence of imprisonment is still running and the patient does not require to remain in hospital, the only exit route from hospital is back to prison. But at the present time that can take place only when the Secretary of State is satisfied that certain criteria set out in the 1984 Act have been fully met. Those criteria are to be found in Section 74(2) of that Act. They are either
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that the person is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment or that it is not necessary for the health or safety of the person or for the protection of others that he should receive such treatment. In either case, the Secretary of State also requires to be satisfied that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.
Before the Secretary of State makes an order, very detailed consideration is given to it. The condition of the patient will be thoroughly and painstakingly assessed by the doctors in the hospital in which he is detained. It goes without saying that no recommendation for the prisoner's return to prison will be made unless the doctors are satisfied that the statutory criteria to which I referred have been met. I am sure that the Committee will be satisfied that it would be difficult to suggest otherwise.
Furthermore, any recommendation from the hospital for return to prison is at present considered by the Secretary of State's own psychiatric adviser. I hope that the Committee will not misunderstand what is meant by that reference. I am sure that my right honourable friend would not do so. The psychiatric adviser requires to be satisfied also that the relevant criteria will be met before transfer to prison is authorised.
Our experience has been that the system has worked very well. That is an indication of the thoroughness of the procedure and the care taken by all psychiatrists who have occasion to handle prisoners who suffer from mental illness susceptible of treatment. I have already mentioned earlier this evening that there are some 60 transfers a year from prison to hospital, but a much smaller number of prisoners are transferred in the other direction, being somewhere in the region of only 20 every year. Most prisoners who leave prison to go to hospital remain there and are released direct into the community on expiry of their sentence.
We believe that that demonstrates the rigorous attention which those involved in the field of psychiatric health pay to treating those people. We doubt whether it would be appropriate to give an appeal by the patient to the sheriff for the reason that it would involve challenging the view of people who have had day-to-day care of the patient while in hospital.
However, there are other fundamental difficulties with what is proposed. If the sentencing court originally considered it appropriate to pass a sentence of imprisonment and at the same time to make a hospital direction, it would be wrong to go back to the court some months or even years later and effectively invite the court to reconsider the matter. The procedure in dealing with sentence is that the sentence is imposed by the trial court, subject to review by the Court of Appeal. It is the latter court which should set aside the original sentence, not the original sentencing court.
I hope the Committee will be satisfied that this issue has been carefully considered. The proposal is a new one to fill the gap in the scheme of sentencing, as I mentioned earlier. The alteration to our proposals spelt out in the amendments would not be of value; they

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would involve an unnecessary addition to the procedure. We have the fundamental objection that the court, some years later, would be reviewing its own decision or possibly one sheriff or one High Court judge reviewing the decision of another sitting in isolation. There is no reason to believe, from the history we have of hospital orders and the operation under Section 74(2) of the 1994 Act, that the psychiatrists who treat such individuals are not performing a splendid service. For that reason, I invite the noble Lord to withdraw his amendment.
The Earl of Mar and Kellie: Perhaps I can make a brief observation. We have been talking about the people who are transferred from prison to hospital under Section 79. In fact there will be even fewer who are eligible for a hospital direction because of the fact that they have to be psychiatrically ill at the point of conviction rather than developing a psychiatric illness during their sentence. Therefore, the numbers involved will probably be in single figures.
Lord Sewel: Perhaps I can say at the outset that on this side of the Chamber it is enormously consoling to know that the Secretary of State for Scotland has psychiatric advisers. Many of us thought that that was an omission and we are glad to see that it has been rectified. I rest more easily in my bed at night knowing that, as I am sure do most of the population of Scotland.
Lord Mackay of Drumadoon: Perhaps I can intervene to invite the noble Lord to convey to Mr. Robertson that it is my belief he will never need a psychiatric adviser.
Lord Sewel: I am sure that he will never need a psychiatric adviser. I have the benefit of being married to a clinical psychologist, who gives me all the advice I need.
The outstanding issue is that we have some assurance that when it comes to the point of transfer from a hospital to prison, the effect of that transfer on the mental health of the individual concerned will be adequately taken into account when the transfer is approved. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Remand of persons suffering from mental disorder to private hospital]:
On Question, Whether Clause 7 shall stand part of the Bill?
The Earl of Mar and Kellie: I seek the deletion of Clause 7. I have long held the constitutional view that citizens being detained by the state should be looked after by the state. The use of private contractors may be appropriate where the patient can give consent. But the situation in Clause 7 is far from that.
I shall be interested to hear from the noble and learned Lord the Lord Advocate how many private hospitals are ready to receive psychiatric patients from
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custody. Also, can he say why the National Health Service in Scotland has been allowed to run down to the point where it cannot receive those few who are likely to be transferred on remand?
Lord Mackay of Drumadoon: Clause 7 is a short and simple clause. It is designed to remove an anomaly in the Mental Health (Scotland) Act 1984. At present Section 71 of the Act enables a sentenced prisoner to be transferred to either a National Health Service hospital or a private hospital registered under Part IV of the Act. That indicates that Parliament has approved private hospitals being used for that purpose. Section 70, however, prevents remand prisoners from being transferred to a private hospital. That seems an illogical and unduly restrictive distinction to make. Decisions on the appropriate hospital location for an individual should depend on his particular circumstances, including the level of security required, not on whether he is a remand or sentenced prisoner.
Indeed, there may well be an argument that it would be contrary to the interests of the prisoner for him to be detained in one hospital pending the trial and sentence and then to be moved to another to begin the sentence. If he is to be in hospital because he suffers from a mental illness which justifies such detention, there is force in the argument that he should remain in the same hospital throughout.
The noble Earl will be aware that any private hospital used under Section 71 of the Act requires to be registered in accordance with the conditions laid down by the Secretary of State. Those include conditions relating to the security appropriate for people being detained, the levels of medical and nursing staff, the standards of treatment and so forth.
My understanding is that there are no private hospitals currently registered under Part IV of the Act at the present time, nor are any applications under consideration. However, the view has been taken that the anomaly exists. For that reason I hope the noble Earl will be satisfied that it is sensible to amend the legislation to remove the inconsistency so that in a specific case, if private hospitals come on stream, it will be sensible to allow them to treat offenders from the moment they are arrested and awaiting trial through to the period when their detention in a hospital rather than prison is deemed to be no longer necessary.
Clause 7 agreed to.
Clause 8 [Power to specify hospital unit]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 101:
Page 18, line 15, after first ("unit") insert ("provided that the hospital managers have confirmed to the court that they will admit the person to such unit").
The noble Lord said: This is a fairly simple amendment which is self-explanatory and continues the theme which we hope we have managed to portray from this side of the Committee; that is, that we are looking to the protection of the individual and of the public and to put as few people at risk as possible. The amendment seeks to insert the words,

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"provided that the hospital managers have confirmed to the court that they will admit the person to such unit".
It may appear to be a fairly basic and perhaps unnecessary amendment. But the reasoning behind it is this. Before a potentially disruptive person is sent to a hospital, it should be cleared with the managers of the hospital, first, that that person is best in that hospital; secondly, that he or she can be accommodated in that hospital without disrupting the regime; thirdly, that the hospital is satisfied that it has the provision to keep the "patient" in the hospital for his own safety and also for the safety of the public.
On the face of it, it may appear to be an unnecessary amendment. However, if the Lord Advocate and his advisers give it a little thought, they will see that it adds to the protective shelter we are trying to give to the patient and the public. With that introduction, I beg to move.
9 p.m.
Lord Mackay of Drumadoon: I appreciate what lies behind this amendment. We had occasion to look at the point it raises before when the Bill was in another place. It is essential that before making an order committing a person to hospital the court is assured of the availability of a bed in conditions which match the patient's medical requirements. Where either a hospital order or direction has been made under Sections 57, 58 or 59A of the 1995 Act, the court will require to be satisfied that a bed will be available in the hospital concerned. The period is currently within 28 days of the making of the order, but in the future, in the light of the point I mentioned a few moments ago about the seven-day period, that period will be shortened from 28 to seven days.
Before a court makes an order it is clearly appropriate that it should be assured of this availability. That is what happens at the moment. The current practice will be reinforced in the future by virtue of the provisions of Clause 9 of the Bill which require that one of the medical practitioners whose evidence is to be taken into account under Sections 53, 54, 57, 58 and 59 of the 1995 Act must be employed at the hospital concerned—the hospital to which it is proposed to admit the offender. Such a medical practitioner is therefore uniquely placed to give the court any assurance it may seek. My right honourable friend the Secretary of State would never make such a transfer under the existing provisions of the 1984 Act unless he was so assured.
This issue is addressed in codes of practice which are currently being revised in terms of the procedure laid down in Section 119 of the 1984 Act. Therefore I am in a position to give an assurance to the Committee that the importance of bed availability is already addressed in the Bill and in the legislation in the ways I have indicated. It is addressed in the code of practice. It is certainly not being ignored. In my experience it is a matter which is always touched on when mental health orders are made, whether in the civil or the criminal courts. With those assurances, I hope the noble Lord will be satisfied that he can withdraw his amendment.
Lord Macaulay of Bragar: I am grateful to the Lord Advocate for his full explanation of the position in
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relation to these unfortunate individuals. At the moment at least I am satisfied with that explanation with regard to this difficult field of human relationships. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 [Medical evidence in relation to mentally disordered offenders]:
Lord Sewel Lord Sewel moved Amendment No. 102:
Page 19, line 5, at end insert ("and shall be approved for the purposes of this section by a Health Board as having special experience in the diagnosis or treatment of mental disorder: and the other recommendation shall, if possible, he given by the patient's general practitioner or another medical practitioner who has previous acquaintance with him.";").
The noble Lord said: The effect of the amendment is to ensure that one of the doctors recommending hospital admission will be a qualified psychiatrist and that the other, if possible, should be the accused's GP or another doctor who is familiar with the individual concerned. The reasoning behind the amendment is obvious. In making such an order the court needs the best possible information before deciding whether or not to make a hospital direction. A properly qualified psychiatrist is the kind of person to whom one would turn for advice and to inform the court.
The amendment ensures that the doctor giving the advice to the court in such circumstances is someone who is properly qualified. I would accept wholeheartedly that in the normal course of events that would be the case, but we want to make it clear in the Bill that appropriate qualification is a requirement for someone who is giving such fundamentally important advice to the court in this delicate and difficult area. In addition, the patient's own doctor is the person best placed to have knowledge of how the individual has behaved in the past and indeed whether hospital would be the most appropriate place for the individual to be treated.
The amendment mirrors the requirement for medical reports before a patient can be admitted under the civil detention proceedings of the Mental Health (Scotland) Act 1984. It is appropriate that those requirements under civil detention are recognised as we move into the area of criminal law. The amendment seeks to ensure that the court is in a position to receive the best, most helpful and most appropriate advice in making what I think we all freely recognise is often an extremely difficult and sensitive decision. I beg to move.
Lord Mackay of Drumadoon: I understand what lies behind the amendment. However, having reflected further on it, we remain of the view, as we expressed in another place, that it is not a sensible alteration to the clause.
Perhaps I should remind the Committee that before a hospital direction could be imposed, in terms of the new Section 59A(3)(b) as set out in Clause 5, medical practitioners will be required to,
"describe the person as suffering from the same form of mental disorder, being mental illness or mental handicap, whether or not he is also described by either of them as suffering from the other form".

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The proposal is that the medical practitioners should include someone who has special knowledge and experience of mental disorder and is approved for this purpose by the health board, while the other shall, if possible, be the patient's general practitioner or some other medical practitioner who has previous acquaintance with him. In other words, if it is possible to seek the assistance of the general practitioner, that requires to be done in preference to obtaining the assistance of another psychiatrist.
We are dealing here with mental illness, which, as we have discussed earlier today, is not always easy to diagnose and is certainly not always easy to treat. We believe that it would not be right to involve, to provide the second opinion, the accused's general practitioner or some other medical practitioner who did not have special experience of mental illness. The subsection that I read from Clause 5 stresses how both practitioners have to come to the same diagnosis of mental disorder. If we had a situation where general practitioners were becoming involved in this work, no matter how experienced they were in the work of general practice, where undoubtedly people with mental illness problems have to be treated from time to time, we believe that there would be more scope for disagreement, which would not be in the interests of the accused.
It is important to bear in mind that these orders concern people who are going to be admitted to hospital, where they are going to be treated not by general practitioners but by psychiatrists with special experience in the field. For that reason, we believe that both reports should come from those who have that experience. On that understanding, I hope the amendment will be withdrawn.
Lord Sewel: I clearly recognise the noble and learned Lord the Lord Advocate as having some power in his arguments on this occasion. On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
Clause 10 [Increase in maximum period of interim hospital orders]:
On Question, Whether Clause 10 shall stand part of the Bill?
Lord McCluskey: Clause 10 seeks to make an amendment to Section 53 of the 1995 Act, which provides or makes it competent for the court in certain circumstances to make an interim hospital order. That is an interim hospital order in respect of an offender—that is to say, a person convicted in the High Court or in the sheriff court; or charged in the latter court, but not convicted although the sheriff is satisfied that he committed the act or made the admission charged; or remitted to the sheriff court from the district court under broadly similar circumstances.
That is the offender. If he is suffering from a mental disorder within the meaning of Section 1(2) of the Mental Health (Scotland) Act 1984, an interim hospital order may be made. The provisions of subsection (6)
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indicate that that order at the present time shall be for a period not exceeding 12 weeks and it may be renewed for periods of 28 days at a time, but no such order is allowed to continue in force for more than six months in all.
That is the general background to this particular clause. What is now proposed is that these interim hospital orders should be able to be lengthened. I ask Members of the Committee to note the word "interim". We are talking about a relatively short-term thing. It is something which is contemplated and suggested in paragraphs 13.6 and 13.7 especially, of the White Paper. Paragraph 13.6 talks about a "hospital direction" to be attached to a sentence of imprisonment at the same time as imposing any sentence. Paragraph 13.7 states,
"It is also proposed to extend the maximum duration of the interim hospital order from 6 to 12 months and to extend its use so that it might also be a precursor to the making of a hospital direction".
So we have the interim order being used as a precursor to the making of a hospital direction, but after the conviction of a person. So what is now contemplated is that a person is convicted and the court's decision on whether or not to sentence him may be postponed for 12 months. That is clear from the last few words of paragraph 13.7, which state that the making of such an order,
"might result in a clearer picture and prognosis of the person's condition as a better basis for informing the court's ultimate decision on disposal".
My difficulty is to reconcile that with new Section 59A which is to be added as a result of Clause 5 of the present Bill. That relates to the making of a hospital order in addition to any sentence of imprisonment and to Section 53(4) of the 1995 Act, which states that, where a court makes an interim hospital order, it shall not make any other order for detention.
I find it slightly difficult to understand how the sections and new sections will work together. I am particularly concerned about the fact that at the moment there may be three renewals, each of 28 days, effectively taking the three months up to six months, but the new provision will permit a further six sets of 28 days, thus effectively raising the period to 12 months. I should like to know the justification for taking what is essentially an interim measure and turning it into a measure that might be effective for 12 months. I should like the Government to explain the justification for that before I consider my position further.
9.15 p.m.
Lord Mackay of Drumadoon: The justification for the proposal is to give further flexibility to the sentencing court in cases where the mental illness of the accused is an important factor.
As the noble and learned Lord pointed out, the proposal was discussed in the White Paper. That White Paper records the fact that in its current form the interim order is not extensively used at present prior to the making of a hospital order, but that greater use of the interim hospital order and the period of initial assessment and treatment which it permits might result

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in a clearer picture and prognosis of the person's position as a better basis for informing the court's ultimate disposal.
We consider that the extension is justified when dealing with particularly complex cases. It will give doctors and others involved more time to observe and report on the individual for the benefit of the court before any final decision is taken.
The consultation exercise did not result in anybody disagreeing with the proposal. Furthermore, the Mental Welfare Commission, which was consulted, was very definitely in favour of it.
The noble and learned Lord quite properly raised the point that the provisions would extend the period during which an accused person would be in hospital under an interim hospital order pending imposition of sentence. However, as I read the provisions of Clause 11, which will amend Section 210 of the 1995 Act, that period would be taken into account in assessing the period of any sentence of imprisonment if the ultimate disposal was to be imprisonment linked with a hospital direction. If, on the other hand, the ultimate disposal was to be a hospital order, the matter would be academic. If any question of imprisonment arises—whether in isolation or in tandem with a hospital direction—there would be no question of any double jeopardy in the sense of the accused person spending longer in custody than might otherwise be the case.
As I have said, the proposal has received support. The Mental Welfare Commission, which has a statutory duty to have regard to the mentally ill in Scotland, is firmly in favour of it. Therefore, I hope that with that explanation the noble and learned Lord will withdraw his opposition to the Question That Clause 10 shall stand part of the Bill.
Lord McCluskey: I am still concerned that, as a result of the amendment with effect to Section 53 of the 1995 Act, the period between conviction and the court perhaps ordering imprisonment may be as long as 12 months. As I understand it, because the purpose of the interim hospital order is partly to allow the court to assess the future prognosis, at the end of that period—perhaps 12 months later—the court may decide to impose a sentence of imprisonment. If the sentence of imprisonment turns out to be less than 12 months—and particularly if it is substantially less than 12 months—one ends up with the odd situation of a person who does not deserve a period of imprisonment of as much as 12 months (in the view of the court) in fact being required to stay in hospital for that period as a result of a succession of these orders.
Although I have outlined my concerns, at this hour of the night I do not wish to do any more. I shall read with interest in the report of today's proceedings what the noble and learned Lord has said. I am comforted by the fact that the bodies to which the noble and learned Lord referred have given support to the measure following consultation. Therefore, I shall not pursue the matter further tonight.
Clause 10 agreed to.
Clause 11 [Sentence calculation where remand spent in hospital]:
On Question, Whether Clause 11 shall stand part of the Bill?
The Earl of Mar and Kellie: I need to apologise to the Committee for tabling this Motion. I was somewhat concerned about the implications of the early release scheme on someone who had achieved a backdating sentence to include their time spent on remand in a psychiatric hospital. During the course of the evening it has come to my notice that someone who is in a psychiatric hospital during the course of a sentence will be credited with the maximum early release. If I can be assured that I have understood that the maximum early release points will be granted automatically to someone who spends part of their sentence in hospital, then I should be able to withdraw my opposition.
Lord Mackay of Drumadoon: I am happy to confirm that the matter is dealt with in Clause 38(2), and that the noble Earl's understanding is correct.
Clause 11 agreed to.
Clause 12 [Increase in sentences available to sheriff and district courts]:
The Deputy Chairman of Committees (Lord McColl of Dulwich): If Amendment No. 102A is agreed to, I cannot call Amendments Nos. 103 to 105A.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 102A:
Page 19, line 31, leave out subsection (1).
The noble Lord said: The amendment deals with increasing the powers of sentencing in the sheriff court in Scotland. It is part of the insidious erosion of the quality of Scottish justice that the sheriff court should be given the powers proposed in Clause 12. At one time the sheriff court could not impose a sentence of more than two years, but the sheriff had the power to remit the case to the High Court if he or she thought that the two years was not sufficient to deal with the case as he or she had heard the evidence. The same has applied since the limit was raised to three years.
To raise the powers of the sheriff court to five years is what I would call a quantum leap in sentencing in the judicial system of Scotland, and it is unjustified. I am trying to recall what the Lord Advocate said on Tuesday. It appears to me—I may have it wrong—that what we are now getting, not just in Scotland but in England, is Treasury-led justice—trying to get justice on the cheap. It goes without saying that cheap justice is bad justice.
Five years is a long time to send anyone away to prison for whatever crime he or she may have committed. We must be extremely careful into whose hands we, as a responsible body—namely, the Parliament of the UK—pass that responsibility. There is no protection for the accused within this proposal.
I do not know how many temporary sheriffs there are, but I shall ask the Lord Advocate—I do not expect him to do it tonight—to publish for the benefit of all of us

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concerned with the administration of justice in Scotland—I declare an interest as a paid-up member of the Faculty of Advocates—a list of everyone who holds a commission as a temporary sheriff in the sheriff courts in Scotland showing, first, the names, obviously, their ages, their qualifications, and whether they are still in active practice, or whether they are just using it as a sideline, so to speak, to make a pound or two during the week. I am not criticising them for doing that. I suppose anyone would turn out for £300 a day if they were given the invitation. I do not make the remark flippantly.
What protection will be given to the accused and to the legal system of Scotland if people appear randomly from nowhere in various jurisdictions and are left with the power to sentence someone to five years' imprisonment? There is no consistency in sentencing. You can have as many conferences, training schools and judges as you like telling sheriffs or temporary sheriffs about the way in which they should approach their job, but you will not get consistency.
The situation is not unknown. I remember a colleague of mine at the Bar who was sitting in Dumfries when he received a telephone call from what is now the Scottish Courts Administration. He was asked whether he could be in Aberdeen the next morning. In fact, he refused to go and for a short time had a red star against his name indicating that he was not very co-operative. Perhaps it took him a little while to get back in with the establishment before he was given a full-time post.
I am most concerned about the proposal. The amendment proposes the deletion of subsection (1). As the Deputy Chairman of Committees indicated, if it is agreed to, it will negative all the other clauses. I am sometimes astonished when I pick up the local newspaper in Glasgow, Edinburgh, Dundee or Aberdeen and see the names of some of the people who are sitting as sheriffs. I wonder what qualifications they have and why they in particular have been given the enormous task of guiding a jury through perhaps a complex case and deciding on the sentence.
If the Government's ultimate aim in fact and in honesty is to destroy the High Court of Justiciary in Scotland as a court of first instance and pass all the crime to the sheriff court on the basis that it will become a Crown Court of Scotland, let them be honest about it. If they want to turn the High Court of Justiciary into an appellate court only, let us get on with it. There is no point in messing about in this piecemeal fashion, going from two years to three years to five years. Will we have another Bill next year to make it seven years and another Bill the following year to make it 10 years? Fortunately, the noble and learned Lord the Lord Advocate will be in no position to make that decision because he will not be sitting on that side of the Chamber after 1st May. Be that as it may, the thought of a sheriff being able to impose a sentence of five years in the sheriff court is appalling and fills me with a certain degree of horror.
We have heard a great deal about the English system; England has been referred to many times during the debate. We have another problem in Scotland, which is the availability of counsel in the sheriff court. If the sheriff court is to be given the power to impose five
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years' imprisonment, will the Government give an undertaking that counsel will be available to represent the accused, irrespective of the existence of the hybrid advocate solicitor as introduced in the 1993 Act?
Will the Government give an assurance that if the clause is agreed to there will be availability of choice to people who are accused and brought to trial in the sheriff court in solemn procedure on indictment and they will not be forced either to take a solicitor advocate who will normally practice in the sheriff court or to take what is being broadly referred to as the public defender within the context of this Act? Not only must we protect the victim but a decent system of justice must also protect the accused from wrongful conviction. I do not need to go into recent events in England to show how things can go badly wrong, depending on the representation made on behalf of the accused.
This amendment is not tabled in any light-hearted manner. It relates to one of the most serious clauses in the Bill. For that reason, it is a rather draconian amendment to place before the Committee, but it is there to focus on the situation as it is in Scotland. We wish—and I think that most people in Scotland involved in the administration of justice wish—the High Court to remain a court which is respected and to which people go only for the most serious crimes. They do not want a second-class system of justice in the sheriff court.
In making that remark, I do not wish in any way to demean the hard work that sheriffs and temporary sheriffs do. But in view of the sentence to be imposed, we need to establish a Rolls-Royce system of justice in the criminal courts. The Government's proposal to increase the powers of the sheriff court so that it can impose sentences of five years' imprisonment will certainly bring the Rolls-Royce to a halt. I beg to move.
9.30 p.m.
Lord McCluskey: I rise because this amendment and a number of amendments that I propose have been grouped together. I find it a matter greatly to be regretted and deeply disturbing that we come to what is an extremely important clause in the Bill at a time when there are only nine persons present in the Committee. I hope that it will be recorded that there are nine persons present, including the Minister and the Whip, one other Back-Bencher on the Government Benches, and the rest are Front Benchers, apart from myself and one other Cross-Bencher. That is deeply disturbing because this is a matter of constitutional importance which we are discussing at a late hour of the night on a very important Bill.
The matter needs to be looked at fairly deeply. As the noble Lord, Lord Macaulay, indicated, until 1987 the period of sentence which a sheriff could impose was a maximum of two years. That was amended in 1987 under Section 58 of the Criminal Justice (Scotland) Act 1987.
Of course, the sheriff had, as he still would have under the amended 1995 Act, the power to remit a case to the High Court. But the need to remit will be dramatically diminished because he will be able to impose a sentence of five years.

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Perhaps I may remind the Committee what two years meant; what was the effect of a sentence of two years which a sheriff imposed prior to the coming into force of Section 58 of the 1987 Act. In those days a sheriff could impose a sentence of two years, and effectively the prisoner received one-third off for remission and accordingly the effective period was 16 months. That was the effective sentence that the sheriff could impose.
When the 1987 Act was a Bill and was discussed in another place in Standing Committee, the then Solicitor-General for Scotland, now the noble and learned Lord, Lord Fraser of Carmyllie, justified it on the basis, first, of the Grant Report which in 1967 recommended that sentencing powers on indictment cases should be increased. The Committee should note that the Grant Report was a report of a committee presided over by Lord Grant, who was the Lord Justice Clerk for Scotland. Therefore, once again that was an instance of the judges being used quite properly by the Government in relation to important matters of sentencing and criminal procedure. That is in total contrast with the nonsense written by the current Solicitor-General for Scotland suggesting that judges should "keep out of politics".
Apart, therefore, from the Grant Committee in 1967, the next body to consider the matter was the Thomson Committee sitting under Lord Thomson, a judge of the Court of Session and a Lord Commissioner of justiciary. That committee produced three reports and there were others sitting on that committee who were or became judges including, if I recall correctly, Lord Dunpark. Therefore, the Thomson Committee reached the same conclusion that the sentencing powers of the sheriff should be increased. The third body to consider the matter was the Maxwell Committee sitting under Lord Maxwell, who was yet another judge of the court who was brought in by the Government for the purposes of guiding the study.
So we have the Grant Committee, the Thomson Committee and the Maxwell Committee respectively for the 1960s, the 1970s and the 1980s, heavy use of judges on criminal procedure and sentencing, a deep study preceding the Bill—every one of these bodies hearing evidence from outside—and an idea which matured for some 20 years before Parliament agreed in 1987 to raise the sentencing power of the sheriff from two to three years. I contrast that with the present situation where absolutely no study whatever preceded the proposal. If the noble and learned Lord the Lord Advocate can tell me that I am wrong in that respect, I hope that he will do so in the clearest terms. Perhaps he can tell me who conducted the study, who was invited to give evidence, who gave evidence to it, and who approved of it. I know of nothing of that kind except in relation to the White Paper. So far as I can tell, the responses to the White Paper had very little effect upon the contents of the Bill. Therefore, so far as I can see, there was no effective consultation in relation to the matter.
There was no study preceding this proposal. It has come out of the blue; it has not taken 20 years, 20 months or even 20 weeks for us to move suddenly from the period that was recommended after deep consideration by the Government, according to the then
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Solicitor-General in the Select Committee, a copy of whose remarks I have with me. The then Opposition, led by Donald Dewar, indicated that that was accepted with some reluctance on the basis of the evidence from the legal committees to which reference has been made. He concluded by saying that,
"although we are right to express some of our doubts, I think that we should now let the matter go".
I believe that the late Lord Morton of Shuna adopted a similar line when the matter was discussed in this Chamber.
As a result of the amendment made in 1987, the two-year period was raised to three years. As Members of the Committee will instantly recognise, that was a 50 per cent. increase. So the effective length of the sentence went from 16 months to 24 months. I hope that noble Lords will bear those figures in mind. Then, Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 increased the remission in respect of persons sentenced to prison for less than four years to one half. Accordingly, the effective sentence that a sheriff could impose was one half of 36 months, so the period was down to 18 months. That was the effective length of the sentence under the 1993 Act.
The present Bill would, first, increase the sheriff's period of sentence to five years; that is 60 months. I put the figure into months for easy comparison with the other figures. Secondly, in a part of the Bill that has not yet been dealt with, it would abolish the remission created by the 1993 Act and replace the one-half remission by a remission of a maximum of one sixth. Therefore, the effective imprisonment that the sheriff may impose goes up in one leap, so to speak, with two strands to it—if I may mix my metaphors in that way—to 50 months.
Perhaps I may remind Members of the Committee of the figures: pre-1987, 16 months; 1987 to 1993, 24 months; 1993 to 1997, 18 months; and the figure for 1997 is 50 months plus. So you almost treble the sentencing power of the sheriff in one go. As I said, that was preceded by no study that I can determine, no consultation that meant anything at all, and no deep reflection. It is just the sudden decision of one or two Ministers behind the scenes to make a dramatic change in the criminal justice system of Scotland. I cannot exaggerate the importance of it and I do not believe that the noble Lord, Lord Macaulay exaggerated the position. What on earth is the hurry?
My amendment might at first sight seem a retrograde step. We reduce the three years to two, but we must think of the effective sentence. As I have said, at the moment three years means 18 months. By reducing it to two—and accepting the early release provisions of the Bill—we arrive at two years less one-sixth; in other words, we reduce it from 24 months to 20 months. The effect of my amendment, reducing the period of three years to two years, is to give the effective power of the sheriff an increase from 18 to 20 months. If one wants to increase the power of the sheriff, one does so in this particular way.
These are important matters. On a separate tack, I have deep reservations about giving sheriffs the power to impose a sentence of this character. As I say, it is almost

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three times as much as they can currently give. At the present time a High Court judge could impose a sentence of, let us say, six years. Under Section 1 of the 1993 Act the person automatically receives one-third remission and so he gives effectively a 48 month sentence if he imposes a six year sentence. A sheriff will have a greater power than the High Court judge now enjoys if he imposes six years, or six years and three months. The sheriff will effectively be able to do what the High Court judge imposing a six and a quarter year sentence can now do. That is absurd.
I shall not mince my words. Far too many of the sheriffs are temps. On far too many occasions one sheriff hears the trial or takes the plea, a different sheriff hears the adjournment of the consideration of the sentence, and yet a third sheriff imposes the sentence, or bats it back to the first or the second. Therefore people accept, or do not accept, responsibility. Many of the temporary sheriffs are competent, but not all of them. There are some people sitting as temporary sheriffs today who are not fit to sit on the shrieval bench. There are sheriffs about whom we in the High Court have written to the Lord Advocate of the day pointing out that they are not fit to sit. These people are to be given a power now enjoyed by the High Court judge.
But quite apart from the quality of some of the sheriffs, which is poor, the quality of the whole sheriff court is not really worthy of a court which can send people to prison for this period of time. I shall not go into that until I have heard what has been said. When the Government justified—on the basis of the Grant Committee, the Thomson Committee and the Maxwell Committee reports—the move from two years to three years, the then Solicitor-General put before the other place the number of High Court cases and justified it on the basis that there was a substantial increase in the High Court cases and accordingly sheriffs had to be given a greater power. I hope we shall hear the figures equivalent to those figures tonight, and that they will be compared with the 1987 figures. Unless we do, and unless the figures are convincing, one will he forced to agree with the conclusion—which I shall be reluctant to agree with—advanced by the noble Lord, Lord Macaulay, that this is a Treasury-led experiment with justice. I regard that as extremely dangerous.
I also draw attention to the other feature which I mentioned in my speech at Second Reading. I cannot over emphasise this. Because the Lord Advocate enjoys the power to determine which court a person is indicted in, this increase in the sheriff's power from an effective sentence a 18 months to an effective sentence of 50 months is a massive increase in the power of the Lord Advocate. It gives him the right to decide which court a person will be indicted in and what kind of court. As the noble Lord, Lord Macaulay, has pointed out, there is also the danger that at present legal aid is not allowed for the employment of counsel in the sheriff court. If that is carried through into this measure, people will not be represented by counsel and yet could be sent to prison for what is the equivalent today of a six and a quarter year sentence.
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These are deep and serious matters. They should not be brought forward in this fashion, so late in the life of a Parliament and in the run-up to a general election. I do not know what the Government are thinking of in treating the Scottish criminal justice system in this deplorable fashion.
9.45 p.m.
Lord Mackay of Drumadoon: The amendment moved by the noble Lord, Lord McCluskey, is grouped with a large number of amendments, although they do not all deal with this issue. For the convenience of the Committee, it might be helpful if I go through them all at this stage and then deal with the points that both noble Lords have made.
Amendments Nos. 103, 104 and 107 propose to revert to the position before 1988 when the last increase in sheriff solemn sentencing powers occurred. The amendments would reduce the existing powers of the sheriffs to two years. We have had proposals to maintain their power and those of the stipendiary magistrates and sheriffs sitting in the summary court at their present level. That is covered by Amendment No. 106A.
Amendments Nos. 103A, 104A, 105A and 107A propose an increase in the maximum sentencing powers from three to four years instead of five, as in the Bill. Amendment No. 102A would not allow any increase to sheriffs and jury trials. Amendment No. 106 would not permit an increase in sheriff summary powers. Therefore there are a great number of options open to the Committee when one goes through the range of the amendments.
These amendments have not been inspired by the Treasury, as has been suggested, but because the Government believe, as was set out in the White Paper and as was explained in another place, they would assist the operation of the courts and the criminal justice system of which these courts form part. They would increase the level of flexibility and relieve pressures which exist in the system from time to time. I shall have more to say about that in a moment.
They would also provide sheriffs with a range to determine the most appropriate sentences for the cases before them without the need to remit to the High Court for sentence. I accept that that power exists, but experience in recent years indicates that it is a power used infrequently and only in the most serious cases. Undoubtedly the proposals will have implications on the marking policy of the Lord Advocate and his Crown counsel, but, as I have explained to the Committee and indeed at Second Reading, the role of Crown counsel is well established. I see no reason why any proposals in the Bill, let alone these, should cause Crown counsel to depart from the high standards which they have sought to achieve over the years.
As the noble and learned Lord, Lord McCluskey, indicated, the matter was last considered in 1994 when the consultation document, Sentencing Appeals: Improving the Delivery of Justice in Scotland, was published as part of the Government's proposals. Since that time there have been a number of developments, particularly in the High Court.

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In the year 1995–96 there was a 36 per cent. increase in the number of cases called in the High Court of Justiciary on the previous year. As I am sure the noble and learned Lord, Lord McCluskey, will be aware from his experience, the court is now sitting much longer than it used to. It faces an increasing number of adjournments as cases are transferred from one circuit to another.
I should explain to those noble Lords who are not entirely familiar with the procedure for the operation of the High Court in Scotland that circuits occur in various towns and cities in Scotland to which a number of cases are allocated. The circuit normally lasts a period of two weeks before, in busy cities such Glasgow or Edinburgh, the next circuit begins and the judge allocated to the circuit returns to Edinburgh to conduct other business. The experience has been that there have been numerous occasions when cases indicted for one circuit cannot be tried because there is insufficient court time. That is a major practical problem, not only for the court but for practitioners as well. The volume of business in the High Court is increasing.
If the noble and learned Lord, Lord McCluskey, wishes to have more precise figures I am happy to provide them. I have already referred to the figures for 1995–96. For the initial period in the year 1996–97 again there were increases. As we are rapidly coming to the end of that period, it should be possible for me to write to the noble and learned Lord giving a fairly clear indication of what level of increase we are dealing with compared to the previous year.
The number of cases indicted is increasing, as is the number of days on which the court sits. So there is a major practical problem to be faced by the Crown, which has to prosecute in the court, by defence counsel and solicitor advocates, who defend there, and by High Court judges who sit there.
For that reason it appears to the Government that there is scope for re-examining the issue of transferring cases to the sheriff and jury court, which would be one of the practical consequences of the Government's proposals, and, for instance, transferring cases at the lesser end of gravity that are currently tried in the sheriff and jury court into the sheriff summary court. For those reasons we are unable to accept the amendment proposed by the noble Lord, Lord Macaulay, which would seek to negate our proposals.
At this stage it might be helpful to mention that in the sheriff summary court sheriffs already try a number of cases where the maximum period of imprisonment is 12 months. They lie in the field of contraventions of the Misuse of Drugs Act. As the Committee will appreciate, such offences are quite regularly committed in Scotland. It is not uncommon for sheriffs sitting on their own deciding issues of guilt and the question of sentence to send offenders to prison for a period of 12 months. So far as the sheriff summary court is concerned the proposal is to give that power in relation to all offences unless the maximum sentence is a lower figure specified by Parliament. In certain cases of police assault under the Police (Scotland) Act they have power to impose sentences of nine months. Therefore we believe that
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there is no significant problem in increasing their share of summary powers up to 12 months, and certainly no major constitutional issue arises on that matter.
Another important development since the matter was last looked at by the Government and by Parliament is the power of the Appeal Court to issue sentencing guidelines. As I have already indicated to the Committee, the Crown would welcome the use of that power.
Another topic is the issue of judicial training. I think it was the noble Lord, Lord Macaulay, who suggested that no amount of lectures would achieve consistency. I have slightly more faith in the value of judicial training. Certainly those members of the English judiciary, both permanent and part-time, to whom I have spoken place great faith in, reliance upon, and commend the efforts of, the Judicial Studies Board in England. The noble Lord, Lord Macaulay, will be aware that, upon the installation of the noble and learned Lord, Lord Rodger of Earlsferry, as Lord President, he made it clear in the remarks he addressed to the court that day that he too would welcome developments in the field of judicial training, so presumably he shares my view that there is benefit in it.
It is for that reason that the Government have put resources into the matter and are very grateful that the recently retired Lord Justice Clerk, Lord Ross, has agreed to play an important role in setting up the committee and putting judicial training in Scotland on a more formal and extensive basis than has been the position until now.
A number of points were raised by the noble Lord, Lord Macaulay. Perhaps I may deal with some of them, without seeking to comment on every one of the criticisms he made of the Government's proposals.
He mentioned the issue of temporary sheriffs and invited me to publish a list of everyone who is a temporary sheriff. I am happy to consider that matter. It cannot be anything other than a matter of public record who the temporary sheriffs are and what their ages and professional qualifications are. I think the noble Lord wanted to go beyond that and explore their motive for doing the work—whether it was limited to earning a little money on the side, or something of that kind. Whether it would be appropriate to form a view on that matter and publish it, I rather doubt; but certainly, if there is a concern that the names, ages, and professional qualifications and current positions of temporary sheriffs are not known, I see no reason why that should not be addressed.
Clearly, temporary sheriffs have to sit in different parts of Scotland, but that is because there are variations in the volume of business from time to time in different parts of the country. There are over a hundred permanent sheriffs. They are entitled to so many weeks' leave each year; on occasion they fall sick and require to be replaced by temporary sheriffs, attend courses or are seconded to do other work which takes them away from their regular shrieval duties.
The temporary sheriffs have an important role to play in the day-to-day management and staffing of the courts and, if they are interested in a permanent appointment,

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they are also provided with a useful opportunity to explore whether this is a post that they really wish to have and for which they feel they are qualified. Equally the system assists those involved in the appointment of permanent sheriffs to receive reports.
The commissions of the temporary sheriffs are reviewed annually at the present time. They are formally reported upon each year by the sheriffs principal. As the noble and learned Lord, Lord McCluskey, indicated, from time to time the Appeal Court has written to the Lord Advocate of the day complaining about the performance of individuals who have sat as temporary sheriffs. Without breaching any confidentiality, I am in a position to assure the Committee that when such reports are received they are acted upon: the papers in the case are called for, reports are obtained from those involved and the renewal of the commission is by no means automatic.
The allocation of work in the sheriff court is a matter for the sheriffs principal. They decide which permanent sheriffs do which cases and what use they make of temporary sheriffs within their jurisdiction. We believe that that is the correct approach, in the same way that I explained to the Committee earlier in our deliberations. So far as the High Court is concerned, how the business falls to be allocated is a matter for the Lord Justice General. Because we believe that temporary sheriffs have a role to play, we are content to leave it to the sheriffs principal to decide which work they do. In the same way, the Lord Justice General no doubt has regard to the complexities of individual cases in deciding which judges to allocate to which cases. So there is every reason to believe that sheriffs principal, who are all experienced lawyers, would do likewise.
The noble Lord, Lord Macaulay, raised the question of the availability of defence lawyers in the sheriff court. In the sheriff court, there is the opportunity to be defended by solicitors, whether or not they are qualified as solicitor advocates. There is also the opportunity to seek authority from the legal aid fund for the employment of counsel. The Government have no plans in the context of this Bill to reform the legal aid scheme. They are content to leave it to the Legal Aid Board to decide in relation to particular cases whether the employment of counsel is justified. Obviously, if there is an increase in the sentencing powers of the sheriff, it is possible that the Legal Aid Board will take the view that there is more scope for sanctioning the employment of counsel in a particular case than there may be at the present time. But that is a matter for that body.
I resist quite firmly the suggestion that this proposal is put forward, as the noble Lord, Lord Macaulay said, in some way to erode the quality of justice in Scotland and to reduce it from a Rolls-Royce system to something much less. I believe that that view will be shared by many others who currently practise in Scotland, although I recognise that it is not a view shared by everyone who has spoken tonight and certainly not everyone who responded to the consultation document, about which I shall have more to say in a moment.
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I turn to the points made by the noble and learned Lord, Lord McCluskey, who accurately, as one would expect, went over the history of the Grant, Thomson and Maxwell Reports. He will recall that in 1994, when consultation took place, the issue of increasing the sentencing power of the sheriff and jury court to four years was seriously considered.
I do not suggest that there has been an examination in the same way as occurred with the reports under the chairmanship of the High Court judges in bringing forward these proposals, but they were set out quite firmly in the White Paper and were responded to by many parties. My information is that a total of 31 responses to the White Paper were received. On this particular issue, 15, including those members of the senior judiciary who responded, were against the proposal; and 14, from most of the bodies representing those interested in the work of the lower courts (including the professional associations, which are composed of solicitors and solicitor advocates) and the sheriff association, supported the matter.
The proposals had a measure of support, but equally they had a measure of opposition. It is a matter of regret that the noble and learned Lord, Lord McCluskey, considers that these proposals will cause deep resentment. I do not believe, and my understanding of the views of those who practice in the sheriff court is, that that resentment would be universally shared. Clearly there is scope for differing views. But in view of the factors that I have mentioned, in particular the increase in the number of cases being indicted in the High Court, in the lengths of trials and in the number of adjournments, there is scope for looking at the matter again. That is what has been done.
Fortified by the additional safeguards provided by the power which the High Court has to lay down sentencing guidelines—a power which to some extent is reinforced by the Lord Advocate's power to appeal against unduly lenient sentences and by the right of an accused to appeal against sentence—we believe the guidelines provide a safeguard and judicial training will fortify that safeguard. These are important measures and ones which ought to command the approval of the Committee. I hope therefore that the Committee will not support Amendment No. 102A in the name of the noble Lord, Lord Macaulay, or any other amendments focused in the group we are presently debating.
Lord McCluskey: I regard that reply to the points I made as abysmally unsatisfactory. First, will the Lord Advocate kindly note that I drew attention to the fact that the power of the sheriff is effectively to be raised by 278 per cent.? That is the figure I gave and he can ask his officials to check it. The effective power of the sheriff today is 18 months; the effective power of the sheriff when this Bill becomes an Act will be 50 months. That is an enormous increase in power. Perhaps the Lord Advocate will be good enough to acknowledge at some stage that that is correct.
Secondly, when this matter was debated at Second Reading, the noble and learned Lord, Lord Clyde, expressed support for certain measures in the Bill and his discontent over this specific matter. He drew

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attention to the lack of need for any such power. He also pointed out that there is considerable danger of a greater risk of inconsistent levels of sentencing in the sheriff court. He pointed to the fact that in the High Court the judges often meet in the morning; they meet for lunch; they occasionally have conferences; and they have regular meetings every Thursday morning. They can exchange information with one another and achieve a degree of consistency through that method and also through the sentencing information system. There are no such mechanisms available for sheriffs and the degree of inconsistency will rise dramatically.
The Lord Advocate said that we should have confidence in the continued competence and role of Crown counsel. I say with the utmost sorrow that I do not have the same confidence that I used to have. That is partly because the present Lord Advocate, the noble and learned Lord, decided, against the advice of many people, including myself—we made representations to him, to his predecessor and again to him—that he should continue to appoint to the office of Crown counsel people who were independent, departing from the tradition that has existed for the entire history of Scots law and putting into that office permanent, full-time servants of the Crown Office with a salary and promotion prospects. I cannot believe that the continuation of that practice, which was brought in around Christmas-time without any intimation to me—I read it in the Scots Law Times—is good for the independence of Crown counsel.
I also drew attention to the fact that the justification for this measure in 1987 was given in terms of the absolute numbers of cases. I would seek to have from the Lord Advocate, preferably before Monday—because this matter will arise again on Monday, and again on Report, either on the first day of Report or the second day of Report, or whatever day of Report is required in order to have satisfactory answers on this matter—the absolute numbers of cases. It is those numbers that count, not the alleged increases. I do not know what the increases mean. The Lord Advocate referred to circuits. I thought they were abolished in 1987, but he will no doubt correct me if I am wrong.
If there is a pressure upon the High Court because of some increase in the number of cases, the correct answer is to appoint High Court judges. Why, instead of having High Court judges imposing sentences of six-and-a-half years, should we have temporary sheriffs? One thing is clear. It is a sight cheaper to have a temporary sheriff than to have a High Court judge. That points to the truth of the suggestion made by the noble Lord, Lord Macaulay—I hope it is not true—that this is a Treasury-led initiative.
The Lord Advocate also referred to the power to issue sentencing guidelines. That power is not being used. For reasons with which I do not greatly sympathise, the Criminal Appeal Court in Scotland chooses not to issue sentencing guidelines. It chooses to make decisions on the basis of individual cases, and that in a sense sets a trend. There is a kind of incremental wisdom. There is no attempt to prescribe great principles.
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On the matter of judicial training, I have the advantage of having attended the Judicial Studies Training Board in England. I found to my surprise that a great many of the people who were being trained there had virtually no experience of the criminal law and so they really did need the training. When we had our exercises to discover what possible sentences should be passed, they varied from probation or a slap across the wrist to 18 years in one case. They really needed the training. That is an entirely different situation from the one in Scotland, where almost universally the people who go onto the Bench have some experience of criminal work. I do not have the same confidence that Lord Ross, with all his experience, will somehow create a kind of even and consistent level of wisdom among temporary sheriffs. That seems to be a quite ridiculous idea. Why on earth should we give temporary sheriffs this enormous power?
The noble and learned Lord also referred to the suggestion that the sheriff principal somehow allocates work in the same way as the Lord Justice General did. I do not believe that the Lord Justice General does allocate work in the criminal courts on that basis. I hope that the noble and learned Lord will write to ask him whether he does. I should like to know whether the sheriff principals, some of whom cover enormous areas with vast numbers of sheriffs, have any possible time and energy for allocating particular sheriffs to particular work. I do not think that is a possibility and I am surprised that the noble and learned Lord should suggest that to us.
He also said that it is possible that the Scottish Legal Aid Board will sanction counsel. I hope he will make inquiries of the Scottish Legal Aid Board to see whether in the light of these new provisions it intends to vary its practice from that which obtains now.
In relation to the matter of consultation, the matter that was put out for consultation in 1994 was a proposal that possibly the sheriffs powers might be raised to sentencing for four years at a time when the remission was going to be a half of that. Under the provisions in the 1993 Act the sheriffs power was to put a person in custody for 24 months. That was effectively what it was. There was no consultation about a proposal to give the sheriff an effective power to send someone to prison for four years and two months; in other words, a five-year sentence with one-sixth remission.
I would like the noble and learned Lord the Lord Advocate to write to me as soon as may be to explain who were the 15 persons or bodies who were against this proposal and who were the 14 for it. That is 29 out of 31 and I would like to know who the other two are as well. They were not being consulted on the measure which this Bill contains. It is important that this Committee should hear and that the Chamber should know what are the absolute numbers. The Lord Advocate mentioned the increase in the number of cases. No doubt we shall hear the numbers fairly soon—that is to say, the actual number of cases indicted in the High Court. We shall also hear something about the length of cases. The noble and learned Lord the Lord Advocate spoke about the number of adjournments and that suggestion baffles me. The idea is that because

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cases are adjourned therefore he should send more cases off to the sheriff court. I do not understand the logic of that argument at all. I express myself as being deeply dissatisfied. I hope that at some stage we shall have an opportunity to vote on the matter.
10.15 p.m.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down perhaps I may respond briefly to some of the points he makes. As regards the figures, I shall do my best to ensure that a letter is dispatched to him tomorrow addressing the various issues which he raised, including the number of cases coming into the Crown Office each year; the number of cases indicted and the number of adjournments which take place and so on. I hope that his experience in sitting regularly in the criminal courts will convince him that there is at least some support for my contention of an increase in the volume of business of the High Court of justiciary in Scotland.
The noble and learned Lord made certain comments about Crown counsel which I should deal with. It is a matter of regret that a High Court judge sitting in this House, let alone anywhere, should feel it appropriate to express reservations about the confidence that the court has in Crown counsel. As Members of the Committee will know, they are the advocate deputes who prosecute daily in the High Court in Scotland. I personally regret that the noble and learned Lord has chosen to criticise me for deciding to appoint to that team a lawyer who had been a procurator fiscal for many years. He has now resigned from the service and taken up an appointment as Crown counsel. I did so after I received a report from a group chaired by the Solicitor-General, including others unconnected with the Crown Office, which recommended that such appointments should be made if individual candidates merited appointment. In accepting the recommendations of that group last December, I have been considering when to make an appointment.
It is an unfortunate fact of life that since I was an advocate depute in the early 1980s—certainly since the noble and learned Lord was an advocate depute many years previously—the willingness of members of the Faculty of Advocates to serve as Crown counsel has not been as enthusiastic as it used to be. It would be wrong to go into that matter in any detail, but it is a consideration that has to be taken into account. Obviously, even if only one person approached declines to serve, that limits the field from which the Lord Advocate can select his team of Crown counsel.
All I can say is that the views that the noble and learned Lord expressed about my decision are not universally shared by those involved in the legal profession in Scotland. It is probably inappropriate that I should say any more. I am glad that he agrees with me that there would be value in the power of the sentencing guidelines being used. He is in a better position than I am to encourage his colleagues to do so and I look forward to his support in that regard.
It would be constitutionally wrong of the Government to interfere in the work of the Scottish Legal Aid Board and in how it exercises its powers, but I shall certainly
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draw to its attention the views which have been expressed tonight. Whether the lawyers who serve on that board include members of the faculty and solicitors who share the views which have been expressed tonight is a matter for them to decide, but I undertake to ensure that the observations that have been made here are drawn to the board's attention.
The consultation exercise, as set out in the White Paper, related not only to these proposals but to those on early release. It was therefore open to any consultee to examine the issue in the way in which the noble and learned Lord, Lord McCluskey, has done. I shall do what I can to provide the noble and learned Lord before Monday with a breakdown of those who supported the proposals and those who did not. As I said at Second Reading, the consultation exercise took place on the basis that consultation responses would be made public unless the individual consultees requested otherwise. It is possible that some who supported the proposals and some who were against them requested that their views should be private. Subject to that qualification, however, there should be no difficulty in meeting the request that has been made.
I appreciate that the noble and learned Lord feels strongly about this matter, as does the noble Lord, Lord Macaulay. All that I can do is to assure other Members of the Committee that the matter has been considered and that the proposals command a measure of support—albeit that they command a measure of opposition also. In the Government's view, however, they are appropriate to deal with the practical problems which the Scottish courts face. I personally have greater faith in the sheriffs, in those who sit as temporary sheriffs and those who practise in the sheriff courts, than has been expressed by the noble Lord, Lord Macaulay, and the noble and learned Lord, Lord McCluskey, tonight. On that basis, I continue to invite the Committee not to support the amendment.
Lord Macaulay of Bragar: In replying to the noble and learned Lord the Lord Advocate, I should like to make it clear that I was in no way demeaning the value of judicial training. It has its own place in the system. I was certainly not suggesting that temporary sheriffs are Arthur Daleys with wigs on who go around Scotland making a little bit on the side. I never used that expression. I said that if someone offered me £300 a day I would no doubt take it, if I was suited for the job. As I understand it, temporary sheriffs are paid somewhere around that rate on a daily basis. I do not want that to be taken in any way as a criticism of them for doing the job.
As the noble and learned Lord, Lord McCluskey, pointed out, we are now dealing with an issue which is fundamental to the Scottish legal system. I have been qualified in the law for 40 years. I do not like personalising argument or debate, but I genuinely find this one of the saddest occasions at which I have been present in relation to the Scottish legal system. What the Lord Advocate is telling the Committee is that Scotland's population of slightly over 5 million people cannot run its own legal system efficiently.

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So, what do we do? The High Court becomes overloaded, yet more judges are not appointed. I remember that in either the 1990 or 1993 debates I suggested that we should have a pool of judges in order to give us flexibility and to enable judges to have proper holidays and proper writing time. There may be a bit of slack in the system, but the system could be tightened when required. The Government rejected that out of hand. I was told—rightly or wrongly—that when the suggestion was made that we should have more judges (even if they had a day or even a week off occasionally) the excuse given by the Treasury was that if you appoint a judge you have to appoint a macer and find him a court and all the rest. The Treasury said that that could not be afforded, so the system has got constricted.
Is the noble and learned Lord now telling the people of Scotland, the people who matter—the noble and learned Lord does not matter; I do not matter; it is the system of justice in Scotland that matters—that the whole judicial system has ground to a halt and that there is no answer to it except to shift the problem around the corner from the High Court into the sheriff court to let the sheriffs deal with it and give them increased powers? Is he saying that everyone should say "hurrah", go home clapping their hands and say that we have solved the problem? The situation is absolutely preposterous.
Although I speak from the Opposition Front Bench, I am in no position to give any undertakings about appointing more judges. But is it not time that someone faced up to the situation, looked it square in the face, and set up a commission urgently to decide how we solve the problem? We do not solve it with a piecemeal approach, and, as I say, shove it around the corner.
I must say that I am surprised to hear the noble and learned Lord the Lord Advocate complaining about adjournments in the High Court. From practice in the sheriff court, I can assure him that it is the easiest place in the world to obtain an adjournment. It is difficult to get an adjournment in a High Court trial because the judges are very conscious of the court's duty not just to the accused and the Crown but to the public and jurors. There is not much of a problem in obtaining an adjournment in a sheriff court.
If you walk into a busy sheriff court, from time to time you will see a fiscal coming in at half-past nine in the morning with a pile of papers that he has not even read. He has not had time to read them. That is the way the system works. To suggest that there is room in the sheriff court to push in important cases such as, presumably, attempted murder, attempted rape and so on, which can attract a sentence of five years' imprisonment, and that that will solve the problem, is just not facing up to the problem.
There is the question of counsel available in the sheriff court. It is all very well to say that it should be left to the Legal Aid Board and it will decide. Anyone facing a sentence of five years' imprisonment is prima facie entitled to the best representation available within the legal system and even within the legal aid system. Who on the board makes the decisions? The Legal Aid Board comprises a great many people. I do not know
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how many of them are legally qualified. Of course, the committees are legally qualified. If you speak to practising solicitors they tell you about the difficulties they sometimes have with the Legal Aid Board. At times it can be helpful; at others it can be obstructive. There is no consistency.
Why not appoint more judges? I have no doubt that in accordance with recent tradition the noble and learned Lord the Lord Advocate might be sitting in a high position within a few months. I do not know. He may be sitting as a High Court judge and looking at matters in a different light, as his predecessor is now doing as the head of the judiciary. Why do we shrink from leaving the system the way it is and improving the High Court/sheriff court structure and instead dodge the column altogether?
If the system is grinding to a halt, the people of Scotland are entitled to know that. Although no one in the Scottish press pays much attention to what is said in this place unless it is sensational, I hope that the message will get through from the noble and learned Lord the Lord Advocate that the High Court can no longer cope with its business, and so the only answer is to increase the powers of temporary sheriffs and sheriffs in the sheriff court and shove the problem out of the way so as to ease the burden.
It is an absolutely disgraceful situation. The accused in particular, as well as the victim's family, is entitled not just to the best service available in his or her defence but to the best judges available in the land in cases where the sentence is likely to be five years' imprisonment.
Not often am I lost for words, but I repeat that this is a sad, sad night for the legal system of Scotland if what the noble and learned Lord said to the noble and learned Lord, Lord McCluskey, and to me about the state of the Scottish criminal legal system is true. The matter will be investigated again and again, and we will come back at the Report stage once we have more information. We do not have the backing of government researchers, but once the figures are available one can rest assured that they will be examined. The matter will then be brought back, perhaps not only in this House but in another place, and brought back with a vengeance to ensure that justice and not expediency prevails in Scotland. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 103
Page 19, line 34, leave out (""five") and insert (""two").
The noble and learned Lord said: I have largely spoken to Amendment No. 103, but there are one or two comments that I would have added had I been on my feet in time before the noble Lord, Lord Macaulay, withdrew his amendment.
First, I believe that I have an unrivalled breadth, depth and length of experience in the criminal courts in Scotland. I have been a law officer for more than five years and an advocate depute for more than seven years. I have practised in every court; the district court, the

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borough court, the sheriff court, the sheriff solemn court and the High Court over a period of 41 years, the last 12 as a judge. I feel passionately about this matter because I see the system being corrupted by what the Government are doing.
In my time in the Crown Office, which started in 1964 and ended in 1979, there was pressure from the permanent staff to become full-time prosecutors and to get rid of the advocate depute system which had obtained for centuries. That pressure was successfully resisted during my time. The first crack in the dam appeared when the noble and learned Lord's predecessor was Lord Advocate, and I discovered that he was contemplating appointing members of the fiscal staff in the role of Crown counsel for the first time.
I wrote to him and he asked me to attend a meeting with him. He promised to set up a committee and so he did. It was chaired by the then Solicitor-General, who now sits as Lord Advocate; the noble and learned Lord, Lord Mackay of Drumadoon. He in turn, having become Lord Advocate, appointed as the chairman of the committee in his place the new Solicitor-General, Mr. Paul Cullen.
The report which the noble and learned Lord the Lord Advocate mentioned to this Committee was a majority report. The persons on the committee were the Solicitor-General for Scotland, who could hardly be described as independent in a matter of this kind; the Deputy Crown Agent; a solicitor from the Scottish Office; two or three people who had no connection, so far as I could understand, with the law; and a distinguished Queen's Counsel with substantial experience of the Crown Office. It was a majority report and he was the one who dissented. I was not allowed to see that report, but I was given a summary of it. That is the position. On the basis of that majority report from people who were substantially and plainly chosen for their support for the idea, the Lord Advocate purports to act on the basis of a committee report.
I do not know how difficult it is to find advocate deputes. In my day, there were 100 people from whom one had to choose the advocate deputes; now there are about 360 people. Therefore, I do not see how the difficulty can be as great as the Lord Advocate seems to suggest.
There is one other figure that the Lord Advocate will wish to put before the Committee, or alternatively the House at a later stage. He will find the answer extremely easily from the sentencing information system. How many sentences above six years have been imposed in the High Court in each of the last five years, or been imposed on remit from the sheriff court to a judge of the High Court in accordance with the remissions?
If this measure goes through, the likelihood is that the work of the High Court will be reduced in that fashion. That will please my noble and learned friend Lord Clyde who thought that the High Court ought to be spending more time dealing with civil business and less time dealing with the criminal business of sending people to prison for a substantial period of years.
These are deeply important matters and in respect of the amendment standing in my name, I beg to move.
Lord Mackay of Drumadoon: I think it would assist the Committee if I limited my response to deal with two matters which the noble and learned Lord mentioned. One was the suggestion that my predecessor had picked for that committee those who supported the idea which it was to examine. I regret that such an allegation was made. It is an allegation that those who know well my noble and learned friend Lord Rodger of Earlsferry will know has no foundation whatever in fact. I hope that on further reflection the noble and learned Lord will not persist in it.
As regards my searching the sentencing information system for the information which the noble and learned Lord seeks, I regret that on this occasion I am unable to assist because, as he may have forgotten, that system is private to the judges. Neither the Crown nor defence lawyers have any access to it whatever. But as I see no reason why the public should not be aware of the information which he seeks, tomorrow I shall invite the Lord Justice General to search the system on my behalf and I hope that the information will be available for Monday or, if not, for the Report stage of the Bill.
Lord McCluskey: I do not propose to press the matter at this time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 103A:
Page 19, line 34, leave out (""five") and insert (""four").
The noble Lord said: We have been over the course probably twice too often in the course of the evening. I do not press this amendment today but I reserve the position for Report stage.
[Amendment No. 103A not moved.]
[Amendments Nos. 104 and 104A not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 105:
Page 19, line 37, leave out from beginning to ("and") in line 6 on page 20.
The noble and learned Lord said: This amendment has been grouped with others but it is a separate matter because it relates to the summary sentencing power of the sheriffs. Again, I do not wish to weary the Committee at this late hour, although there are not many to be wearied. But at present the sheriff has power to send a person to prison for three months which effectively for reasons that I have already explained is a period of six weeks, and in the case of a second or further offence of dishonesty or personal violence he can impose six months, and there are one or two higher powers to which the noble and learned Lord the Lord Advocate referred at an earlier stage.
Under the Bill, the effective power of the sheriff will be increased in the maximum case from, presently, 12 weeks to a period of 40 weeks. That is a massive increase in the power of the sheriff. I make it a 333 per cent. increase in the effective power of the

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sheriff. If the Committee were to accept my Amendment No. 106, the result would be that the effective power of the sheriff would increase from six weeks to 10 weeks in the one case and from 12 weeks to 20 weeks in the other case—a 166 per cent. increase. That is surely enough of a jump to take at one time. I cannot understand the basis on which the power of the sheriff is to be increased in that fashion.
There is another feature of this to which I wish to draw attention. In England at present there is considerable disquiet, as I understand it, at the possibility that the right to jury trial will be removed from a number of people in certain circumstances. I know nothing about the merits of that. But if we allow the sheriff to have the power to send a person to prison for an effective period of 40 weeks instead of 12 weeks or for 20 weeks instead of six weeks, in effect we are saying, "You can now go to prison for such a lengthy period without the benefit of jury trial in Scotland". All of a sudden a large number of people are to be deprived of the right to jury trial, which they would enjoy at the moment before they faced a sentence of that length.
Again, I must raise the question: who is it who decides whether a case is to go summarily or on indictment? The answer is the Lord Advocate and his staff. Is it done in public? No. Is it reviewable? No. Are they accountable for it? No. I regret to say that I stay with the constitutional principle that you should not give Ministers powers of this kind if they have not established a need for them. I am not convinced that the power that we are conferring upon the Lord Advocate in relation to the allocation of cases in this fashion has been demonstrated to be necessary. I beg to move.
Lord Mackay of Drumadoon: I do not offer any criticism in this respect, but I believe that the noble and learned Lord has just spoken to Amendment No. 106 rather than Amendment No. 105, which is the one that the Deputy Chairman of Committees called. However, to avoid further delay, perhaps I may respond briefly to it.
Lord McCluskey: I am sorry. The Marshalled List is incorrect. There has been an unfortunate mistake which I did not notice. Amendment No. 105 ought to be printed under my name and not that of the noble Lord, Lord Macaulay of Bragar. Therefore, when my name was called, I spoke to the next amendment that I had tabled.
Lord Mackay of Drumadoon: I am happy to respond to the substance of the argument, whatever the precise amendment may be, in the hope that that may save time.
I do not dispute the arithmetic of the noble and learned Lord as to the increase in the period spent in custody as a result of later proposals in the Bill. However, as I indicated earlier, I believe that if Parliament has previously entrusted sheriffs with the power to send people to prison for 12 months in the knowledge that the provisions for early release tend to vary from time to time—possibly more frequently than some noble Lords would wish—there is nothing
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constitutionally improper in the proposal to give that power in relation to all sentences that come before that court.
The issue of a jury trial is a separate matter. As the noble and learned Lord knows, there has never been the right to jury trial which there is in England. I understand that there is some misunderstanding in England as to how far back that right has existed, certainly as regards the type of cases which would be tried in the sheriff court in Scotland and which under current proposals would attract up to a period of five years' imprisonment. However, that is a debate for another country and another day.
I regret to say that I have a greater faith in the competence and experience of sheriffs to do justice in the sheriff summary court than could be inferred, whether or not this is the intention of the noble and learned Lord, from some of the comments that he and the noble Lord, Lord Macaulay, have made in the course of the past hour or so. It would be wrong, in my submission, to give any credence whatever to the suggestion that the people of Scotland should understand that they receive inferior justice if they are tried by a sheriff than if they are tried by a sheriff and jury. It would be unfortunate if that conclusion were to be drawn from the comments that have been made. However, having regard to the hour and the discussion that we have had on previous amendments, it may not be necessary for me to say any more on the matter, especially as it is not of relevance to Amendment No. 105.
Lord McCluskey: I accept that I addressed Amendment No. 106. That was the next one standing in my name on the Marshalled List, which is plainly wrong. I apologise for that fact. However, we would not, of course, be dealing with Amendments Nos. 105 or 105A, for reasons that are plain.
In relation to the substance of the matter, the right to jury trial is effectively going to be lost by people who face imprisonment for between 13 and 40 weeks. At the present time if they face such imprisonment they have the right to a jury trial; in future it will be lost. This is an important matter and I regret to say I am not satisfied by the answers I have been given. However, at this hour of the night, I do not propose to press this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 105A to 108A not moved.]
10.45 p.m.
The Deputy Chairman of Committees: I understand that Amendment No. 109 should be in the name of the noble and learned Lord, Lord McCluskey.
Lord McCluskey Lord McCluskey moved Amendment No. 109:
Page 20, line 21, at end insert—
("( ) Notwithstanding anything contained in section 3 of the 1995 Act, no person appointed under section 11 (temporary sheriffs principal and sheriffs) of the Sheriff Courts Act 1971 shall impose a sentence of imprisonment or detention exceeding two years.".").
The noble and learned Lord said: There is a mistake in the Marshalled List. This amendment should be in my name. This is specifically directed at a point which is already clear from the earlier discussion. At the moment the temporary sheriff can impose the same sentence as the permanent sheriff. Under the provisions of the Bill—if it comes into force, of course—all the sheriffs will have the increased power to which I have made reference, and the arithmetic of which is not in dispute.
I think it would be highly unsatisfactory that people who are temporary sheriffs—some of whom turn out to be plainly unsuitable and some of whom do not find their commissions removed—are given a power which now is enjoyed only by a High Court judge. For the reasons that I have already explained, I am opposed to this.
I see a vast number of appeals from sheriffs because I see about a fifth or a quarter of all the appeals in Scotland as a sifting judge, a sifting appeal judge, or as a judge sitting in the Criminal Appeal Court. I am not satisfied. I do not have the same confidence in the sheriffs and temporary sheriffs that the noble and learned Lord the Lord Advocate expresses. One sometimes finds that people who occupy temporary judicial office seek to impress someone by being rather macho in their sentencing. One gets this impression from time to time. It is an impression which I have discussed with my colleagues in the Criminal Appeal Court, some of whom rank even higher than I in the judiciary, and it is not a matter upon which there is much disagreement. In those circumstances I hope the Government will undertake to think carefully about the suggestion that temporary sheriffs should not have the power to impose the full sentence. I beg to move.
Lord Mackay of Drumadoon: As the noble and learned Lord said, we have already touched on this matter, but in view of the comments he has just made I am quite happy to reflect on the matter further, discuss it with my colleagues in government and engage in such discussion with others as might assist to form a view as to whether this development would be acceptable. On that basis I hope that this amendment will not be pressed.
Lord McCluskey: On that basis I am happy not to press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 12 shall stand part of the Bill?
The Earl of Mar and Kellie: I oppose the Question, That Clause 12 shall stand part of the Bill on these grounds. I believe that the extension of powers of sentencing by sheriffs should not exceed the point where a prisoner is regarded as a long term prisoner and subject to different liberation arrangements and different conditions of supervision and conditional release. If the
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clause had laid down a maximum of four years, I might have found it a little easier to accept. Certainly SACRO suggested this.
This have been a worrying debate. I am sure that we shall return to it on Report. I was going to say that we shall return to it with a vengeance, but perhaps I should not do so. The debate has been particularly significant.
Lord Sewel: At first reading, Clause 12 may not appear to many of us to be a high profile clause. However, as the debate has progressed the more worried I have become. There is at least the likelihood—I acknowledge that it may be the unintended consequence—that the clause will significantly and adversely affect the nature of the criminal justice system, and in particular the court system, in Scotland. I do not level the charge that the noble and learned Lord the Lord Advocate seeks to bring that about. I think that it would be unintentional. But because of that it is necessary to pause and reflect.
What has struck me most forcefully during the debate is that such a qualitative change in the past has been based upon prolonged consideration and deliberation. From what we have heard this evening, that is lacking in this case, and we should proceed slowly. It is always the case historically that major changes to institutions have occurred by stealth and unintentionally rather than deliberately or by revolution. We may be on the threshold of such a change as regards Clause 12.
I am particularly disappointed that the argument put forward by the noble and learned Lord the Lord Advocate on the reasons for this change has been based on somewhat shortsighted pragmatism—that is, the pressures on the High Court. If there are pressures on the work of the High Court, as there may well be, the challenge is to sort out the High Court, and to make sure that it has the processes, the means and the resources, to do the job properly rather than seeking to transfer down to the sheriff court those cases which should properly rest at the High Court.
During the debate I have become increasingly worried that, quite unintentionally, we may be changing the nature of the criminal justice system and of the court system in Scotland. It is time to reflect. I do not wish to see the House divide on the matter tonight. However, I believe that it would be to the benefit of all parties and of the court system in Scotland if we were to think long and hard about what has been said, perhaps returning to the issue at a later date.
Lord Thomas of Gresford: I have listened to the debate with increasing dismay. It is a matter of deep regret to me that there should be an issue which is so bitterly divisive between respected and senior members of the legal profession and of the judiciary on all sides of the House. I fully concur with what the noble Lord, Lord Sewel, said: that when one has a situation such as this it is wise to go very slowly indeed. Alterations to the constitutional make-up of the courts in Scotland are a matter that must progress with consent on all sides. It cannot be for the benefit of a country for which I have great respect and regard and a legal system that I have long revered to have as divisive an issue as this.

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The Committee will recall that I have frequently said that the confidence of the public in the criminal justice system is critical. I do not believe that confidence has been increased in Scotland by the debate that we have heard tonight. I, too, oppose this clause.
Baroness Carnegy of Lour: I endorse the noble Lord's final remark. I hope that when this subject is raised at a later stage it will be possible for distinguished members of the Bar and the judiciary in this House to discuss it without criticising sheriffs, temporary sheriffs, Crown counsel and others. I do not believe that that helps the public appreciate the legal system at all. We can discuss the issue without criticising different members of the legal profession. I have been quite ashamed this evening to have to be present in this Chamber, with the public listening and where noble Lords may come and go—it is a public forum—and to hear that going on. I hope that we shall not have it next time. I am sorry if I sound pious but I am very depressed by it indeed. The issue is another thing; but the way we do it matters.
Lord Mackay of Drumadoon: We have had a long debate on the issues that arise in relation to this clause. It may be wrong for me to say much more at this stage. Perhaps later I will discuss with the noble Lords, Lord Sewel and Lord Thomas, the possible unintended consequences of constitutional change in view of certain matters about which one has been reading in the newspaper in recent months. It was the noble Lord who said that constitutional change sometimes bring about unintended consequences.
Lord Sewel: We have been consulting for 18 years.
Lord Mackay of Drumadoon: And look where it has got the noble Lord.
Lord Sewel: With a massive majority looming.
Lord Mackay of Drumadoon: There are one or two points that I might profitably feed into the discussion. I am grateful to the noble Lords, Lord Sewel and Lord Thomas, and to the noble Earl for the measured way in which they have sought to bring this debate to a conclusion.
One is that the percentage of High Court judges in Scotland is significantly higher per head of population than in England. That is a factor upon which people may profitably reflect. The second is that the comment made by the noble Lord, Lord Sewel, about seeking to sort out the problems is one of which I am all too well aware as being a very sensible way forward. Certainly so long as I have been Lord Advocate I have sought, with the co-operation of the Dean of Faculty, the President of the
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Law Society, the former Lord Justice General, the noble and learned Lord, Lord Hope, and the present Lord Justice General to address some of the practical problems which the court faces. However, as the statistics to which I referred earlier made clear, there is a major increase in the number of days when the court sits, the number of indictments and so on. It is not just a temporary phenomenon; it is a major practical problem.
The suggestion is that it is important to have consensus on all sides before one goes forward. I think it is fair to say that when the sentencing powers of the sheriff sittings and the sheriff and jury court were increased from two to three years there was not overall consensus about that at that stage. Some people were of the view that it should not be moved at all. There was a substantial body of opinion that it should be moved to a higher figure. A view was taken by government, presented to Parliament and approved at that time. So while I fully accept that these are legitimately matters of public debate, it may be totally unrealistic to expect a unanimity of view. In the event that this House were ever called upon to consider legislation dealing with a Scottish assembly, I suspect that the noble Lord, Lord Sewel, would not expect unanimity of view no matter how long and how eloquently he talked.
Perhaps I may endorse what was said by my noble friend Lady Carnegy as to the comments made when debating issues of this nature. I do not offer any criticism as such but I am concerned that, reported in part, some of the comments that Members of the Committee have felt it appropriate to make could give the impression that there are serious weaknesses in the criminal justice system in Scotland in so far as it relates to the work done in the sheriff court. No doubt there are occasions when mistakes are made and when temporary sheriffs—and indeed permanent sheriffs—fail to get things right. The very nature of our justice system is that there are built into it appeal courts to sort these matters out. I hope that when we return to this matter at Report stage, as we undoubtedly shall, it will prove possible, armed with the additional information I have undertaken to provide, to have a productive debate on issues which are clearly important. In the meantime I hope that Members will be content that this clause stands part of the Bill.
Clause 12 agreed to.
Clause 13 agreed to.
House resumed.

Southampton International Boat Show Bill
Brought from the Commons; read a first time, and referred to the Examiners.
House adjourned at two minutes past eleven o'clock.