HL Deb 06 March 1997 vol 578 cc1982-2026

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 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 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 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 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 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, 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' 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 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.

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
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.
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.
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 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 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 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 moved Amendment No. 69:

Page 7, line 22, after ("shall") insert ("ascertain from the offender—

  1. (a) where he lives and if he intends to move during the currency of the order;
  2. (b) if he works, attends school or any other educational establishment;
  3. (c) if he owns or rents his accommodation;
  4. (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.

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 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 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 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 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 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 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 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 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 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 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 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 McCluskey

moved 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, 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 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 McCluskey

moved 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.

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 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 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 moved Amendment No. 83: Page 11, line 5. leave out from ("so") to end of line 11 and insert ("— (a) vary the order by—

  1. (i) amending or deleting any of its requirements;
  2. (ii) inserting further requirements; or
  3. (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 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 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 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 moved Amendment No. 88: Leave out Clause 4 and insert the following new clause—


(" . 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—

  1. (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;
  2. (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—

  1. (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
  2. (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—

  1. (a) which courts, or class or classes of courts, may make restriction of liberty orders; and
  2. (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 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 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 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 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 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 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 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 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 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 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.

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 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—

  1. (a) convicted of an offence punishable by imprisonment under the Army Act 1955, the Air Force Act 1955 or the Navy Discipline Act 1957;
  2. (b) a civil prisoner, that is to say a person appearing before the court in respect of a civil debt;
  3. (c) awaiting to be sentenced by the court for non-payment of a fine imposed upon him; or
  4. (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 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—

  1. (i) he has examined the patient personally within seven days of appearing in court;
  2. (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;
  3. (iii) he is not related to the offender; and
  4. (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 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—

  1. (a) report on the social circumstances of the person; and
  2. 2025
  3. (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 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 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.