Crime and Punishment (Scotland) Bill

HL Deb 06 March 1997 vol 578 cc2043-86

House again in Committee on Clause 5.

On Question, Whether Clause 5 shall stand part of the Bill?

The Earl of Mar and Kellie

I oppose the inclusion of this clause. However, I must begin by saying that I am now more impressed by the hospital direction than I was initially. From what I recall, to attempt to do what a hospital direction does would otherwise require a person to be sent to prison although he was obviously psychiatrically unwell. The prison doctor then has to try to arrange for him to be transferred to a local psychiatric hospital until he is deemed psychiatrically fit. In that respect, I believe that a hospital direction has some merit.

However, I believe this direction places the patient and the psychiatric staff in a difficult position. I believe it will lead to decisions being made by patients and the staff that will be counter-productive. I suspect that patients will be motivated to avoid appearing to have recovered and that staff will be reluctant to discharge a patient who will then have to go to prison. Bed blocking is the likely outcome. That ought not to be the case. If prisons were the places we would like them to be this would not be a problem. A prison is a difficult enough place to survive in at the best of times. A recent psychiatric patient is a vulnerable prisoner and transfer to prison is an unlikely place for such a person to thrive in. Patients normally have enough trouble readjusting to their own local community.

In prison a prisoner with a psychiatric history is likely to be sorely taxed by some other prisoners and may not have the wit to stay behind his door. That denial of association is in itself an injustice. For those reasons I oppose the inclusion of the clause.

Lord Mackay of Drumadoon

I am grateful to the noble Earl for acknowledging that our discussions this evening have to some extent persuaded him that there is merit in the clause. For that reason it may not be necessary for me to say too much more, and certainly not to rehearse the arguments we discussed earlier.

However, it may be helpful to remind the Committee that at the present time, as I explained earlier, there are occasions when prisoners sent to prison by the courts require to be transferred to hospital and indeed require to be transferred by order of the Secretary of State under Section 71 of the Mental Health (Scotland) Act 1984. If, having had treatment in the hospital, they are fit to be discharged from hospital, they can go back to prison if the sentence has some way to run.

Information available suggests that about 60 prisoners a year are transferred to hospital by the Secretary of State. About 20 a year are transferred back to prison. The remainder tend to remain in hospital until they are discharged into the community on the expiry of their sentence. That indicates that, while we are dealing with difficult problems as regards individual prisoners, there are not a huge number affected by the current provisions. We anticipate that that will apply when the new power comes into force. We expect that the courts will use this power only sparingly as an alternative option to the present powers.

The noble Earl mentioned the problem of bed blocking. It could arise for more than one reason. One suspects that trained and experienced psychiatrists will be aware in most instances of the prisoners who are feigning continued mental health problems, although, as the noble Lord, Lord Macaulay, mentioned earlier, there are occasions when psychiatrists are misled by what the patient says to them. We do not believe that there will be many such instances. I see force in the comments made during the English Bill debates that psychiatrists may have a reluctance to send prisoners back to prison for fear of undoing the good that treatment has brought about. However, I am sure that when the provisions come into force psychiatrists will be aware that to work properly they have to respect the intentions underlying the legislation; that is, to give this additional option to that of the hospital order which currently exists.

We hope that people made subject to a hospital direction in addition to a prison sentence will not require to spend too long in hospital before they serve the rest of their sentence, and that bed blocking—it is undoubtedly a problem which will have to be borne in mind—will not prove to he as much of a problem as is suspected at present.

I hope that those further remarks have served to convince the noble Earl that the clause should stand part of the Bill and that he will not insist on his opposition to it.

Lord Monkswell

Before the noble and learned Lord sits down, for the benefit of the Committee perhaps I may ask him about some other statistics. He mentioned the number of prisoners transferred into a secure mental institution on the direction of the Secretary of State. Can the noble and learned Lord advise the Committee how many are subjected to hospital orders on the direction of the court without the prison option introduced by the Bill?

Lord Mackay of Drumadoon

I do not have to hand the information that the noble Lord seeks. It is part of the statistics that are published regularly. I shall ensure that copies of the relevant section are sent to the noble Lord.

Lord Thomas of Gresford

Can the noble and learned Lord the Lord Advocate explain what is wrong with the present system? As I understand it, if a person sent to prison is mentally ill, under an ordinary hospital order he can be sent to a hospital where he will remain and be treated. I fail to understand why it is necessary for the court to become involved in making an order of this type at the very beginning. I do not understand why it cannot be left in the hands of the medical people who look at a prisoner at a time when it is thought he needs assistance of that kind. The undoubted effect of the hospital direction order now proposed is that the psychiatrist becomes the gaoler. He determines when his patient returns to prison. A person who has been inside a psychiatric hospital and is on the point of recovery is at his most fragile at that point. He is to be sent back to prison without the support that he could expect to receive within the community. I have yet to hear the case made for giving this power to the courts to determine these issues at the stage of sentencing.

8.15 p.m.

Lord Mackay of Drumadoon

I hope that the noble Lord will forgive me but I do not recall whether he was in the Chamber when I discussed the matter earlier and referred to chapter 13 of the White Paper which deals with this option. I cannot speak with any experience or knowledge of the position in England. But undoubtedly there are cases in Scotland where, when an accused person comes to be sentenced having been convicted of a serious crime which would undoubtedly warrant imprisonment as opposed to any other disposal, the issue arises as to whether the accused man requires medical treatment. With a measure of regularity, defence counsel draw this to the attention of the court. All the court can do at present, if it is not minded to impose a mental health order as frequently the court is not minded to do, is to indicate that the information presented to the court about the mental illness of the accused will be forwarded to the prison authorities. They will take such action as they deem appropriate to arrange for the prisoner to receive psychiatric treatment, whether as an outpatient while still in the prison, or by being transferred to hospital whether or not under the direction of the Secretary of State.

This perceived weakness in the sentencing procedures in Scotland was examined prior to publication of the White Paper. As the White Paper records, the Government consider that there is a case for providing the court with a combination option. It will allow the court to recognise the offender's need for immediate hospital treatment yet also specify the duration of an overall custodial disposal. The Department of Health working group on psychopathic disorders chaired by Dr. John Reed recommended the possibility of such a hybrid order being looked at for psychopathically disordered offenders. Such an order might also be appropriate, for instance, for offenders who were sufficiently ill to warrant hospitalisation at the time of sentence but who were not ill, or were much less so, at the time of commission of the offence.

It is clear from the consultation that the Government have undertaken that this is a perceived gap in our sentencing options. There is support for filling that gap. Equally, there are certain practical problems. I recognise the force of what was said earlier about the problems that psychiatrists may face in individual cases. However, the perception is—in my respectful submission, it is valid—that because the hospital order hands over to the hospital authorities in many cases the decision about when the prisoner is released into the community, that may dissuade the court from following that route, while the alternative option is a simple prison sentence without the court having any input in a binding sense as to whether or not treatment is received. That is the gap which this provision seeks to We are satisfied that the proposal has sufficient support to merit the provision in this Bill.

It is to have broader effect in Scotland than in England. That is because it appears to have the support which we feel is necessary to take it forward. It is unfortunate if an individual case gives the impression that the psychiatrist is a gaoler. That is not the intention. I hope that with experience of the provision that will not prove to be the case.

Lord Thomas of Gresford

I am most grateful to the noble and learned Lord the Lord Advocate for his very full and complete exposition of the reasoning behind the proposals. Is the weakness that is identified a weakness that the public may feel that a hospital order is a soft option and therefore a sentence of imprisonment should be passed to express public displeasure in response to a particular crime regardless of the mental condition of the individual? Is that the weakness that is being pinpointed, or is there some other weakness that I have missed?

Lord Mackay of Drumadoon

No, that is not the weakness on which I seek to base this proposal. It is the fact that the court, in dealing with such offenders, is dealing with people convicted on indictment of serious offences for which a measure of punishment is appropriate to take account of the criminal conduct of which the accused has been convicted and offences for which a measure of public protection is required against the consequences of reoffending. There may be a perception on the part of some members of the public that a hospital order is a soft option; but it is the perception of those involved in the criminal justice system, whether as lawyers or other practitioners, that in some instances it is not an appropriate disposal for prisoners convicted of serious violent offences who have mental illness but who require to be removed from society for both punishment and public protection purposes. So it is not merely a question of pandering to any concern on the part of the public which brings this matter forward. It is a concern expressed by many practitioners in the field—lawyers in particular—that there is a gap that needs to be filled. We believe that this is the way to fill that gap.

Clause 5 agreed to.

The Earl of Mar and Kellie moved Amendment No. 96: After Clause 5, insert the following new clause—

SUPERVISED ATTENDANCE ORDER: CONSENT

(". At the end of paragraph 1(1) of Schedule 7 to the 1995 Act insert "or

(c) the offender consents".").

The noble Earl said: This amendment appears in a rather strange place on the Marshalled List; namely, between clauses about mentally disordered offenders. The amendment is concerned with supervised attendance orders. It is aimed at restoring the principle of having an offender's consent to a supervised attendance order. This was incorporated in the 1990 legislation but withdrawn in subsequent legislation in 1995.

Supervised attendance orders are part of a range of community sentences which are both useful and essential. Along with probation and community service, they are a good opportunity for the offender to begin to move on from offending. Counselling and advice are the key. But the offender must be ready for it—that is, beginning to doubt the wisdom of his criminal career. No social work report is required where a supervised attendance order is to be made. That can result in an order being made on an unwilling offender who would rather go to prison. There are some; it is easier than compliance and perpetual hassle about breaching the order. The social work department has to serve the order, explain its effect, and get the person to sign the back of the order to that effect. Appointments are then made for the offender. Any failures to attend have to be witnessed and recorded. Breach proceedings have to be started and, in the event of a contest in court, a proof, with witnesses, is required. I assert that that process is unnecessary when an offender could have indicated his unwillingness and progressed to the alternative sentence, which would have presumably have been imprisonment. Similarly, an offender planning, for example, to move to England for a fresh start, possibly with relatives, could be given the opportunity to say so. I believe there is no equivalent in England of the supervised attendance order. I beg to move.

Lord Mackay of Drumadoon

As the noble Earl will appreciate, supervised attendance orders were conceived and introduced by the present Government as an innovative means of providing the courts with an appropriate alternative to a custodial sentence for those who could not pay their fine and were therefore in default of the order to pay the fine and faced a term of imprisonment in default of that payment. They are designed to be a constructive alternative to sending the accused into custody for non-payment. Time and again we hear the cry that people who refuse or who are unable to pay fines should not be sent to prison for very short periods of time thereby clogging up the prisons with people who ought not to be there.

Were a choice to be offered for this disposal it would be the choice of either accepting the attendance order or of going to prison. We do not believe that that is an appropriate choice to give an offender. If he is brought before the court, it is wholly unrealistic to put that forward as a sensible option to which a responsible answer could be given which would effectively veto the right of the court to impose this order if the accused said so.

We are in an entirely different field from other community based disposals such as probation and community service orders where full co-operation is essential and it is reasonable to seek consent. In this situation a fine has been imposed and has not been paid—normally because an accused cannot pay it. Notwithstanding any views expressed by the accused, which can no doubt be articulated, we do not believe that the court should be precluded from seeking this as an alternative to sending a possibly young and impecunious offender to prison just because that was his stated preference. We do not believe that he should have that right. We do not believe that it would be constructively used were it to be available. Therefore, we do not find it possible to accept the amendment.

The Earl of Mar and Kellie

I hear what the noble and learned Lord says. In logical terms he is probably right. However, I recall leading a community service by offenders team. If everybody was reasonably content the work squad could get on with things; if anybody was unhappy, everybody became unhappy. The amendment was suggested by CoSLA. I brought it forward because I recognise that there is nothing worse than having on such a scheme someone who is unwilling and who lowers morale, which is always shaky enough. However, having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 97: After Clause 5, insert the following new clause—

SUPERVISED ATTENDANCE ORDERS: ALTERNATIVE DISPOSALS

(" .—(1) Schedule 7 to the 1995 Act (supervised attendance orders) shall be amended as follows.

(2) In paragraph 4(2) at the beginning insert "Subject to sub-paragraph (4) below,".

(3) After paragraph 4(3) insert

"(4) In the application of sub-paragraph (2)(a) above to an order made under section 236 of this Act, the court may alternatively revoke the order and impose such other disposal as it could have made had it not imposed a fine or a supervised attendance order."

(4) In paragraph 5(1), at the beginning insert "Subject to sub-paragraph (1A) below,".

(5) After paragraph 5(1) insert— (1A) In the application of sub-paragraph (1) above to an order made under section 236 of this Act, the court may alternatively revoke the order and impose such other disposal as it could have made had it not imposed a fine or supervised attendance order.".").

The noble Lord said: On the face of it this is a rather convoluted amendment tabled to elicit the Government's response to its terms and so that those who are involved with young people can consider whether the legislation should stand as it does at the moment. The result may very well be that a young person will end up in prison anyway as a result of his inability to pay a fine. Given the present restrictions on 16 and 17 year-olds, who do not receive any money from the Government, there is no way that they could possibly pay a fine and they will therefore end up in prison, whereas an adult might very well not end up there. That is the objective behind this proposal. I beg to move.

Lord Monkswell

I rise to support my noble friend on this amendment. Following the debate on the previous amendment, it is probably worth pointing out that, as I understand it, if the offender does not consent to a supervised attendance order in the manner that the noble Earl, Lord Mar and Kellie, suggested, it would be within the offender's power to breach the requirements of the supervised attendance order and, as a result, go to gaol. My noble friend's amendment provides another route to dispose of the problem and it may be useful for the Government to accept it.

8.30 p.m.

Lord Mackay of Drumadoon

Members of the Committee who are interested in this topic will be aware that it was raised earlier in the passage of the Bill and the response which the Government gave on that occasion is believed to be as valid today as it was then.

At present the relevant legislation as it applies to 16 and 17 year-olds allows the court, when dealing with any failure to comply, to vary the length of the attendance order or impose a custodial sentence. Before imposing a supervised attendance order on this age group, the court requires to have concluded that a fine—not a community-based disposal such as probation—is the appropriate disposal for the offence.

In those circumstances it will impose the attendance order either in default of the fine or on the basis that the offender is unlikely to have the capacity to pay the fine. In such a case the court will recently have concluded that the appropriate new order disposal is a fine but that the offender cannot pay the fine. We find it difficult to see what could have occurred in the interval between the imposition of the order and the offender's failure to comply which would enable the court to come to the view that some other disposal is now appropriate. For that reason we do not think it appropriate to accept changes to this aspect of the legislation.

A pilot scheme in respect of this age group will commence in Dundee in April this year. It is suggested that there may be some scope for fining offenders who fall within it and I would not demur from that suggestion. We believe that there will be value to be gained from this pilot scheme. We shall look at the results carefully and they will no doubt be made public in due course.

I recognise that the purpose behind the amendment is to reduce the risk of an early custodial sentence for members of this limited age group. However, we are optimistic that, by funding this project in Dundee targeted on young offenders who are made subject to these orders and firmly chasing them up and ensuring that their performance of the order is monitored, early indications of a possible breach will be spotted and action taken to prevent it.

I hope that, on an assurance that the Government are alive to the problems which offenders of this age face and are doing something positive to examine them in greater detail, the noble Lord will be persuaded that it is not necessary to insist on the amendment at the present time.

Lord Macaulay of Bragar

I said at the outset that this was a rather convoluted amendment. At this time of the evening it is rather difficult to follow the explanation in response by the noble and learned Lord the Lord Advocate. It might be better to leave it until tomorrow to see the Official Report. No doubt what the noble and learned Lord said will be looked at with interest. It is not without significance that there is a ship in the harbour at Dundee called the "Discovery". Perhaps the Government will take a voyage of discovery and in due course report back to the House on their findings. I hope that they find a pilot when they get to Dundee. We shall see how it works out. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Effect of hospital direction]:

[Amendment No. 98 not moved.]

Lord Macaulay of Bragar moved Amendment No. 99:

Page 15, line 23, leave out from ("appropriate") to end of line and insert ("and before making such a direction the Secretary of State shall consult and obtain reports from—

1. (a) the managers of the hospital concerned:
2. (b) the medical practitioners who furnished their reports to the court under section 59A(3)(a) of this Act:
3. (c) the mental health officer who appeared before the court pursuant to section 59A(d) of this Act; and
4. (d) any other person who, in the opinion of the Secretary of State, might be appropriate in the circumstances.

(3A) The Secretary of State shall not be entitled to name a state hospital when making such a direction.").

The noble Lord said: The objective behind the amendment is to retain some measure of control over what happens to an offender who has been dealt with by the court and who for some reason has to be moved from one hospital to another. The amendment does its best—it may not be a very good best—to paint a picture of the people who should be consulted before any change is made in the patient's status and to give the patient a measure of protection to ensure that any good work that has been done is not undone by moving him unnecessarily from hospital to hospital. I beg to move.

Lord Mackay of Drumadoon

We consider that this amendment is inappropriate. At an earlier stage the Government accepted proposals from the Opposition that the maximum time it must take to convey a person from court to hospital is seven days. We accept that, if a person is in immediate need of hospital treatment, they should go to hospital as quickly as possible. However, we must accept that within that seven-day period certain emergencies could arise in relation to the hospital concerned: a fire, a medical epidemic of some sort or a serious incident involving patients which would make it impracticable to admit the person as originally planned. In such an event the priority should surely be to get the prisoner to hospital so that the treatment can start, even if that involves going to a hospital different from that originally specified. If the Secretary of State had formally to consult and obtain reports from at least three more people, it is unlikely that that could be done within seven days. Pending its being done, the person would in any event require to remain in limbo, presumably in gaol, and their access to hospital treatment would be delayed.

The Opposition cannot have it both ways. If Members of the Committee are satisfied, as I am sure they will be, that the priority is swift admission to hospital to start treatment, some flexibility is required. I therefore hope that, to take care of the rare events that I have indicated, the noble Lord will be persuaded to withdraw this amendment.

The Earl of Mar and Kellie

I should like to return briefly to a point we were discussing before the dinner break; namely, the mental health officer's involvement. It strikes me that we are bringing a bit of English practice into this. In Scotland the normal process has been that the Scottish ambulance service takes people to hospital and the mental health officer—who is, after all, a specialist social worker—is not required to undertake the actual transport, though he or she is certainly responsible for safeguarding the patient's interests in the community.

I am worried that we are going down the English route, which ends up with social workers having to transport people in their own private cars. I shall not bore the Committee by reminiscing on my exploits with the social services department in Sheffield, but I believe that it is better that social workers should not have to transport such prisoners in private cars.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord the Lord Advocate for his explanation concerning what I have already described as a very delicate area of life. The main objective is to protect the person, who is not, to say the least, in a very fit or stable position. The noble and learned Lord said that these Benches could not have it both ways. We do not look at the matter in that way at all.

This is a specialist area in which, to be honest, I do not have any particular expertise—indeed, I doubt whether many Members of the Committee have such expertise. As laymen, we can only do our best to protect the individual from himself and protect society from the individual. I shall read with interest what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sewel moved Amendment No. 100:

Page 16, line 8, at end insert— ("(6) A patient shall not be remitted to prison in accordance with subsection (5)(a) above until and unless—

1. (a) the case has been referred back to the court that imposed the hospital direction; and
2. (b) the court is satisfied that the remittance to prison would not be injurious to the patient's mental health.

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

1. (a) impose a hospital order (with or without a restriction order); or
2. (b) impose no further penalty.""

The noble Lord said: This is perhaps one of the more important amendments that we have discussed recently. Its effect is quite clear. It is to ensure that a person subject to a hospital direction is only transferred from hospital to prison when the sentencing court is satisfied that his mental health will not deteriorate as a result of admission to prison.

This is a very difficult and sensitive area. It concerns people whose mental health is such that they require help from the hospital services but who have achieved a state in which it is appropriate to move on to the more punitive aspects of the disposal. The amendment ensures that the decision to admit to prison lies with the court. That is important. That does not endanger the patient-doctor relationship. One can imagine a situation in which an offender has developed a positive relationship with a doctor. When the possibility of that person getting better brings with it a punitive element, the decision should clearly be removed from the doctor-patient relationship and be referred back to the court.

Basically and fundamentally, the argument behind the amendment is that people should not be punished for mental disorder. They should be treated for mental disorder and not punished. The amendments are also designed to guard against the risk of transferring to prison offenders who would more appropriately continue to receive hospital treatment.

The amendment seeks to reduce the risks of persons being moved to prison and subsequently becoming ill as a result of the transfer. There is absolutely no point in bringing about a transfer from hospital to prison if that endangers the mental health of the offender. That is a legitimate cause for concern. We do no one any service by going down that path.

After all, what is the purpose of providing treatment? It is to improve the mental health of a patient. If a return to prison of itself would jeopardise the gains that had been made as the result of quite extensive hospital interventions in many cases. That is surely not in the public interest.

The amendment would provide a safeguard, through the independent scrutiny of the court, against the possibility of inappropriate or premature transfer brought about by a shortage of bed spaces or disruptive patient behaviour. Such subsequent changes in the way in which the offender is treated should come back to the court for decision and not be subject to a routine process. I beg to move.

8.45 p.m.

Lord Mackay of Drumadoon

As the noble Lord, Lord Sewel, will be aware, these amendments were discussed in another place. At that time it was indicated that they were not acceptable to the Government, for reasons which I should explain to the Committee. We are not attracted by the proposals because they appear to be based on the assumption that hospital doctors will recommend to the sheriff, or indeed to the Secretary of State, a course of action which would run contrary to the patient's best interests; in other words, a course which would be injurious to his or her mental health.

We are dealing with these issues in the context of hospital direction orders, but they arise when prisoners are subject to a transfer from prison to hospital because they have become ill and are then transferred back to prison. Perhaps I should explain what is done on such occasions.

The Committee will appreciate that if the illness is recovered from or is sufficiently treated while the offender's sentence of imprisonment is still running and the patient does not require to remain in hospital, the only exit route from hospital is back to prison. But at the present time that can take place only when the Secretary of State is satisfied that certain criteria set out in the 1984 Act have been fully met. Those criteria are to be found in Section 74(2) of that Act. They are either that the person is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment or that it is not necessary for the health or safety of the person or for the protection of others that he should receive such treatment. In either case, the Secretary of State also requires to be satisfied that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.

Before the Secretary of State makes an order, very detailed consideration is given to it. The condition of the patient will be thoroughly and painstakingly assessed by the doctors in the hospital in which he is detained. It goes without saying that no recommendation for the prisoner's return to prison will be made unless the doctors are satisfied that the statutory criteria to which I referred have been met. I am sure that the Committee will be satisfied that it would be difficult to suggest otherwise.

Furthermore, any recommendation from the hospital for return to prison is at present considered by the Secretary of State's own psychiatric adviser. I hope that the Committee will not misunderstand what is meant by that reference. I am sure that my right honourable friend would not do so. The psychiatric adviser requires to be satisfied also that the relevant criteria will be met before transfer to prison is authorised.

Our experience has been that the system has worked very well. That is an indication of the thoroughness of the procedure and the care taken by all psychiatrists who have occasion to handle prisoners who suffer from mental illness susceptible of treatment. I have already mentioned earlier this evening that there are some 60 transfers a year from prison to hospital, but a much smaller number of prisoners are transferred in the other direction, being somewhere in the region of only 20 every year. Most prisoners who leave prison to go to hospital remain there and are released direct into the community on expiry of their sentence.

We believe that that demonstrates the rigorous attention which those involved in the field of psychiatric health pay to treating those people. We doubt whether it would be appropriate to give an appeal by the patient to the sheriff for the reason that it would involve challenging the view of people who have had day-to-day care of the patient while in hospital.

However, there are other fundamental difficulties with what is proposed. If the sentencing court originally considered it appropriate to pass a sentence of imprisonment and at the same time to make a hospital direction, it would be wrong to go back to the court some months or even years later and effectively invite the court to reconsider the matter. The procedure in dealing with sentence is that the sentence is imposed by the trial court, subject to review by the Court of Appeal. It is the latter court which should set aside the original sentence, not the original sentencing court.

I hope the Committee will be satisfied that this issue has been carefully considered. The proposal is a new one to fill the gap in the scheme of sentencing, as I mentioned earlier. The alteration to our proposals spelt out in the amendments would not be of value; they would involve an unnecessary addition to the procedure. We have the fundamental objection that the court, some years later, would be reviewing its own decision or possibly one sheriff or one High Court judge reviewing the decision of another sitting in isolation. There is no reason to believe, from the history we have of hospital orders and the operation under Section 74(2) of the 1994 Act, that the psychiatrists who treat such individuals are not performing a splendid service. For that reason, I invite the noble Lord to withdraw his amendment.

The Earl of Mar and Kellie

Perhaps I can make a brief observation. We have been talking about the people who are transferred from prison to hospital under Section 79. In fact there will be even fewer who are eligible for a hospital direction because of the fact that they have to be psychiatrically ill at the point of conviction rather than developing a psychiatric illness during their sentence. Therefore, the numbers involved will probably be in single figures.

Lord Sewel

Perhaps I can say at the outset that on this side of the Chamber it is enormously consoling to know that the Secretary of State for Scotland has psychiatric advisers. Many of us thought that that was an omission and we are glad to see that it has been rectified. I rest more easily in my bed at night knowing that, as I am sure do most of the population of Scotland.

Lord Mackay of Drumadoon

Perhaps I can intervene to invite the noble Lord to convey to Mr. Robertson that it is my belief he will never need a psychiatric adviser.

Lord Sewel

I am sure that he will never need a psychiatric adviser. I have the benefit of being married to a clinical psychologist, who gives me all the advice I need.

The outstanding issue is that we have some assurance that when it comes to the point of transfer from a hospital to prison, the effect of that transfer on the mental health of the individual concerned will be adequately taken into account when the transfer is approved. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [Remand of persons suffering from mental disorder to private hospital]:

On Question, Whether Clause 7 shall stand part of the Bill?

The Earl of Mar and Kellie

I seek the deletion of Clause 7. I have long held the constitutional view that citizens being detained by the state should be looked after by the state. The use of private contractors may be appropriate where the patient can give consent. But the situation in Clause 7 is far from that.

I shall be interested to hear from the noble and learned Lord the Lord Advocate how many private hospitals are ready to receive psychiatric patients from custody. Also, can he say why the National Health Service in Scotland has been allowed to run down to the point where it cannot receive those few who are likely to be transferred on remand?

Lord Mackay of Drumadoon

Clause 7 is a short and simple clause. It is designed to remove an anomaly in the Mental Health (Scotland) Act 1984. At present Section 71 of the Act enables a sentenced prisoner to be transferred to either a National Health Service hospital or a private hospital registered under Part IV of the Act. That indicates that Parliament has approved private hospitals being used for that purpose. Section 70, however, prevents remand prisoners from being transferred to a private hospital. That seems an illogical and unduly restrictive distinction to make. Decisions on the appropriate hospital location for an individual should depend on his particular circumstances, including the level of security required, not on whether he is a remand or sentenced prisoner.

Indeed, there may well be an argument that it would be contrary to the interests of the prisoner for him to be detained in one hospital pending the trial and sentence and then to be moved to another to begin the sentence. If he is to be in hospital because he suffers from a mental illness which justifies such detention, there is force in the argument that he should remain in the same hospital throughout.

The noble Earl will be aware that any private hospital used under Section 71 of the Act requires to be registered in accordance with the conditions laid down by the Secretary of State. Those include conditions relating to the security appropriate for people being detained, the levels of medical and nursing staff, the standards of treatment and so forth.

My understanding is that there are no private hospitals currently registered under Part IV of the Act at the present time, nor are any applications under consideration. However, the view has been taken that the anomaly exists. For that reason I hope the noble Earl will be satisfied that it is sensible to amend the legislation to remove the inconsistency so that in a specific case, if private hospitals come on stream, it will be sensible to allow them to treat offenders from the moment they are arrested and awaiting trial through to the period when their detention in a hospital rather than prison is deemed to be no longer necessary.

Clause 7 agreed to.

Clause 8 [Power to specify hospital unit]:

Lord Macaulay of Bragar moved Amendment No. 101: Page 18, line 15, after first ("unit") insert ("provided that the hospital managers have confirmed to the court that they will admit the person to such unit").

The noble Lord said: This is a fairly simple amendment which is self-explanatory and continues the theme which we hope we have managed to portray from this side of the Committee; that is, that we are looking to the protection of the individual and of the public and to put as few people at risk as possible. The amendment seeks to insert the words, provided that the hospital managers have confirmed to the court that they will admit the person to such unit".

It may appear to be a fairly basic and perhaps unnecessary amendment. But the reasoning behind it is this. Before a potentially disruptive person is sent to a hospital, it should be cleared with the managers of the hospital, first, that that person is best in that hospital; secondly, that he or she can be accommodated in that hospital without disrupting the regime; thirdly, that the hospital is satisfied that it has the provision to keep the "patient" in the hospital for his own safety and also for the safety of the public.

On the face of it, it may appear to be an unnecessary amendment. However, if the Lord Advocate and his advisers give it a little thought, they will see that it adds to the protective shelter we are trying to give to the patient and the public. With that introduction, I beg to move.

9 p.m.

Lord Mackay of Drumadoon

I appreciate what lies behind this amendment. We had occasion to look at the point it raises before when the Bill was in another place. It is essential that before making an order committing a person to hospital the court is assured of the availability of a bed in conditions which match the patient's medical requirements. Where either a hospital order or direction has been made under Sections 57, 58 or 59A of the 1995 Act, the court will require to be satisfied that a bed will be available in the hospital concerned. The period is currently within 28 days of the making of the order, but in the future, in the light of the point I mentioned a few moments ago about the seven-day period, that period will be shortened from 28 to seven days.

Before a court makes an order it is clearly appropriate that it should be assured of this availability. That is what happens at the moment. The current practice will be reinforced in the future by virtue of the provisions of Clause 9 of the Bill which require that one of the medical practitioners whose evidence is to be taken into account under Sections 53, 54, 57, 58 and 59 of the 1995 Act must be employed at the hospital concerned—the hospital to which it is proposed to admit the offender. Such a medical practitioner is therefore uniquely placed to give the court any assurance it may seek. My right honourable friend the Secretary of State would never make such a transfer under the existing provisions of the 1984 Act unless he was so assured.

This issue is addressed in codes of practice which are currently being revised in terms of the procedure laid down in Section 119 of the 1984 Act. Therefore I am in a position to give an assurance to the Committee that the importance of bed availability is already addressed in the Bill and in the legislation in the ways I have indicated. It is addressed in the code of practice. It is certainly not being ignored. In my experience it is a matter which is always touched on when mental health orders are made, whether in the civil or the criminal courts. With those assurances, I hope the noble Lord will be satisfied that he can withdraw his amendment.

Lord Macaulay of Bragar

I am grateful to the Lord Advocate for his full explanation of the position in relation to these unfortunate individuals. At the moment at least I am satisfied with that explanation with regard to this difficult field of human relationships. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Medical evidence in relation to mentally disordered offenders]:

Lord Sewel moved Amendment No. 102: Page 19, line 5, at end insert ("and shall be approved for the purposes of this section by a Health Board as having special experience in the diagnosis or treatment of mental disorder: and the other recommendation shall, if possible, he given by the patient's general practitioner or another medical practitioner who has previous acquaintance with him.";").

The noble Lord said: The effect of the amendment is to ensure that one of the doctors recommending hospital admission will be a qualified psychiatrist and that the other, if possible, should be the accused's GP or another doctor who is familiar with the individual concerned. The reasoning behind the amendment is obvious. In making such an order the court needs the best possible information before deciding whether or not to make a hospital direction. A properly qualified psychiatrist is the kind of person to whom one would turn for advice and to inform the court.

The amendment ensures that the doctor giving the advice to the court in such circumstances is someone who is properly qualified. I would accept wholeheartedly that in the normal course of events that would be the case, but we want to make it clear in the Bill that appropriate qualification is a requirement for someone who is giving such fundamentally important advice to the court in this delicate and difficult area. In addition, the patient's own doctor is the person best placed to have knowledge of how the individual has behaved in the past and indeed whether hospital would be the most appropriate place for the individual to be treated.

The amendment mirrors the requirement for medical reports before a patient can be admitted under the civil detention proceedings of the Mental Health (Scotland) Act 1984. It is appropriate that those requirements under civil detention are recognised as we move into the area of criminal law. The amendment seeks to ensure that the court is in a position to receive the best, most helpful and most appropriate advice in making what I think we all freely recognise is often an extremely difficult and sensitive decision. I beg to move.

Lord Mackay of Drumadoon

I understand what lies behind the amendment. However, having reflected further on it, we remain of the view, as we expressed in another place, that it is not a sensible alteration to the clause.

Perhaps I should remind the Committee that before a hospital direction could be imposed, in terms of the new Section 59A(3)(b) as set out in Clause 5, medical practitioners will be required to, describe the person as suffering from the same form of mental disorder, being mental illness or mental handicap, whether or not he is also described by either of them as suffering from the other form". The proposal is that the medical practitioners should include someone who has special knowledge and experience of mental disorder and is approved for this purpose by the health board, while the other shall, if possible, be the patient's general practitioner or some other medical practitioner who has previous acquaintance with him. In other words, if it is possible to seek the assistance of the general practitioner, that requires to be done in preference to obtaining the assistance of another psychiatrist.

We are dealing here with mental illness, which, as we have discussed earlier today, is not always easy to diagnose and is certainly not always easy to treat. We believe that it would not be right to involve, to provide the second opinion, the accused's general practitioner or some other medical practitioner who did not have special experience of mental illness. The subsection that I read from Clause 5 stresses how both practitioners have to come to the same diagnosis of mental disorder. If we had a situation where general practitioners were becoming involved in this work, no matter how experienced they were in the work of general practice, where undoubtedly people with mental illness problems have to be treated from time to time, we believe that there would be more scope for disagreement, which would not be in the interests of the accused.

It is important to bear in mind that these orders concern people who are going to be admitted to hospital, where they are going to be treated not by general practitioners but by psychiatrists with special experience in the field. For that reason, we believe that both reports should come from those who have that experience. On that understanding, I hope the amendment will be withdrawn.

Lord Sewel

I clearly recognise the noble and learned Lord the Lord Advocate as having some power in his arguments on this occasion. On that basis, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 [Increase in maximum period of interim hospital orders]:

On Question, Whether Clause 10 shall stand part of the Bill?

Lord McCluskey

Clause 10 seeks to make an amendment to Section 53 of the 1995 Act, which provides or makes it competent for the court in certain circumstances to make an interim hospital order. That is an interim hospital order in respect of an offender—that is to say, a person convicted in the High Court or in the sheriff court; or charged in the latter court, but not convicted although the sheriff is satisfied that he committed the act or made the admission charged; or remitted to the sheriff court from the district court under broadly similar circumstances.

That is the offender. If he is suffering from a mental disorder within the meaning of Section 1(2) of the Mental Health (Scotland) Act 1984, an interim hospital order may be made. The provisions of subsection (6) indicate that that order at the present time shall be for a period not exceeding 12 weeks and it may be renewed for periods of 28 days at a time, but no such order is allowed to continue in force for more than six months in all.

That is the general background to this particular clause. What is now proposed is that these interim hospital orders should be able to be lengthened. I ask Members of the Committee to note the word "interim". We are talking about a relatively short-term thing. It is something which is contemplated and suggested in paragraphs 13.6 and 13.7 especially, of the White Paper. Paragraph 13.6 talks about a "hospital direction" to be attached to a sentence of imprisonment at the same time as imposing any sentence. Paragraph 13.7 states, It is also proposed to extend the maximum duration of the interim hospital order from 6 to 12 months and to extend its use so that it might also be a precursor to the making of a hospital direction". So we have the interim order being used as a precursor to the making of a hospital direction, but after the conviction of a person. So what is now contemplated is that a person is convicted and the court's decision on whether or not to sentence him may be postponed for 12 months. That is clear from the last few words of paragraph 13.7, which state that the making of such an order, might result in a clearer picture and prognosis of the person's condition as a better basis for informing the court's ultimate decision on disposal". My difficulty is to reconcile that with new Section 59A which is to be added as a result of Clause 5 of the present Bill. That relates to the making of a hospital order in addition to any sentence of imprisonment and to Section 53(4) of the 1995 Act, which states that, where a court makes an interim hospital order, it shall not make any other order for detention.

I find it slightly difficult to understand how the sections and new sections will work together. I am particularly concerned about the fact that at the moment there may be three renewals, each of 28 days, effectively taking the three months up to six months, but the new provision will permit a further six sets of 28 days, thus effectively raising the period to 12 months. I should like to know the justification for taking what is essentially an interim measure and turning it into a measure that might be effective for 12 months. I should like the Government to explain the justification for that before I consider my position further.

9.15 p.m.

Lord Mackay of Drumadoon

The justification for the proposal is to give further flexibility to the sentencing court in cases where the mental illness of the accused is an important factor.

As the noble and learned Lord pointed out, the proposal was discussed in the White Paper. That White Paper records the fact that in its current form the interim order is not extensively used at present prior to the making of a hospital order, but that greater use of the interim hospital order and the period of initial assessment and treatment which it permits might result in a clearer picture and prognosis of the person's position as a better basis for informing the court's ultimate disposal.

We consider that the extension is justified when dealing with particularly complex cases. It will give doctors and others involved more time to observe and report on the individual for the benefit of the court before any final decision is taken.

The consultation exercise did not result in anybody disagreeing with the proposal. Furthermore, the Mental Welfare Commission, which was consulted, was very definitely in favour of it.

The noble and learned Lord quite properly raised the point that the provisions would extend the period during which an accused person would be in hospital under an interim hospital order pending imposition of sentence. However, as I read the provisions of Clause 11, which will amend Section 210 of the 1995 Act, that period would be taken into account in assessing the period of any sentence of imprisonment if the ultimate disposal was to be imprisonment linked with a hospital direction. If, on the other hand, the ultimate disposal was to be a hospital order, the matter would be academic. If any question of imprisonment arises—whether in isolation or in tandem with a hospital direction—there would be no question of any double jeopardy in the sense of the accused person spending longer in custody than might otherwise be the case.

As I have said, the proposal has received support. The Mental Welfare Commission, which has a statutory duty to have regard to the mentally ill in Scotland, is firmly in favour of it. Therefore, I hope that with that explanation the noble and learned Lord will withdraw his opposition to the Question That Clause 10 shall stand part of the Bill.

Lord McCluskey

I am still concerned that, as a result of the amendment with effect to Section 53 of the 1995 Act, the period between conviction and the court perhaps ordering imprisonment may be as long as 12 months. As I understand it, because the purpose of the interim hospital order is partly to allow the court to assess the future prognosis, at the end of that period—perhaps 12 months later—the court may decide to impose a sentence of imprisonment. If the sentence of imprisonment turns out to be less than 12 months—and particularly if it is substantially less than 12 months—one ends up with the odd situation of a person who does not deserve a period of imprisonment of as much as 12 months (in the view of the court) in fact being required to stay in hospital for that period as a result of a succession of these orders.

Although I have outlined my concerns, at this hour of the night I do not wish to do any more. I shall read with interest in the report of today's proceedings what the noble and learned Lord has said. I am comforted by the fact that the bodies to which the noble and learned Lord referred have given support to the measure following consultation. Therefore, I shall not pursue the matter further tonight.

Clause 10 agreed to.

Clause 11 [Sentence calculation where remand spent in hospital]:

On Question, Whether Clause 11 shall stand part of the Bill?

The Earl of Mar and Kellie

I need to apologise to the Committee for tabling this Motion. I was somewhat concerned about the implications of the early release scheme on someone who had achieved a backdating sentence to include their time spent on remand in a psychiatric hospital. During the course of the evening it has come to my notice that someone who is in a psychiatric hospital during the course of a sentence will be credited with the maximum early release. If I can be assured that I have understood that the maximum early release points will be granted automatically to someone who spends part of their sentence in hospital, then I should be able to withdraw my opposition.

Lord Mackay of Drumadoon

I am happy to confirm that the matter is dealt with in Clause 38(2), and that the noble Earl's understanding is correct.

Clause 11 agreed to.

Clause 12 [Increase in sentences available to sheriff and district courts]:

The Deputy Chairman of Committees (Lord McColl of Dulwich)

If Amendment No. 102A is agreed to, I cannot call Amendments Nos. 103 to 105A.

Lord Macaulay of Bragar moved Amendment No. 102A: Page 19, line 31, leave out subsection (1).

The noble Lord said: The amendment deals with increasing the powers of sentencing in the sheriff court in Scotland. It is part of the insidious erosion of the quality of Scottish justice that the sheriff court should be given the powers proposed in Clause 12. At one time the sheriff court could not impose a sentence of more than two years, but the sheriff had the power to remit the case to the High Court if he or she thought that the two years was not sufficient to deal with the case as he or she had heard the evidence. The same has applied since the limit was raised to three years.

To raise the powers of the sheriff court to five years is what I would call a quantum leap in sentencing in the judicial system of Scotland, and it is unjustified. I am trying to recall what the Lord Advocate said on Tuesday. It appears to me—I may have it wrong—that what we are now getting, not just in Scotland but in England, is Treasury-led justice—trying to get justice on the cheap. It goes without saying that cheap justice is bad justice.

Five years is a long time to send anyone away to prison for whatever crime he or she may have committed. We must be extremely careful into whose hands we, as a responsible body—namely, the Parliament of the UK—pass that responsibility. There is no protection for the accused within this proposal.

I do not know how many temporary sheriffs there are, but I shall ask the Lord Advocate—I do not expect him to do it tonight—to publish for the benefit of all of us concerned with the administration of justice in Scotland—I declare an interest as a paid-up member of the Faculty of Advocates—a list of everyone who holds a commission as a temporary sheriff in the sheriff courts in Scotland showing, first, the names, obviously, their ages, their qualifications, and whether they are still in active practice, or whether they are just using it as a sideline, so to speak, to make a pound or two during the week. I am not criticising them for doing that. I suppose anyone would turn out for £300 a day if they were given the invitation. I do not make the remark flippantly.

What protection will be given to the accused and to the legal system of Scotland if people appear randomly from nowhere in various jurisdictions and are left with the power to sentence someone to five years' imprisonment? There is no consistency in sentencing. You can have as many conferences, training schools and judges as you like telling sheriffs or temporary sheriffs about the way in which they should approach their job, but you will not get consistency.

The situation is not unknown. I remember a colleague of mine at the Bar who was sitting in Dumfries when he received a telephone call from what is now the Scottish Courts Administration. He was asked whether he could be in Aberdeen the next morning. In fact, he refused to go and for a short time had a red star against his name indicating that he was not very co-operative. Perhaps it took him a little while to get back in with the establishment before he was given a full-time post.

I am most concerned about the proposal. The amendment proposes the deletion of subsection (1). As the Deputy Chairman of Committees indicated, if it is agreed to, it will negative all the other clauses. I am sometimes astonished when I pick up the local newspaper in Glasgow, Edinburgh, Dundee or Aberdeen and see the names of some of the people who are sitting as sheriffs. I wonder what qualifications they have and why they in particular have been given the enormous task of guiding a jury through perhaps a complex case and deciding on the sentence.

If the Government's ultimate aim in fact and in honesty is to destroy the High Court of Justiciary in Scotland as a court of first instance and pass all the crime to the sheriff court on the basis that it will become a Crown Court of Scotland, let them be honest about it. If they want to turn the High Court of Justiciary into an appellate court only, let us get on with it. There is no point in messing about in this piecemeal fashion, going from two years to three years to five years. Will we have another Bill next year to make it seven years and another Bill the following year to make it 10 years? Fortunately, the noble and learned Lord the Lord Advocate will be in no position to make that decision because he will not be sitting on that side of the Chamber after 1st May. Be that as it may, the thought of a sheriff being able to impose a sentence of five years in the sheriff court is appalling and fills me with a certain degree of horror.

We have heard a great deal about the English system; England has been referred to many times during the debate. We have another problem in Scotland, which is the availability of counsel in the sheriff court. If the sheriff court is to be given the power to impose five years' imprisonment, will the Government give an undertaking that counsel will be available to represent the accused, irrespective of the existence of the hybrid advocate solicitor as introduced in the 1993 Act?

Will the Government give an assurance that if the clause is agreed to there will be availability of choice to people who are accused and brought to trial in the sheriff court in solemn procedure on indictment and they will not be forced either to take a solicitor advocate who will normally practice in the sheriff court or to take what is being broadly referred to as the public defender within the context of this Act? Not only must we protect the victim but a decent system of justice must also protect the accused from wrongful conviction. I do not need to go into recent events in England to show how things can go badly wrong, depending on the representation made on behalf of the accused.

This amendment is not tabled in any light-hearted manner. It relates to one of the most serious clauses in the Bill. For that reason, it is a rather draconian amendment to place before the Committee, but it is there to focus on the situation as it is in Scotland. We wish—and I think that most people in Scotland involved in the administration of justice wish—the High Court to remain a court which is respected and to which people go only for the most serious crimes. They do not want a second-class system of justice in the sheriff court.

In making that remark, I do not wish in any way to demean the hard work that sheriffs and temporary sheriffs do. But in view of the sentence to be imposed, we need to establish a Rolls-Royce system of justice in the criminal courts. The Government's proposal to increase the powers of the sheriff court so that it can impose sentences of five years' imprisonment will certainly bring the Rolls-Royce to a halt. I beg to move.

9.30 p.m.

Lord McCluskey

I rise because this amendment and a number of amendments that I propose have been grouped together. I find it a matter greatly to be regretted and deeply disturbing that we come to what is an extremely important clause in the Bill at a time when there are only nine persons present in the Committee. I hope that it will be recorded that there are nine persons present, including the Minister and the Whip, one other Back-Bencher on the Government Benches, and the rest are Front Benchers, apart from myself and one other Cross-Bencher. That is deeply disturbing because this is a matter of constitutional importance which we are discussing at a late hour of the night on a very important Bill.

The matter needs to be looked at fairly deeply. As the noble Lord, Lord Macaulay, indicated, until 1987 the period of sentence which a sheriff could impose was a maximum of two years. That was amended in 1987 under Section 58 of the Criminal Justice (Scotland) Act 1987.

Of course, the sheriff had, as he still would have under the amended 1995 Act, the power to remit a case to the High Court. But the need to remit will be dramatically diminished because he will be able to impose a sentence of five years.

Perhaps I may remind the Committee what two years meant; what was the effect of a sentence of two years which a sheriff imposed prior to the coming into force of Section 58 of the 1987 Act. In those days a sheriff could impose a sentence of two years, and effectively the prisoner received one-third off for remission and accordingly the effective period was 16 months. That was the effective sentence that the sheriff could impose.

When the 1987 Act was a Bill and was discussed in another place in Standing Committee, the then Solicitor-General for Scotland, now the noble and learned Lord, Lord Fraser of Carmyllie, justified it on the basis, first, of the Grant Report which in 1967 recommended that sentencing powers on indictment cases should be increased. The Committee should note that the Grant Report was a report of a committee presided over by Lord Grant, who was the Lord Justice Clerk for Scotland. Therefore, once again that was an instance of the judges being used quite properly by the Government in relation to important matters of sentencing and criminal procedure. That is in total contrast with the nonsense written by the current Solicitor-General for Scotland suggesting that judges should "keep out of politics".

Apart, therefore, from the Grant Committee in 1967, the next body to consider the matter was the Thomson Committee sitting under Lord Thomson, a judge of the Court of Session and a Lord Commissioner of justiciary. That committee produced three reports and there were others sitting on that committee who were or became judges including, if I recall correctly, Lord Dunpark. Therefore, the Thomson Committee reached the same conclusion that the sentencing powers of the sheriff should be increased. The third body to consider the matter was the Maxwell Committee sitting under Lord Maxwell, who was yet another judge of the court who was brought in by the Government for the purposes of guiding the study.

So we have the Grant Committee, the Thomson Committee and the Maxwell Committee respectively for the 1960s, the 1970s and the 1980s, heavy use of judges on criminal procedure and sentencing, a deep study preceding the Bill—every one of these bodies hearing evidence from outside—and an idea which matured for some 20 years before Parliament agreed in 1987 to raise the sentencing power of the sheriff from two to three years. I contrast that with the present situation where absolutely no study whatever preceded the proposal. If the noble and learned Lord the Lord Advocate can tell me that I am wrong in that respect, I hope that he will do so in the clearest terms. Perhaps he can tell me who conducted the study, who was invited to give evidence, who gave evidence to it, and who approved of it. I know of nothing of that kind except in relation to the White Paper. So far as I can tell, the responses to the White Paper had very little effect upon the contents of the Bill. Therefore, so far as I can see, there was no effective consultation in relation to the matter.

There was no study preceding this proposal. It has come out of the blue; it has not taken 20 years, 20 months or even 20 weeks for us to move suddenly from the period that was recommended after deep consideration by the Government, according to the then Solicitor-General in the Select Committee, a copy of whose remarks I have with me. The then Opposition, led by Donald Dewar, indicated that that was accepted with some reluctance on the basis of the evidence from the legal committees to which reference has been made. He concluded by saying that, although we are right to express some of our doubts, I think that we should now let the matter go". I believe that the late Lord Morton of Shuna adopted a similar line when the matter was discussed in this Chamber.

As a result of the amendment made in 1987, the two-year period was raised to three years. As Members of the Committee will instantly recognise, that was a 50 per cent. increase. So the effective length of the sentence went from 16 months to 24 months. I hope that noble Lords will bear those figures in mind. Then, Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 increased the remission in respect of persons sentenced to prison for less than four years to one half. Accordingly, the effective sentence that a sheriff could impose was one half of 36 months, so the period was down to 18 months. That was the effective length of the sentence under the 1993 Act.

The present Bill would, first, increase the sheriff's period of sentence to five years; that is 60 months. I put the figure into months for easy comparison with the other figures. Secondly, in a part of the Bill that has not yet been dealt with, it would abolish the remission created by the 1993 Act and replace the one-half remission by a remission of a maximum of one sixth. Therefore, the effective imprisonment that the sheriff may impose goes up in one leap, so to speak, with two strands to it—if I may mix my metaphors in that way—to 50 months.

Perhaps I may remind Members of the Committee of the figures: pre-1987, 16 months; 1987 to 1993, 24 months; 1993 to 1997, 18 months; and the figure for 1997 is 50 months plus. So you almost treble the sentencing power of the sheriff in one go. As I said, that was preceded by no study that I can determine, no consultation that meant anything at all, and no deep reflection. It is just the sudden decision of one or two Ministers behind the scenes to make a dramatic change in the criminal justice system of Scotland. I cannot exaggerate the importance of it and I do not believe that the noble Lord, Lord Macaulay exaggerated the position. What on earth is the hurry?

My amendment might at first sight seem a retrograde step. We reduce the three years to two, but we must think of the effective sentence. As I have said, at the moment three years means 18 months. By reducing it to two—and accepting the early release provisions of the Bill—we arrive at two years less one-sixth; in other words, we reduce it from 24 months to 20 months. The effect of my amendment, reducing the period of three years to two years, is to give the effective power of the sheriff an increase from 18 to 20 months. If one wants to increase the power of the sheriff, one does so in this particular way.

These are important matters. On a separate tack, I have deep reservations about giving sheriffs the power to impose a sentence of this character. As I say, it is almost three times as much as they can currently give. At the present time a High Court judge could impose a sentence of, let us say, six years. Under Section 1 of the 1993 Act the person automatically receives one-third remission and so he gives effectively a 48 month sentence if he imposes a six year sentence. A sheriff will have a greater power than the High Court judge now enjoys if he imposes six years, or six years and three months. The sheriff will effectively be able to do what the High Court judge imposing a six and a quarter year sentence can now do. That is absurd.

I shall not mince my words. Far too many of the sheriffs are temps. On far too many occasions one sheriff hears the trial or takes the plea, a different sheriff hears the adjournment of the consideration of the sentence, and yet a third sheriff imposes the sentence, or bats it back to the first or the second. Therefore people accept, or do not accept, responsibility. Many of the temporary sheriffs are competent, but not all of them. There are some people sitting as temporary sheriffs today who are not fit to sit on the shrieval bench. There are sheriffs about whom we in the High Court have written to the Lord Advocate of the day pointing out that they are not fit to sit. These people are to be given a power now enjoyed by the High Court judge.

But quite apart from the quality of some of the sheriffs, which is poor, the quality of the whole sheriff court is not really worthy of a court which can send people to prison for this period of time. I shall not go into that until I have heard what has been said. When the Government justified—on the basis of the Grant Committee, the Thomson Committee and the Maxwell Committee reports—the move from two years to three years, the then Solicitor-General put before the other place the number of High Court cases and justified it on the basis that there was a substantial increase in the High Court cases and accordingly sheriffs had to be given a greater power. I hope we shall hear the figures equivalent to those figures tonight, and that they will be compared with the 1987 figures. Unless we do, and unless the figures are convincing, one will he forced to agree with the conclusion—which I shall be reluctant to agree with—advanced by the noble Lord, Lord Macaulay, that this is a Treasury-led experiment with justice. I regard that as extremely dangerous.

I also draw attention to the other feature which I mentioned in my speech at Second Reading. I cannot over emphasise this. Because the Lord Advocate enjoys the power to determine which court a person is indicted in, this increase in the sheriff's power from an effective sentence a 18 months to an effective sentence of 50 months is a massive increase in the power of the Lord Advocate. It gives him the right to decide which court a person will be indicted in and what kind of court. As the noble Lord, Lord Macaulay, has pointed out, there is also the danger that at present legal aid is not allowed for the employment of counsel in the sheriff court. If that is carried through into this measure, people will not be represented by counsel and yet could be sent to prison for what is the equivalent today of a six and a quarter year sentence.

These are deep and serious matters. They should not be brought forward in this fashion, so late in the life of a Parliament and in the run-up to a general election. I do not know what the Government are thinking of in treating the Scottish criminal justice system in this deplorable fashion.

9.45 p.m.

Lord Mackay of Drumadoon

The amendment moved by the noble Lord, Lord McCluskey, is grouped with a large number of amendments, although they do not all deal with this issue. For the convenience of the Committee, it might be helpful if I go through them all at this stage and then deal with the points that both noble Lords have made.

Amendments Nos. 103, 104 and 107 propose to revert to the position before 1988 when the last increase in sheriff solemn sentencing powers occurred. The amendments would reduce the existing powers of the sheriffs to two years. We have had proposals to maintain their power and those of the stipendiary magistrates and sheriffs sitting in the summary court at their present level. That is covered by Amendment No. 106A.

Amendments Nos. 103A, 104A, 105A and 107A propose an increase in the maximum sentencing powers from three to four years instead of five, as in the Bill. Amendment No. 102A would not allow any increase to sheriffs and jury trials. Amendment No. 106 would not permit an increase in sheriff summary powers. Therefore there are a great number of options open to the Committee when one goes through the range of the amendments.

These amendments have not been inspired by the Treasury, as has been suggested, but because the Government believe, as was set out in the White Paper and as was explained in another place, they would assist the operation of the courts and the criminal justice system of which these courts form part. They would increase the level of flexibility and relieve pressures which exist in the system from time to time. I shall have more to say about that in a moment.

They would also provide sheriffs with a range to determine the most appropriate sentences for the cases before them without the need to remit to the High Court for sentence. I accept that that power exists, but experience in recent years indicates that it is a power used infrequently and only in the most serious cases. Undoubtedly the proposals will have implications on the marking policy of the Lord Advocate and his Crown counsel, but, as I have explained to the Committee and indeed at Second Reading, the role of Crown counsel is well established. I see no reason why any proposals in the Bill, let alone these, should cause Crown counsel to depart from the high standards which they have sought to achieve over the years.

As the noble and learned Lord, Lord McCluskey, indicated, the matter was last considered in 1994 when the consultation document, Sentencing Appeals: Improving the Delivery of Justice in Scotland, was published as part of the Government's proposals. Since that time there have been a number of developments, particularly in the High Court.

In the year 1995–96 there was a 36 per cent. increase in the number of cases called in the High Court of Justiciary on the previous year. As I am sure the noble and learned Lord, Lord McCluskey, will be aware from his experience, the court is now sitting much longer than it used to. It faces an increasing number of adjournments as cases are transferred from one circuit to another.

I should explain to those noble Lords who are not entirely familiar with the procedure for the operation of the High Court in Scotland that circuits occur in various towns and cities in Scotland to which a number of cases are allocated. The circuit normally lasts a period of two weeks before, in busy cities such Glasgow or Edinburgh, the next circuit begins and the judge allocated to the circuit returns to Edinburgh to conduct other business. The experience has been that there have been numerous occasions when cases indicted for one circuit cannot be tried because there is insufficient court time. That is a major practical problem, not only for the court but for practitioners as well. The volume of business in the High Court is increasing.

If the noble and learned Lord, Lord McCluskey, wishes to have more precise figures I am happy to provide them. I have already referred to the figures for 1995–96. For the initial period in the year 1996–97 again there were increases. As we are rapidly coming to the end of that period, it should be possible for me to write to the noble and learned Lord giving a fairly clear indication of what level of increase we are dealing with compared to the previous year.

The number of cases indicted is increasing, as is the number of days on which the court sits. So there is a major practical problem to be faced by the Crown, which has to prosecute in the court, by defence counsel and solicitor advocates, who defend there, and by High Court judges who sit there.

For that reason it appears to the Government that there is scope for re-examining the issue of transferring cases to the sheriff and jury court, which would be one of the practical consequences of the Government's proposals, and, for instance, transferring cases at the lesser end of gravity that are currently tried in the sheriff and jury court into the sheriff summary court. For those reasons we are unable to accept the amendment proposed by the noble Lord, Lord Macaulay, which would seek to negate our proposals.

At this stage it might be helpful to mention that in the sheriff summary court sheriffs already try a number of cases where the maximum period of imprisonment is 12 months. They lie in the field of contraventions of the Misuse of Drugs Act. As the Committee will appreciate, such offences are quite regularly committed in Scotland. It is not uncommon for sheriffs sitting on their own deciding issues of guilt and the question of sentence to send offenders to prison for a period of 12 months. So far as the sheriff summary court is concerned the proposal is to give that power in relation to all offences unless the maximum sentence is a lower figure specified by Parliament. In certain cases of police assault under the Police (Scotland) Act they have power to impose sentences of nine months. Therefore we believe that there is no significant problem in increasing their share of summary powers up to 12 months, and certainly no major constitutional issue arises on that matter.

Another important development since the matter was last looked at by the Government and by Parliament is the power of the Appeal Court to issue sentencing guidelines. As I have already indicated to the Committee, the Crown would welcome the use of that power.

Another topic is the issue of judicial training. I think it was the noble Lord, Lord Macaulay, who suggested that no amount of lectures would achieve consistency. I have slightly more faith in the value of judicial training. Certainly those members of the English judiciary, both permanent and part-time, to whom I have spoken place great faith in, reliance upon, and commend the efforts of, the Judicial Studies Board in England. The noble Lord, Lord Macaulay, will be aware that, upon the installation of the noble and learned Lord, Lord Rodger of Earlsferry, as Lord President, he made it clear in the remarks he addressed to the court that day that he too would welcome developments in the field of judicial training, so presumably he shares my view that there is benefit in it.

It is for that reason that the Government have put resources into the matter and are very grateful that the recently retired Lord Justice Clerk, Lord Ross, has agreed to play an important role in setting up the committee and putting judicial training in Scotland on a more formal and extensive basis than has been the position until now.

A number of points were raised by the noble Lord, Lord Macaulay. Perhaps I may deal with some of them, without seeking to comment on every one of the criticisms he made of the Government's proposals.

He mentioned the issue of temporary sheriffs and invited me to publish a list of everyone who is a temporary sheriff. I am happy to consider that matter. It cannot be anything other than a matter of public record who the temporary sheriffs are and what their ages and professional qualifications are. I think the noble Lord wanted to go beyond that and explore their motive for doing the work—whether it was limited to earning a little money on the side, or something of that kind. Whether it would be appropriate to form a view on that matter and publish it, I rather doubt; but certainly, if there is a concern that the names, ages, and professional qualifications and current positions of temporary sheriffs are not known, I see no reason why that should not be addressed.

Clearly, temporary sheriffs have to sit in different parts of Scotland, but that is because there are variations in the volume of business from time to time in different parts of the country. There are over a hundred permanent sheriffs. They are entitled to so many weeks' leave each year; on occasion they fall sick and require to be replaced by temporary sheriffs, attend courses or are seconded to do other work which takes them away from their regular shrieval duties.

The temporary sheriffs have an important role to play in the day-to-day management and staffing of the courts and, if they are interested in a permanent appointment, they are also provided with a useful opportunity to explore whether this is a post that they really wish to have and for which they feel they are qualified. Equally the system assists those involved in the appointment of permanent sheriffs to receive reports.

The commissions of the temporary sheriffs are reviewed annually at the present time. They are formally reported upon each year by the sheriffs principal. As the noble and learned Lord, Lord McCluskey, indicated, from time to time the Appeal Court has written to the Lord Advocate of the day complaining about the performance of individuals who have sat as temporary sheriffs. Without breaching any confidentiality, I am in a position to assure the Committee that when such reports are received they are acted upon: the papers in the case are called for, reports are obtained from those involved and the renewal of the commission is by no means automatic.

The allocation of work in the sheriff court is a matter for the sheriffs principal. They decide which permanent sheriffs do which cases and what use they make of temporary sheriffs within their jurisdiction. We believe that that is the correct approach, in the same way that I explained to the Committee earlier in our deliberations. So far as the High Court is concerned, how the business falls to be allocated is a matter for the Lord Justice General. Because we believe that temporary sheriffs have a role to play, we are content to leave it to the sheriffs principal to decide which work they do. In the same way, the Lord Justice General no doubt has regard to the complexities of individual cases in deciding which judges to allocate to which cases. So there is every reason to believe that sheriffs principal, who are all experienced lawyers, would do likewise.

The noble Lord, Lord Macaulay, raised the question of the availability of defence lawyers in the sheriff court. In the sheriff court, there is the opportunity to be defended by solicitors, whether or not they are qualified as solicitor advocates. There is also the opportunity to seek authority from the legal aid fund for the employment of counsel. The Government have no plans in the context of this Bill to reform the legal aid scheme. They are content to leave it to the Legal Aid Board to decide in relation to particular cases whether the employment of counsel is justified. Obviously, if there is an increase in the sentencing powers of the sheriff, it is possible that the Legal Aid Board will take the view that there is more scope for sanctioning the employment of counsel in a particular case than there may be at the present time. But that is a matter for that body.

I resist quite firmly the suggestion that this proposal is put forward, as the noble Lord, Lord Macaulay said, in some way to erode the quality of justice in Scotland and to reduce it from a Rolls-Royce system to something much less. I believe that that view will be shared by many others who currently practise in Scotland, although I recognise that it is not a view shared by everyone who has spoken tonight and certainly not everyone who responded to the consultation document, about which I shall have more to say in a moment.

I turn to the points made by the noble and learned Lord, Lord McCluskey, who accurately, as one would expect, went over the history of the Grant, Thomson and Maxwell Reports. He will recall that in 1994, when consultation took place, the issue of increasing the sentencing power of the sheriff and jury court to four years was seriously considered.

I do not suggest that there has been an examination in the same way as occurred with the reports under the chairmanship of the High Court judges in bringing forward these proposals, but they were set out quite firmly in the White Paper and were responded to by many parties. My information is that a total of 31 responses to the White Paper were received. On this particular issue, 15, including those members of the senior judiciary who responded, were against the proposal; and 14, from most of the bodies representing those interested in the work of the lower courts (including the professional associations, which are composed of solicitors and solicitor advocates) and the sheriff association, supported the matter.

The proposals had a measure of support, but equally they had a measure of opposition. It is a matter of regret that the noble and learned Lord, Lord McCluskey, considers that these proposals will cause deep resentment. I do not believe, and my understanding of the views of those who practice in the sheriff court is, that that resentment would be universally shared. Clearly there is scope for differing views. But in view of the factors that I have mentioned, in particular the increase in the number of cases being indicted in the High Court, in the lengths of trials and in the number of adjournments, there is scope for looking at the matter again. That is what has been done.

Fortified by the additional safeguards provided by the power which the High Court has to lay down sentencing guidelines—a power which to some extent is reinforced by the Lord Advocate's power to appeal against unduly lenient sentences and by the right of an accused to appeal against sentence—we believe the guidelines provide a safeguard and judicial training will fortify that safeguard. These are important measures and ones which ought to command the approval of the Committee. I hope therefore that the Committee will not support Amendment No. 102A in the name of the noble Lord, Lord Macaulay, or any other amendments focused in the group we are presently debating.

Lord McCluskey

I regard that reply to the points I made as abysmally unsatisfactory. First, will the Lord Advocate kindly note that I drew attention to the fact that the power of the sheriff is effectively to be raised by 278 per cent.? That is the figure I gave and he can ask his officials to check it. The effective power of the sheriff today is 18 months; the effective power of the sheriff when this Bill becomes an Act will be 50 months. That is an enormous increase in power. Perhaps the Lord Advocate will be good enough to acknowledge at some stage that that is correct.

Secondly, when this matter was debated at Second Reading, the noble and learned Lord, Lord Clyde, expressed support for certain measures in the Bill and his discontent over this specific matter. He drew attention to the lack of need for any such power. He also pointed out that there is considerable danger of a greater risk of inconsistent levels of sentencing in the sheriff court. He pointed to the fact that in the High Court the judges often meet in the morning; they meet for lunch; they occasionally have conferences; and they have regular meetings every Thursday morning. They can exchange information with one another and achieve a degree of consistency through that method and also through the sentencing information system. There are no such mechanisms available for sheriffs and the degree of inconsistency will rise dramatically.

The Lord Advocate said that we should have confidence in the continued competence and role of Crown counsel. I say with the utmost sorrow that I do not have the same confidence that I used to have. That is partly because the present Lord Advocate, the noble and learned Lord, decided, against the advice of many people, including myself—we made representations to him, to his predecessor and again to him—that he should continue to appoint to the office of Crown counsel people who were independent, departing from the tradition that has existed for the entire history of Scots law and putting into that office permanent, full-time servants of the Crown Office with a salary and promotion prospects. I cannot believe that the continuation of that practice, which was brought in around Christmas-time without any intimation to me—I read it in the Scots Law Times—is good for the independence of Crown counsel.

I also drew attention to the fact that the justification for this measure in 1987 was given in terms of the absolute numbers of cases. I would seek to have from the Lord Advocate, preferably before Monday—because this matter will arise again on Monday, and again on Report, either on the first day of Report or the second day of Report, or whatever day of Report is required in order to have satisfactory answers on this matter—the absolute numbers of cases. It is those numbers that count, not the alleged increases. I do not know what the increases mean. The Lord Advocate referred to circuits. I thought they were abolished in 1987, but he will no doubt correct me if I am wrong.

If there is a pressure upon the High Court because of some increase in the number of cases, the correct answer is to appoint High Court judges. Why, instead of having High Court judges imposing sentences of six-and-a-half years, should we have temporary sheriffs? One thing is clear. It is a sight cheaper to have a temporary sheriff than to have a High Court judge. That points to the truth of the suggestion made by the noble Lord, Lord Macaulay—I hope it is not true—that this is a Treasury-led initiative.

The Lord Advocate also referred to the power to issue sentencing guidelines. That power is not being used. For reasons with which I do not greatly sympathise, the Criminal Appeal Court in Scotland chooses not to issue sentencing guidelines. It chooses to make decisions on the basis of individual cases, and that in a sense sets a trend. There is a kind of incremental wisdom. There is no attempt to prescribe great principles.

On the matter of judicial training, I have the advantage of having attended the Judicial Studies Training Board in England. I found to my surprise that a great many of the people who were being trained there had virtually no experience of the criminal law and so they really did need the training. When we had our exercises to discover what possible sentences should be passed, they varied from probation or a slap across the wrist to 18 years in one case. They really needed the training. That is an entirely different situation from the one in Scotland, where almost universally the people who go onto the Bench have some experience of criminal work. I do not have the same confidence that Lord Ross, with all his experience, will somehow create a kind of even and consistent level of wisdom among temporary sheriffs. That seems to be a quite ridiculous idea. Why on earth should we give temporary sheriffs this enormous power?

The noble and learned Lord also referred to the suggestion that the sheriff principal somehow allocates work in the same way as the Lord Justice General did. I do not believe that the Lord Justice General does allocate work in the criminal courts on that basis. I hope that the noble and learned Lord will write to ask him whether he does. I should like to know whether the sheriff principals, some of whom cover enormous areas with vast numbers of sheriffs, have any possible time and energy for allocating particular sheriffs to particular work. I do not think that is a possibility and I am surprised that the noble and learned Lord should suggest that to us.

He also said that it is possible that the Scottish Legal Aid Board will sanction counsel. I hope he will make inquiries of the Scottish Legal Aid Board to see whether in the light of these new provisions it intends to vary its practice from that which obtains now.

In relation to the matter of consultation, the matter that was put out for consultation in 1994 was a proposal that possibly the sheriffs powers might be raised to sentencing for four years at a time when the remission was going to be a half of that. Under the provisions in the 1993 Act the sheriffs power was to put a person in custody for 24 months. That was effectively what it was. There was no consultation about a proposal to give the sheriff an effective power to send someone to prison for four years and two months; in other words, a five-year sentence with one-sixth remission.

I would like the noble and learned Lord the Lord Advocate to write to me as soon as may be to explain who were the 15 persons or bodies who were against this proposal and who were the 14 for it. That is 29 out of 31 and I would like to know who the other two are as well. They were not being consulted on the measure which this Bill contains. It is important that this Committee should hear and that the Chamber should know what are the absolute numbers. The Lord Advocate mentioned the increase in the number of cases. No doubt we shall hear the numbers fairly soon—that is to say, the actual number of cases indicted in the High Court. We shall also hear something about the length of cases. The noble and learned Lord the Lord Advocate spoke about the number of adjournments and that suggestion baffles me. The idea is that because cases are adjourned therefore he should send more cases off to the sheriff court. I do not understand the logic of that argument at all. I express myself as being deeply dissatisfied. I hope that at some stage we shall have an opportunity to vote on the matter.

10.15 p.m.

Lord Mackay of Drumadoon

Before the noble and learned Lord sits down perhaps I may respond briefly to some of the points he makes. As regards the figures, I shall do my best to ensure that a letter is dispatched to him tomorrow addressing the various issues which he raised, including the number of cases coming into the Crown Office each year; the number of cases indicted and the number of adjournments which take place and so on. I hope that his experience in sitting regularly in the criminal courts will convince him that there is at least some support for my contention of an increase in the volume of business of the High Court of justiciary in Scotland.

The noble and learned Lord made certain comments about Crown counsel which I should deal with. It is a matter of regret that a High Court judge sitting in this House, let alone anywhere, should feel it appropriate to express reservations about the confidence that the court has in Crown counsel. As Members of the Committee will know, they are the advocate deputes who prosecute daily in the High Court in Scotland. I personally regret that the noble and learned Lord has chosen to criticise me for deciding to appoint to that team a lawyer who had been a procurator fiscal for many years. He has now resigned from the service and taken up an appointment as Crown counsel. I did so after I received a report from a group chaired by the Solicitor-General, including others unconnected with the Crown Office, which recommended that such appointments should be made if individual candidates merited appointment. In accepting the recommendations of that group last December, I have been considering when to make an appointment.

It is an unfortunate fact of life that since I was an advocate depute in the early 1980s—certainly since the noble and learned Lord was an advocate depute many years previously—the willingness of members of the Faculty of Advocates to serve as Crown counsel has not been as enthusiastic as it used to be. It would be wrong to go into that matter in any detail, but it is a consideration that has to be taken into account. Obviously, even if only one person approached declines to serve, that limits the field from which the Lord Advocate can select his team of Crown counsel.

All I can say is that the views that the noble and learned Lord expressed about my decision are not universally shared by those involved in the legal profession in Scotland. It is probably inappropriate that I should say any more. I am glad that he agrees with me that there would be value in the power of the sentencing guidelines being used. He is in a better position than I am to encourage his colleagues to do so and I look forward to his support in that regard.

It would be constitutionally wrong of the Government to interfere in the work of the Scottish Legal Aid Board and in how it exercises its powers, but I shall certainly draw to its attention the views which have been expressed tonight. Whether the lawyers who serve on that board include members of the faculty and solicitors who share the views which have been expressed tonight is a matter for them to decide, but I undertake to ensure that the observations that have been made here are drawn to the board's attention.

The consultation exercise, as set out in the White Paper, related not only to these proposals but to those on early release. It was therefore open to any consultee to examine the issue in the way in which the noble and learned Lord, Lord McCluskey, has done. I shall do what I can to provide the noble and learned Lord before Monday with a breakdown of those who supported the proposals and those who did not. As I said at Second Reading, the consultation exercise took place on the basis that consultation responses would be made public unless the individual consultees requested otherwise. It is possible that some who supported the proposals and some who were against them requested that their views should be private. Subject to that qualification, however, there should be no difficulty in meeting the request that has been made.

I appreciate that the noble and learned Lord feels strongly about this matter, as does the noble Lord, Lord Macaulay. All that I can do is to assure other Members of the Committee that the matter has been considered and that the proposals command a measure of support—albeit that they command a measure of opposition also. In the Government's view, however, they are appropriate to deal with the practical problems which the Scottish courts face. I personally have greater faith in the sheriffs, in those who sit as temporary sheriffs and those who practise in the sheriff courts, than has been expressed by the noble Lord, Lord Macaulay, and the noble and learned Lord, Lord McCluskey, tonight. On that basis, I continue to invite the Committee not to support the amendment.

Lord Macaulay of Bragar

In replying to the noble and learned Lord the Lord Advocate, I should like to make it clear that I was in no way demeaning the value of judicial training. It has its own place in the system. I was certainly not suggesting that temporary sheriffs are Arthur Daleys with wigs on who go around Scotland making a little bit on the side. I never used that expression. I said that if someone offered me £300 a day I would no doubt take it, if I was suited for the job. As I understand it, temporary sheriffs are paid somewhere around that rate on a daily basis. I do not want that to be taken in any way as a criticism of them for doing the job.

As the noble and learned Lord, Lord McCluskey, pointed out, we are now dealing with an issue which is fundamental to the Scottish legal system. I have been qualified in the law for 40 years. I do not like personalising argument or debate, but I genuinely find this one of the saddest occasions at which I have been present in relation to the Scottish legal system. What the Lord Advocate is telling the Committee is that Scotland's population of slightly over 5 million people cannot run its own legal system efficiently.

So, what do we do? The High Court becomes overloaded, yet more judges are not appointed. I remember that in either the 1990 or 1993 debates I suggested that we should have a pool of judges in order to give us flexibility and to enable judges to have proper holidays and proper writing time. There may be a bit of slack in the system, but the system could be tightened when required. The Government rejected that out of hand. I was told—rightly or wrongly—that when the suggestion was made that we should have more judges (even if they had a day or even a week off occasionally) the excuse given by the Treasury was that if you appoint a judge you have to appoint a macer and find him a court and all the rest. The Treasury said that that could not be afforded, so the system has got constricted.

Is the noble and learned Lord now telling the people of Scotland, the people who matter—the noble and learned Lord does not matter; I do not matter; it is the system of justice in Scotland that matters—that the whole judicial system has ground to a halt and that there is no answer to it except to shift the problem around the corner from the High Court into the sheriff court to let the sheriffs deal with it and give them increased powers? Is he saying that everyone should say "hurrah", go home clapping their hands and say that we have solved the problem? The situation is absolutely preposterous.

Although I speak from the Opposition Front Bench, I am in no position to give any undertakings about appointing more judges. But is it not time that someone faced up to the situation, looked it square in the face, and set up a commission urgently to decide how we solve the problem? We do not solve it with a piecemeal approach, and, as I say, shove it around the corner.

I must say that I am surprised to hear the noble and learned Lord the Lord Advocate complaining about adjournments in the High Court. From practice in the sheriff court, I can assure him that it is the easiest place in the world to obtain an adjournment. It is difficult to get an adjournment in a High Court trial because the judges are very conscious of the court's duty not just to the accused and the Crown but to the public and jurors. There is not much of a problem in obtaining an adjournment in a sheriff court.

If you walk into a busy sheriff court, from time to time you will see a fiscal coming in at half-past nine in the morning with a pile of papers that he has not even read. He has not had time to read them. That is the way the system works. To suggest that there is room in the sheriff court to push in important cases such as, presumably, attempted murder, attempted rape and so on, which can attract a sentence of five years' imprisonment, and that that will solve the problem, is just not facing up to the problem.

There is the question of counsel available in the sheriff court. It is all very well to say that it should be left to the Legal Aid Board and it will decide. Anyone facing a sentence of five years' imprisonment is prima facie entitled to the best representation available within the legal system and even within the legal aid system. Who on the board makes the decisions? The Legal Aid Board comprises a great many people. I do not know how many of them are legally qualified. Of course, the committees are legally qualified. If you speak to practising solicitors they tell you about the difficulties they sometimes have with the Legal Aid Board. At times it can be helpful; at others it can be obstructive. There is no consistency.

Why not appoint more judges? I have no doubt that in accordance with recent tradition the noble and learned Lord the Lord Advocate might be sitting in a high position within a few months. I do not know. He may be sitting as a High Court judge and looking at matters in a different light, as his predecessor is now doing as the head of the judiciary. Why do we shrink from leaving the system the way it is and improving the High Court/sheriff court structure and instead dodge the column altogether?

If the system is grinding to a halt, the people of Scotland are entitled to know that. Although no one in the Scottish press pays much attention to what is said in this place unless it is sensational, I hope that the message will get through from the noble and learned Lord the Lord Advocate that the High Court can no longer cope with its business, and so the only answer is to increase the powers of temporary sheriffs and sheriffs in the sheriff court and shove the problem out of the way so as to ease the burden.

It is an absolutely disgraceful situation. The accused in particular, as well as the victim's family, is entitled not just to the best service available in his or her defence but to the best judges available in the land in cases where the sentence is likely to be five years' imprisonment.

Not often am I lost for words, but I repeat that this is a sad, sad night for the legal system of Scotland if what the noble and learned Lord said to the noble and learned Lord, Lord McCluskey, and to me about the state of the Scottish criminal legal system is true. The matter will be investigated again and again, and we will come back at the Report stage once we have more information. We do not have the backing of government researchers, but once the figures are available one can rest assured that they will be examined. The matter will then be brought back, perhaps not only in this House but in another place, and brought back with a vengeance to ensure that justice and not expediency prevails in Scotland. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Lord McCluskey moved Amendment No. 103 Page 19, line 34, leave out (""five") and insert (""two").

The noble and learned Lord said: I have largely spoken to Amendment No. 103, but there are one or two comments that I would have added had I been on my feet in time before the noble Lord, Lord Macaulay, withdrew his amendment.

First, I believe that I have an unrivalled breadth, depth and length of experience in the criminal courts in Scotland. I have been a law officer for more than five years and an advocate depute for more than seven years. I have practised in every court; the district court, the borough court, the sheriff court, the sheriff solemn court and the High Court over a period of 41 years, the last 12 as a judge. I feel passionately about this matter because I see the system being corrupted by what the Government are doing.

In my time in the Crown Office, which started in 1964 and ended in 1979, there was pressure from the permanent staff to become full-time prosecutors and to get rid of the advocate depute system which had obtained for centuries. That pressure was successfully resisted during my time. The first crack in the dam appeared when the noble and learned Lord's predecessor was Lord Advocate, and I discovered that he was contemplating appointing members of the fiscal staff in the role of Crown counsel for the first time.

I wrote to him and he asked me to attend a meeting with him. He promised to set up a committee and so he did. It was chaired by the then Solicitor-General, who now sits as Lord Advocate; the noble and learned Lord, Lord Mackay of Drumadoon. He in turn, having become Lord Advocate, appointed as the chairman of the committee in his place the new Solicitor-General, Mr. Paul Cullen.

The report which the noble and learned Lord the Lord Advocate mentioned to this Committee was a majority report. The persons on the committee were the Solicitor-General for Scotland, who could hardly be described as independent in a matter of this kind; the Deputy Crown Agent; a solicitor from the Scottish Office; two or three people who had no connection, so far as I could understand, with the law; and a distinguished Queen's Counsel with substantial experience of the Crown Office. It was a majority report and he was the one who dissented. I was not allowed to see that report, but I was given a summary of it. That is the position. On the basis of that majority report from people who were substantially and plainly chosen for their support for the idea, the Lord Advocate purports to act on the basis of a committee report.

I do not know how difficult it is to find advocate deputes. In my day, there were 100 people from whom one had to choose the advocate deputes; now there are about 360 people. Therefore, I do not see how the difficulty can be as great as the Lord Advocate seems to suggest.

There is one other figure that the Lord Advocate will wish to put before the Committee, or alternatively the House at a later stage. He will find the answer extremely easily from the sentencing information system. How many sentences above six years have been imposed in the High Court in each of the last five years, or been imposed on remit from the sheriff court to a judge of the High Court in accordance with the remissions?

If this measure goes through, the likelihood is that the work of the High Court will be reduced in that fashion. That will please my noble and learned friend Lord Clyde who thought that the High Court ought to be spending more time dealing with civil business and less time dealing with the criminal business of sending people to prison for a substantial period of years.

These are deeply important matters and in respect of the amendment standing in my name, I beg to move.

Lord Mackay of Drumadoon

I think it would assist the Committee if I limited my response to deal with two matters which the noble and learned Lord mentioned. One was the suggestion that my predecessor had picked for that committee those who supported the idea which it was to examine. I regret that such an allegation was made. It is an allegation that those who know well my noble and learned friend Lord Rodger of Earlsferry will know has no foundation whatever in fact. I hope that on further reflection the noble and learned Lord will not persist in it.

As regards my searching the sentencing information system for the information which the noble and learned Lord seeks, I regret that on this occasion I am unable to assist because, as he may have forgotten, that system is private to the judges. Neither the Crown nor defence lawyers have any access to it whatever. But as I see no reason why the public should not be aware of the information which he seeks, tomorrow I shall invite the Lord Justice General to search the system on my behalf and I hope that the information will be available for Monday or, if not, for the Report stage of the Bill.

Lord McCluskey

I do not propose to press the matter at this time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 103A: Page 19, line 34, leave out (""five") and insert (""four").

The noble Lord said: We have been over the course probably twice too often in the course of the evening. I do not press this amendment today but I reserve the position for Report stage.

[Amendment No. 103A not moved.]

[Amendments Nos. 104 and 104A not moved.]

Lord McCluskey moved Amendment No. 105: Page 19, line 37, leave out from beginning to ("and") in line 6 on page 20.

The noble and learned Lord said: This amendment has been grouped with others but it is a separate matter because it relates to the summary sentencing power of the sheriffs. Again, I do not wish to weary the Committee at this late hour, although there are not many to be wearied. But at present the sheriff has power to send a person to prison for three months which effectively for reasons that I have already explained is a period of six weeks, and in the case of a second or further offence of dishonesty or personal violence he can impose six months, and there are one or two higher powers to which the noble and learned Lord the Lord Advocate referred at an earlier stage.

Under the Bill, the effective power of the sheriff will be increased in the maximum case from, presently, 12 weeks to a period of 40 weeks. That is a massive increase in the power of the sheriff. I make it a 333 per cent. increase in the effective power of the sheriff. If the Committee were to accept my Amendment No. 106, the result would be that the effective power of the sheriff would increase from six weeks to 10 weeks in the one case and from 12 weeks to 20 weeks in the other case—a 166 per cent. increase. That is surely enough of a jump to take at one time. I cannot understand the basis on which the power of the sheriff is to be increased in that fashion.

There is another feature of this to which I wish to draw attention. In England at present there is considerable disquiet, as I understand it, at the possibility that the right to jury trial will be removed from a number of people in certain circumstances. I know nothing about the merits of that. But if we allow the sheriff to have the power to send a person to prison for an effective period of 40 weeks instead of 12 weeks or for 20 weeks instead of six weeks, in effect we are saying, "You can now go to prison for such a lengthy period without the benefit of jury trial in Scotland". All of a sudden a large number of people are to be deprived of the right to jury trial, which they would enjoy at the moment before they faced a sentence of that length.

Again, I must raise the question: who is it who decides whether a case is to go summarily or on indictment? The answer is the Lord Advocate and his staff. Is it done in public? No. Is it reviewable? No. Are they accountable for it? No. I regret to say that I stay with the constitutional principle that you should not give Ministers powers of this kind if they have not established a need for them. I am not convinced that the power that we are conferring upon the Lord Advocate in relation to the allocation of cases in this fashion has been demonstrated to be necessary. I beg to move.

Lord Mackay of Drumadoon

I do not offer any criticism in this respect, but I believe that the noble and learned Lord has just spoken to Amendment No. 106 rather than Amendment No. 105, which is the one that the Deputy Chairman of Committees called. However, to avoid further delay, perhaps I may respond briefly to it.

Lord McCluskey

I am sorry. The Marshalled List is incorrect. There has been an unfortunate mistake which I did not notice. Amendment No. 105 ought to be printed under my name and not that of the noble Lord, Lord Macaulay of Bragar. Therefore, when my name was called, I spoke to the next amendment that I had tabled.

Lord Mackay of Drumadoon

I am happy to respond to the substance of the argument, whatever the precise amendment may be, in the hope that that may save time.

I do not dispute the arithmetic of the noble and learned Lord as to the increase in the period spent in custody as a result of later proposals in the Bill. However, as I indicated earlier, I believe that if Parliament has previously entrusted sheriffs with the power to send people to prison for 12 months in the knowledge that the provisions for early release tend to vary from time to time—possibly more frequently than some noble Lords would wish—there is nothing constitutionally improper in the proposal to give that power in relation to all sentences that come before that court.

The issue of a jury trial is a separate matter. As the noble and learned Lord knows, there has never been the right to jury trial which there is in England. I understand that there is some misunderstanding in England as to how far back that right has existed, certainly as regards the type of cases which would be tried in the sheriff court in Scotland and which under current proposals would attract up to a period of five years' imprisonment. However, that is a debate for another country and another day.

I regret to say that I have a greater faith in the competence and experience of sheriffs to do justice in the sheriff summary court than could be inferred, whether or not this is the intention of the noble and learned Lord, from some of the comments that he and the noble Lord, Lord Macaulay, have made in the course of the past hour or so. It would be wrong, in my submission, to give any credence whatever to the suggestion that the people of Scotland should understand that they receive inferior justice if they are tried by a sheriff than if they are tried by a sheriff and jury. It would be unfortunate if that conclusion were to be drawn from the comments that have been made. However, having regard to the hour and the discussion that we have had on previous amendments, it may not be necessary for me to say any more on the matter, especially as it is not of relevance to Amendment No. 105.

Lord McCluskey

I accept that I addressed Amendment No. 106. That was the next one standing in my name on the Marshalled List, which is plainly wrong. I apologise for that fact. However, we would not, of course, be dealing with Amendments Nos. 105 or 105A, for reasons that are plain.

In relation to the substance of the matter, the right to jury trial is effectively going to be lost by people who face imprisonment for between 13 and 40 weeks. At the present time if they face such imprisonment they have the right to a jury trial; in future it will be lost. This is an important matter and I regret to say I am not satisfied by the answers I have been given. However, at this hour of the night, I do not propose to press this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 105A to 108A not moved.]

10.45 p.m.

The Deputy Chairman of Committees

I understand that Amendment No. 109 should be in the name of the noble and learned Lord, Lord McCluskey.

Lord McCluskey moved Amendment No. 109: Page 20, line 21, at end insert— ("( ) Notwithstanding anything contained in section 3 of the 1995 Act, no person appointed under section 11 (temporary sheriffs principal and sheriffs) of the Sheriff Courts Act 1971 shall impose a sentence of imprisonment or detention exceeding two years.".").

The noble and learned Lord said: There is a mistake in the Marshalled List. This amendment should be in my name. This is specifically directed at a point which is already clear from the earlier discussion. At the moment the temporary sheriff can impose the same sentence as the permanent sheriff. Under the provisions of the Bill—if it comes into force, of course—all the sheriffs will have the increased power to which I have made reference, and the arithmetic of which is not in dispute.

I think it would be highly unsatisfactory that people who are temporary sheriffs—some of whom turn out to be plainly unsuitable and some of whom do not find their commissions removed—are given a power which now is enjoyed only by a High Court judge. For the reasons that I have already explained, I am opposed to this.

I see a vast number of appeals from sheriffs because I see about a fifth or a quarter of all the appeals in Scotland as a sifting judge, a sifting appeal judge, or as a judge sitting in the Criminal Appeal Court. I am not satisfied. I do not have the same confidence in the sheriffs and temporary sheriffs that the noble and learned Lord the Lord Advocate expresses. One sometimes finds that people who occupy temporary judicial office seek to impress someone by being rather macho in their sentencing. One gets this impression from time to time. It is an impression which I have discussed with my colleagues in the Criminal Appeal Court, some of whom rank even higher than I in the judiciary, and it is not a matter upon which there is much disagreement. In those circumstances I hope the Government will undertake to think carefully about the suggestion that temporary sheriffs should not have the power to impose the full sentence. I beg to move.

Lord Mackay of Drumadoon

As the noble and learned Lord said, we have already touched on this matter, but in view of the comments he has just made I am quite happy to reflect on the matter further, discuss it with my colleagues in government and engage in such discussion with others as might assist to form a view as to whether this development would be acceptable. On that basis I hope that this amendment will not be pressed.

Lord McCluskey

On that basis I am happy not to press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 12 shall stand part of the Bill?

The Earl of Mar and Kellie

I oppose the Question, That Clause 12 shall stand part of the Bill on these grounds. I believe that the extension of powers of sentencing by sheriffs should not exceed the point where a prisoner is regarded as a long term prisoner and subject to different liberation arrangements and different conditions of supervision and conditional release. If the clause had laid down a maximum of four years, I might have found it a little easier to accept. Certainly SACRO suggested this.

This have been a worrying debate. I am sure that we shall return to it on Report. I was going to say that we shall return to it with a vengeance, but perhaps I should not do so. The debate has been particularly significant.

Lord Sewel

At first reading, Clause 12 may not appear to many of us to be a high profile clause. However, as the debate has progressed the more worried I have become. There is at least the likelihood—I acknowledge that it may be the unintended consequence—that the clause will significantly and adversely affect the nature of the criminal justice system, and in particular the court system, in Scotland. I do not level the charge that the noble and learned Lord the Lord Advocate seeks to bring that about. I think that it would be unintentional. But because of that it is necessary to pause and reflect.

What has struck me most forcefully during the debate is that such a qualitative change in the past has been based upon prolonged consideration and deliberation. From what we have heard this evening, that is lacking in this case, and we should proceed slowly. It is always the case historically that major changes to institutions have occurred by stealth and unintentionally rather than deliberately or by revolution. We may be on the threshold of such a change as regards Clause 12.

I am particularly disappointed that the argument put forward by the noble and learned Lord the Lord Advocate on the reasons for this change has been based on somewhat shortsighted pragmatism—that is, the pressures on the High Court. If there are pressures on the work of the High Court, as there may well be, the challenge is to sort out the High Court, and to make sure that it has the processes, the means and the resources, to do the job properly rather than seeking to transfer down to the sheriff court those cases which should properly rest at the High Court.

During the debate I have become increasingly worried that, quite unintentionally, we may be changing the nature of the criminal justice system and of the court system in Scotland. It is time to reflect. I do not wish to see the House divide on the matter tonight. However, I believe that it would be to the benefit of all parties and of the court system in Scotland if we were to think long and hard about what has been said, perhaps returning to the issue at a later date.

Lord Thomas of Gresford

I have listened to the debate with increasing dismay. It is a matter of deep regret to me that there should be an issue which is so bitterly divisive between respected and senior members of the legal profession and of the judiciary on all sides of the House. I fully concur with what the noble Lord, Lord Sewel, said: that when one has a situation such as this it is wise to go very slowly indeed. Alterations to the constitutional make-up of the courts in Scotland are a matter that must progress with consent on all sides. It cannot be for the benefit of a country for which I have great respect and regard and a legal system that I have long revered to have as divisive an issue as this.

The Committee will recall that I have frequently said that the confidence of the public in the criminal justice system is critical. I do not believe that confidence has been increased in Scotland by the debate that we have heard tonight. I, too, oppose this clause.

Baroness Carnegy of Lour

I endorse the noble Lord's final remark. I hope that when this subject is raised at a later stage it will be possible for distinguished members of the Bar and the judiciary in this House to discuss it without criticising sheriffs, temporary sheriffs, Crown counsel and others. I do not believe that that helps the public appreciate the legal system at all. We can discuss the issue without criticising different members of the legal profession. I have been quite ashamed this evening to have to be present in this Chamber, with the public listening and where noble Lords may come and go—it is a public forum—and to hear that going on. I hope that we shall not have it next time. I am sorry if I sound pious but I am very depressed by it indeed. The issue is another thing; but the way we do it matters.

Lord Mackay of Drumadoon

We have had a long debate on the issues that arise in relation to this clause. It may be wrong for me to say much more at this stage. Perhaps later I will discuss with the noble Lords, Lord Sewel and Lord Thomas, the possible unintended consequences of constitutional change in view of certain matters about which one has been reading in the newspaper in recent months. It was the noble Lord who said that constitutional change sometimes bring about unintended consequences.

Lord Sewel

We have been consulting for 18 years.

Lord Mackay of Drumadoon

And look where it has got the noble Lord.

Lord Sewel

With a massive majority looming.

Lord Mackay of Drumadoon

There are one or two points that I might profitably feed into the discussion. I am grateful to the noble Lords, Lord Sewel and Lord Thomas, and to the noble Earl for the measured way in which they have sought to bring this debate to a conclusion.

One is that the percentage of High Court judges in Scotland is significantly higher per head of population than in England. That is a factor upon which people may profitably reflect. The second is that the comment made by the noble Lord, Lord Sewel, about seeking to sort out the problems is one of which I am all too well aware as being a very sensible way forward. Certainly so long as I have been Lord Advocate I have sought, with the co-operation of the Dean of Faculty, the President of the Law Society, the former Lord Justice General, the noble and learned Lord, Lord Hope, and the present Lord Justice General to address some of the practical problems which the court faces. However, as the statistics to which I referred earlier made clear, there is a major increase in the number of days when the court sits, the number of indictments and so on. It is not just a temporary phenomenon; it is a major practical problem.

The suggestion is that it is important to have consensus on all sides before one goes forward. I think it is fair to say that when the sentencing powers of the sheriff sittings and the sheriff and jury court were increased from two to three years there was not overall consensus about that at that stage. Some people were of the view that it should not be moved at all. There was a substantial body of opinion that it should be moved to a higher figure. A view was taken by government, presented to Parliament and approved at that time. So while I fully accept that these are legitimately matters of public debate, it may be totally unrealistic to expect a unanimity of view. In the event that this House were ever called upon to consider legislation dealing with a Scottish assembly, I suspect that the noble Lord, Lord Sewel, would not expect unanimity of view no matter how long and how eloquently he talked.

Perhaps I may endorse what was said by my noble friend Lady Carnegy as to the comments made when debating issues of this nature. I do not offer any criticism as such but I am concerned that, reported in part, some of the comments that Members of the Committee have felt it appropriate to make could give the impression that there are serious weaknesses in the criminal justice system in Scotland in so far as it relates to the work done in the sheriff court. No doubt there are occasions when mistakes are made and when temporary sheriffs—and indeed permanent sheriffs—fail to get things right. The very nature of our justice system is that there are built into it appeal courts to sort these matters out. I hope that when we return to this matter at Report stage, as we undoubtedly shall, it will prove possible, armed with the additional information I have undertaken to provide, to have a productive debate on issues which are clearly important. In the meantime I hope that Members will be content that this clause stands part of the Bill.

Clause 12 agreed to.

Clause 13 agreed to.

House resumed.