Lords Sitting of 10 March 1997

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

Children: Illegal Employment
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
How many prosecutions there are annually for the illegal employment of children in the United Kingdom and, if it is illegal to employ schoolgirls as catwalk models, whose duty it is to prosecute the employer.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, in 1995, 16 defendants were prosecuted for the illegal employment of children. It is not illegal to employ schoolgirls as catwalk models.
Lord Jenkins of Putney: My Lords, is the Minister aware that the number of children employed in this country is much greater than in many other European countries? Is she also aware that discussions are taking place about a European Union directive on the matter? I understand that our representatives are proposing that children shall be legally permitted to work five hours on a Sunday. Will the Minister intervene with a view to stopping our representatives putting forward any such proposal?
Baroness Cumberlege: My Lords, I am not aware that our children work more than children in other European countries. The noble Lord may well be right, but we would not want to see children exploited. On the other hand, the vast majority enjoy their paper rounds
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and their Saturday morning jobs. It teaches them about rewards for hard work, value for money and the disciplines of getting up for work and being reliable. Furthermore, it gives them status in the eyes of their friends. Therefore, the issue must be kept in proportion.
There are strict regulations as to how often and how much children can work. I understand that consultation is taking place about an EC directive. However, we believe that our present law, with some very minor alterations, is a good safeguard for children at work.
Baroness Jay of Paddington: My Lords, we all agree with the Minister that it is right to keep issues such as paper rounds in proportion. However, is she concerned, as both I and my noble friend Lord Jenkins are concerned, about the difference between children doing casual work such as a paper round or a Saturday morning job in a shop and the types of employment which may well interfere with their schooling? Is she aware that there is considerable evidence of a growing demand for that kind of labour, which is more serious than the casual and often enjoyable part-time work?
Baroness Cumberlege: My Lords, yes, but local authorities, which make by-laws under the 1993 Act, can place further restrictions if they wish on the hours and conditions of work and on the nature of the employment that is permitted.
Lord Jenkins of Putney: My Lords, is the Minister aware that with one or two exceptions such as Birmingham and others, local authorities are not implementing the present laws? Will the Government take whatever action is necessary to persuade and encourage them to do so and to provide any further resources so that they can implement the present legislation? It is largely not implemented and it is estimated that some 2 million children are working every day in defiance of the present legislation.
Baroness Cumberlege: My Lords, I believe that the figure of 2 million relates to employers who do not register with the local authority. However, under the

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1993 Act, local authorities have such a duty and it is up to them to implement it and to find the necessary resources.

Workfare: Pilot Projects
2.40 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
Whether they will commission research on what happens to those disentitled to benefit under the new pilot projects for workfare, and whether they will commit themselves not to introduce any further projects for workfare until after such research has been published.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, we have already commissioned research on the effects of Project Work. This will be available by December 1997. We are extending the pilots to 28 other new areas so that a more thorough analysis can be undertaken.
Earl Russell: My Lords, I thank the Minister for that reply. Can he tell the House whether that research will include what happens to the people disentitled to benefit? He knows well, for he reminded me last Thursday, that we simply do not agree on this subject. Is he prepared to take the risk of discovering which of us is right?
Lord Henley: My Lords, I have every confidence that in due course I shall discover that I am right. Obviously, the research will look at all the effects of Project Work.
Lord McCarthy: My Lords, whatever might be the result of the research, the Government can no longer pretend that the workfare programme is dealing with the problem of putting the long-term unemployed back to work. Despite the fact that about 4 million unemployed people are going through their restart interviews and 1 million through their compulsory motivation courses, the fact is that 95 per cent. of them return to the dole.
Lord Henley: My Lords, I simply do not know where the noble Lord obtained the figure of 4 million. It is not a figure that I nor I suspect anyone else in the House recognises. However, I assure your Lordships that the initial results from the pilot scheme—and they are just that—of Project Work show that more than half the participants have left the register in pilot areas, which is highly commendable, compared to one-third in the control areas. Furthermore, 23 per cent. of all those starting on the pilot have left for jobs compared with 19 per cent. in the control areas. The difference between those obtaining jobs and those coming off the register account for those who were claiming benefit
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which they should not have been claiming. We do not believe it right that people should continue to claim benefits to which they are not entitled.

London Underground Privatisation: Publicity Costs
2.43 p.m.
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
What was the cost of the publicity campaign in favour of the privatisation of London Underground involving the distribution of 150,000 leaflets to passengers, with a personal letter from the Secretary of State for Transport, and who was responsible for commissioning it.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, no costs were incurred by the Government. As was clearly stated on both sides of the leaflet, it was published by the Conservative Party.
Lord Berkeley: My Lords, I am very grateful to the noble Viscount for that Answer. I presume that that means that the privatisation proposal, as launched by the Secretary of State on that day, was the start of his election manifesto. Will the noble Viscount confirm that any leaflets distributed in Ealing, which is the Secretary of State's constituency, will be declared as part of his election expenses?
Viscount Goschen: My Lords, with the greatest respect, that is a very silly question. I wonder whether the best attack which the noble Lord can muster in relation to London Underground privatisation is in relation to the distribution of leaflets, which were political documents paid for by a political party.
Lord Ezra: My Lords, I am addressing the Minister as a member of the Government and not as a member of the Conservative Party. Will the noble Viscount agree that regular users of the Underground, of which I happen to be one, would, in present circumstances, be much more interested in the current level of funding than what might or might not happen eventually with regard to privatisation?
Viscount Goschen: My Lords, the noble Lord, Lord Ezra, will know that very substantial quantities of grant go to London Underground at the moment. But I believe that passengers will be looking to the future to see how the situation can be improved and the investment backlog dealt with. It is clear that over many decades that has not been achieved. We now need innovative proposals to attract massive quantities of investment into the London Underground. That is exactly what privatisation will do.
Lord Elton: My Lords, as another regular user of the Underground system, I assure my noble friend that the

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prospect of attracting very large amounts of new capital in order to make that the efficient service that we want is extremely welcome.
Viscount Goschen: My Lords, indeed; I can fully accept that. People have been complaining for many years about the level of investment in the Underground. It is clear that government resources are limited and we need the co-operation of the private sector through privatisation.
Lord Marsh: My Lords, did the Minister see a recent opinion poll which resulted in a finding that two-thirds of the people polled thought that privatising London Underground was a very bad idea? Rightly or wrongly, does he not think that there might have been an electoral misjudgment?
Viscount Goschen: My Lords, I also saw opinion polls at the time of the last election which suggested that the Conservative Party would not win it, but that did not prove to be the case.
Baroness Turner of Camden: My Lords, does the leaflet indicate the number of jobs likely to be lost as the result of privatisation or is that felt not appropriate for the leaflet?
Viscount Goschen: My Lords, I should be very happy to present a leaflet to the noble Baroness or she could come to Conservative Central Office to receive a more in-depth briefing. The leaflet sought to put the 10 guarantees which the Secretary of State gave to the House of Commons before a wider distribution so that passengers could read that. We know—and we have seen from the other privatised industries—that the only way forward for long-term success is to attract the investment and improve services. That is what guarantees jobs, not inefficiency.
Lord Avebury: My Lords, how much is being invested by the public in the renovation of the Bakerloo Line, and how will that be reflected in the price which is asked on privatisation?
Viscount Goschen: My Lords, as the noble Lord recognises, a large amount of investment is being put into the existing core network. I am not able to give the noble Lord a line-by-line breakdown, but if those figures are available, I shall provide them to the noble Lord. However, it is clear that a great deal more money is required to overcome the investment backlog. That is the important matter which we must tackle.
Lord Skelmersdale: My Lords, is my noble friend able to use his judgment to inform the House how long he thinks it will be before the Labour Party comes round to planning privatisation of the London Underground?
Viscount Goschen: My Lords, we have seen historic privatisations, which were opposed tooth and nail, to which the Labour Party has now come round and is championing. Indeed, it is an advocate of some of those
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privatisations. I cannot answer for the party opposite. It is still trying to work out what it will do about the heavy rail network and which parts of that are to be bought back. We should set the party opposite one challenge at a time.
Lord Dubs: My Lords, does the Minister remember that in the year before British Telecom was privatised, the majority of telephone boxes in London were out of order and were not repaired, I believe, in order to give the impression that privatisation would bring great benefits? Is it not the case that the Government's deliberate policy of starving London Underground of capital, especially at the present time, is happening so that the Government can put forward a spurious case for the benefits of privatisation? Had there been enough capital provided to run a decent system, those arguments about privatisation would count for nothing.
Viscount Goschen: My Lords, the noble Lord is quite wrong. I believe that that is a slur on the management of London Underground, which has achieved a great deal with the resources available at its disposal. But it is interesting to look at the figures. Over the next few years, investment in LT's core network will be on average 50 per cent. above the level of the 1980s and twice the level of the 1970s.
Lord McIntosh of Haringey: My Lords, was that answer not rather extraordinary? The Minister said in answer to my noble friend that his comments were a slur on the management of London Underground. Is he claiming that it is the management of London Underground which is responsible for the cuts in capital investment? Surely it is well known that management protested against the cuts imposed by government.
Viscount Goschen: My Lords, I believe that the noble Lord's question implied that scheming was taking place between the management of London Underground and the Government in order to do down London Underground and to follow the cynical policy of making privatisation look good. Nothing could be further from the truth. The fact of the investment figure which I have given—twice the level of the investment figures of the 1970s—has put paid to that. By that reckoning, the Labour Party was campaigning for the privatisation of the Underground 20 years ago, which was not the case.
Lord McIntosh of Haringey: My Lords, when the Minister reads my noble friend's question in Hansard, he will realise that there was no suggestion in it of there having been scheming on the part of the management of London Underground. My noble friend was complaining, quite rightly, about the cuts imposed on the capital programme of London Underground.
Viscount Goschen: My Lords, I dare say that we could continue the argument for a further 18 minutes or so. However, the fact is that the amounts provided to London Underground are far higher than was the case in the 1970s; the level of the core investment is twice that of the 1970s. The Government have been providing

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good and proper levels of investment. However, we all realise that more is required. Therefore, we have innovated proposals as to how to achieve that; but, from the party opposite, we have nothing.
Lord Hayhoe: My Lords, will my noble friend the Minister remind those who were responsible for the last three questions that the Shadow Chancellor of the Exchequer has adopted the public expenditure plans of this Government and has said that he will maintain them for two years? Therefore, what on earth are they talking about?
Viscount Goschen: My Lords, my noble friend makes a most interesting and poignant observation; and leaves rather a large hole in the financial predictions of the party opposite.
Lord Berkeley: My Lords, perhaps I may refer to my Question for a moment. Can the Minister confirm that London Underground gave the Conservative Party permission to distribute the leaflets on the system? Further, will the noble Viscount encourage London Underground to give the same permission to the Labour Party, as that might actually help distribute our policy when the time comes?
Viscount Goschen: My Lords, when the party opposite develops a policy, no doubt they will produce a leaflet.
Lord Dubs: My Lords, as the Minister referred to me on several occasions, perhaps I may put the following question to him. Is he aware that the comment I made earlier was intended to be in criticism of the Government's starving London Transport of capital and preventing an effective management of London Underground from doing the job that it wants to do? It is the Government who are at fault, not London Transport management.
Viscount Goschen: My Lords, of course I entirely accept the intention behind the noble Lord's earlier question. However, when the noble Lord accuses the Government of restricting the finance available to London Underground, I can, for the third or fourth time, tell the House that it was twice that of the 1970s. That must count for something in the noble Lord's arguments as regards the level of funding available to London Underground.

Single-sex Accommodation for Patients
2.52 p.m.
Baroness Jay of Paddington Baroness Jay of Paddington asked Her Majesty's Government:
What response they have received to the Department of Health's request to health authorities to submit, by the end of February, timetabled plans for providing single-sex accommodation for patients in hospitals.
Baroness Cumberlege: My Lords, most health authorities have now responded. The information is at
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present being collated by regional offices of the National Health Service Executive, and Ministers expect to receive a report of the results shortly.
Baroness Jay of Paddington: My Lords, I am grateful to the Minister for that reply, but I must confess to being somewhat disappointed by its lack of precision. Is the Minister saying that the ambitious targets that the Secretary of State described in January as needing to be both challenging and achievable in a relatively short time are simply still being discussed? Will that give real hope to those millions of patients who are most concerned about the issue? Alternatively, is this simply an attempt to kick the whole problem into touch until after the general election?
Baroness Cumberlege: No, my Lords. Health authorities were asked to submit their returns by 28th February. Those returns are now with the regional offices and, once they have collated and analysed them, they will be forwarded to the Secretary of State.
Baroness Jay of Paddington: My Lords, as we have time today, perhaps I may press the Minister a little further. After all, there are now only eight regional offices of the National Health Service. Is it not possible for the Minister to give at least some indication of the results that have been given thus far? This is an issue of some considerable urgency and one of great importance to many patients.
Baroness Cumberlege: My Lords, I accept that we are discussing a matter of urgency and of great importance to many patients. The noble Baroness will know that we have a great many hospitals in this country; we have a great many wards; and we have a great many beds. Indeed, we admit approximately 9 million people every year to NHS hospitals. It is a complex problem and the last thing I am sure the noble Baroness would want would be duff information.
Baroness Williams of Crosby: My Lords, will the Minister accept that, with the exception of some of the day operations and other such matters, for many patients the idea of a joint sex ward creates considerable distress? Could the noble Baroness at least give an indication to hospitals and health trusts when they respond to her that she would hope that they would approach the issue sympathetically and with due urgency?
Baroness Cumberlege: Yes, my Lords. It is because the Secretary of State, Ministers, the Government and, indeed, myself are concerned about the issue that further action has been taken. It has been in the Patient's Charter, but the Secretary of State was not convinced that enough attention was being given to this particular aspect of the charter. That is why firm action has been taken.

Justices of the Peace Bill [H.L.]
2.55 p.m.
Read a third time, and passed, and sent to the Commons.

Knives Bill
Baroness Hilton of Eggardon: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Hilton of Eggardon.)
On Question, Motion agreed to.

Policyholders Protection Bill
Read a third time, and passed.

Pharmacists (Fitness to Practise) Bill
Read a third time.
Baroness Gardner of Parkes: My Lords, I beg to move that the Bill do now pass. In doing so, I wish to place on record my thanks to Mr. Gary Flather, Chairman of the Statutory Committee, the disciplinary committee, of the Royal Pharmaceutical Society who, through his wife, my noble friend Lady Flather, raised important considerations about the Bill on Second Reading.
Moved, That the Bill do now pass.—(Baroness Gardner of Parkes.)
On Question, Bill passed.

Prevention of Terrorism (Temporary Provisions) Act 1989 (Continuance) Order 1997
2.57 p.m.
The Minister of State, Home Office (Baroness Blatch)The Minister of State, Home Office (Baroness Blatch) rose to move, That the draft order laid before the House on 18th February be approved [13th Report from the Joint Committee].
The noble Baroness said: My Lords, I should like to begin by thanking Mr. John Rowe QC for his report on the operation of the legislation in 1996. He concluded, following wide consultation, and an entirely independent scrutiny of the operation of the Prevention of Terrorism Act in 1996, that the Act remains necessary and that it should be renewed, in its entirety, for a further 12 months. The Government share his view and accept his recommendation.
It is now 23 years since the prevention of terrorism legislation was first enacted. The present Act was passed in 1989 and, like its predecessors, it was intended to be a temporary measure—one made in response to an exceptional threat. Very regrettably, the threat that we face from terrorism remains as great today. Within our midst, a callous, murderous minority remains determined to use violence to achieve its ends.
Last year, this House renewed the Act under the dark shadow of the bombing of South Quay. the deaths of two people caught in the blast, and the formal ending of the IRA's ceasefire. This year we must consider the need for its provisions against the background of a continuing campaign by the Provisional IRA in Great Britain and of a return to violence in Northern Ireland. The past 12 months reveal an all too familiar legacy of destruction: destruction of lives, of families, of homes, of livelihoods and of communities.
Following the South Quay bomb there were further attacks on the mainland and another death. These culminated in the bombing of Manchester city centre on Saturday 15th June. Over 200 people were injured in that outrage. It was a miracle that no one was killed, and a testament to the skills of all those who worked so quickly to move more than 80,000 people to safety.
In Northern Ireland, the IRA stepped up its targeting and readied its resources for a full return to violence in the Province. This came with tragic consequences, on 7th October. Two car bombs were detonated, one shortly after the other, and without warning inside Thiepval Barracks, Lisburn: 38 people were injured. As the House knows, Warrant Officer James Bradwell later died of his injuries. As your Lordships will remember, the second bomb had been placed outside the medical centre. It was deliberately timed to catch those trying to help those wounded in the first explosion. Such acts speak volumes about the kind of people with whom we have to contend.
That attack has been followed by numerous others, many of which have either been abandoned or have been successfully disrupted by the security forces. But only last month, on 12th February, Lance Bombardier Stephen Restorick was murdered by the IRA while checking a car at a vehicle checkpoint in Bessbrook. Stephen's parents hope that their son's tragic death will inspire renewed efforts on all sides to find a peaceful solution. I urge the IRA to listen to them and abandon violence for good. I urge the Loyalists to listen to them lest they fall into the trap of retaliation set for them by the IRA.
I can assure the House today that the IRA's atrocities have not and will not hold up the search for a political settlement in Northern Ireland. The talks process remains the only democratic alternative to the futility of further violence.
The IRA and its supporters think terrorism will achieve results which cannot be secured through negotiation and the ballot box. They are wrong. The multiparty talks began on 10th June without Sinn Fein. They were adjourned last Wednesday until after the general election and the local elections in Northern Ireland. The talks will resume on 3rd June. And they will continue in the next Parliament. Delegates

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representing the vast majority of opinion in Northern Ireland are engaged in a real effort to achieve an acceptable political settlement and a lasting peace. The Government want to see Sinn Fein join the talks. But this is entirely in its hands. The IRA knows what it must do. It must deliver an unequivocal ceasefire; it must stop its paramilitary activities; it must abandon violence for ever.
The fact that there have been no terrorist attacks on the mainland since the appalling attack on Manchester is no thanks to the IRA. The credit for this must go in large part to the vigilance of the police and security service. They have had several significant successes in both Great Britain and Northern Ireland over the past year.
For example, the police and Security Service believe that in July last year, with the discovery and seizure of a large number of devices in London, they foiled a serious and imminent terrorist attack on the mainland. Anther joint operation led to the seizure in September of a substantial amount of explosives, weapons and other terrorist equipment in London. The haul included over six tonnes of home made explosive, enough in fact for several bombs the size of the one which exploded in Manchester. These achievements and many others in Northern Ireland did not come easily. They were hard won by the determination, skill and vigilance of police officers and of the Security Service. We owe them a debt of gratitude.
We must not forget another key factor in these successes: the powers contained in the Prevention of Terrorism Act 1989. This Act gives police the powers they need to prevent whenever possible, and otherwise to investigate, terrorist attacks and to bring the perpetrators to justice. The Government are convinced that the powers in the Act are still necessary. This is why I am asking the House to renew them today.
As Mr. Rowe's report makes clear, the powers to arrest and to extend detention under the Act are vital weapons in the fight against terrorism. In Great Britain in 1996 there were 84 detentions under the Act. Of the 23 suspects who were held for more than the initial 48 hour period, 13 were subsequently charged with serious terrorist related offences.
In Northern Ireland, 569 people were detained under the Act, 48 of whom were held for more than the initial 48 hour period. Of those 48, 20 were subsequently charged with serious terrorism related offences; 135 other detainees were charged with other offences.
In 1996, the powers of detention under the Act were used on two occasions in respect of suspected international terrorist activity, though neither detainee was subsequently charged. The Government are convinced that these powers are needed both in relation to international terrorism and to terrorism in connection with the affairs of Northern Ireland. Noble Lords will recall that two people, both of whom were originally arrested under the Act in 1995, were convicted last December of the car bombing in London of the Israeli Embassy and a Jewish charity in 1994. Each is now serving 20 years. An Algerian national, who was also
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originally arrested under the Prevention of Terrorism Act in 1995, remains in custody here, subject to an application by the French authorities to extradite him in connection with the bombing campaign in France in 1995.
I know that some people believe that extensions of detention should be granted by judges rather than by a Secretary of State. Mr. Rowe has re-examined this issue in his report. Drawing on his own experience of the way in which the English and Welsh courts deal with public interest immunity hearings, he concludes that while judicial involvement might be possible in principle in England and Wales it would not be possible in the current circumstances in Northern Ireland. He thinks that it would be inappropriate for there to be different systems for granting extensions of detention in different parts of the United Kingdom. He concludes that judicial involvement in the process should not be introduced anywhere in the United Kingdom at the present time.
The Government do not believe that it would be right to involve the judiciary in the extension of detention process. This is because decisions to authorise the detention of terrorist suspects for periods beyond 48 hours are often taken on the basis of sensitive information which cannot be revealed to a suspect or his legal adviser without compromising the source of the intelligence. To reveal such information might create a serious risk to persons assisting the police or lead to valuable intelligence being lost. Any new procedure which allowed a court to make what amounts to an executive decision, on information not presented to the detainee or his legal adviser, and without the giving of reasons or the possibility of an appeal, would represent a radical departure from the principles which govern judicial proceedings in an adversarial system. It would create a very real risk of undermining judicial independence as the judiciary would be perceived as part of the investigation and prosecution process.
Mr. Rowe is right to say in his report that the courts in England and Wales are more familiar now with public interest immunity hearings and that in such cases the courts consider sensitive material sometimes at an ex parte hearing without the defence team present or even being aware of the application.
However, PII is concerned with rules of evidence, not with executive acts which determine whether an individual should be detained for questioning in relation to an investigation. In PII applications, the judge knows what the issues are for both sides. He has the prosecution statements and depositions and it will be clear from them what the defence case is. If it is not, he can ask the defence. In addition, the court has a duty to continue to monitor the disclosure issue. If it becomes clear that material which has not been disclosed would assist the defence then the court must reverse its previous decision and order disclosure.
This is very different from involving the court in an executive act to detain a suspect in circumstances where the court would be required to act on the basis of material which would not be disclosed to either the suspect or his legal adviser. Moreover, involving the judiciary in the process of granting or approving

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extensions of detention would create a real risk of undermining its independence as it would be seen as part of the investigation and prosecution process.
The Act contains other provisions which play a vital part in disrupting and combating terrorism. Again, as Mr. Rowe's report makes clear, the powers to stop, examine, and search those coming into, or leaving, Great Britain or Northern Ireland form a vital part of our defences. Of great importance too are the powers of the police to investigate terrorist finances and to obtain production and explanation orders in relation to funds and other material found.
As the House well knows, the Government added to the powers available to the police under the Prevention of Terrorism Act last April. We gave the police additional powers to stop and search individuals for articles of use in carrying out terrorist acts; to seal off the streets to prevent, or investigate, a terrorist attack; and to search non-residential property and unaccompanied freight at port. These additional powers are already proving their worth as Mr. Rowe's report makes clear. The police have, I understand, made extensive use in recent investigations of the power to search, under warrant, non-residential premises, without having to specify in which particular one they believe the terrorist material for which they are looking may be found. The additional powers to stop and search have also had an impact; the police believe that they have a significant deterrent effect and have disrupted the ability of terrorists to move themselves and their equipment around at will.
Perhaps the most sensitive power in the Act—and one about which some noble Lords opposite are concerned—is that of exclusion. The Government are convinced of the need for these powers. Exclusion orders disrupt and deter those bent on carrying out terrorist attacks and deprive the terrorist organisations to which they belong of some of their most experienced operators. That is also Mr. Rowe's clear conclusion. If the power helps us combat the terrorist menace then we must keep it.
Some have suggested in the past that the process of making exclusion orders is arbitrary and unfair. Mr. Rowe's report makes it clear that it is not. He has looked at all files relating to the cases which were dealt with in 1996. And I am pleased to note that he finds that all those involved in making the orders carried out their task carefully and fairly.
The powers are used sparingly not least in recognition of their exceptional nature. There are currently 23 exclusion orders in force. This is the lowest number ever since the power was introduced. It is possible of course that further orders may be made. But each case will, as now, be considered very carefully on its merits.
There are those who suggest that since the number excluded is now relatively small it would make little difference if all the orders were revoked. The Government do not accept that. We believe that they are needed and that they are effective. The alternative—mounting surveillance operations on all those currently excluded—would have enormous resource implications. It is simply not realistic, particularly when the police and the Security Service are fully engaged on preventing further attacks and investigating those which have already taken place.
Having explained why the Government believe that we should renew the Prevention of Terrorism Act for a further 12 months, I would like to turn briefly to the future.
In December 1995 the Government asked the noble and learned Lord, Lord Lloyd of Berwick, to consider the future need for specific counter-terrorism legislation in the United Kingdom in the event of a lasting peace in Northern Ireland. His report was published in October 1996.
Very regrettably, the conditions he was asked to anticipate do not exist at present. That is why the Government believe, as my right honourable friend the Home Secretary announced on 20th February, that it is too early to reach any firm conclusions on the more fundamental legislative changes which the noble and learned Lord, Lord Lloyd, has proposed.
I know that I speak for the whole House when I say that we hope that there will soon be an end to the violence. With a permanent cessation of violence we shall be able to look again at the possibility of providing a new legislative framework for combatting terrorism.
But the Government are determined that the police should have all the powers they need to combat the current threat from terrorism effectively. That is why we intend to bring forward proposals in due course to strengthen the existing controls on terrorist finances. These will build on the very helpful ideas of the noble and learned Lord, Lord Lloyd.
I have explained why the Government believe that it is essential that the Prevention of Terrorism Act should be renewed, in its entirety, for a further 12 months. We still face an exceptional threat from terrorism. The spate of recent attacks in Northern Ireland speak for themselves. No one should be under any illusion that the absence of an attack on the mainland since the Manchester bombing means that the threat here has disappeared.
The Prevention of Terrorism Act gives the police the powers they need to fight terrorism. We must ensure that the powers remain available to them—and for as long as they are needed. The Government are committed to keeping them. I commend the order to the House.
Moved, That the draft order laid before the House on 18th February be approved [13th Report from the Joint Committee].—(Baroness Blatch.)
3.15 p.m.
Lord Rodgers of Quarry Bank: My Lords, as the noble Baroness, Lady Blatch, will know, her speech very closely followed that made by the Secretary of State in another place. One of its many virtues is that whereas the Secretary of State spoke for 38 minutes, the Minister spoke for only 17. But she made all the important points which the House needs to consider, bearing in mind that we have been considering such orders for 23 years. Indeed, my noble friend Lord Harris of Greenwich introduced the Bill to this House 23 years ago. My noble friend Lord Jenkins of Hillhead initiated the policy which led to the Bill which led to the introduction by my noble friend Lord Harris at that time.

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However, as on previous occasions, I wish to refer to the remarks made at that time by my noble friend Lord Wigoder. Although not speaking from the Government Benches, as did my noble friend Lord Harris of Greenwich, my noble friend referred to the importance of safeguards. He asked, first, whether the proposed legislation matched the emergency, and reluctantly said that he believed that it did. He asked whether the encroachment on liberty which was inevitably involved was the very minimum necessary. Again, reluctantly, he concluded that it was. But in referring to the encroachment on liberty, he said that any such encroachment should be in no danger of drifting into becoming the permanent law of the land. When the noble Lord, Lord Wigoder, made those remarks 23 years ago, I do not believe that any Members of your Lordships' House really believed that that legislation, and its successor legislation of 1989, would be occupying us as it does today. It is a great sadness that that is the case.
Nevertheless, sharing all the sentiments expressed by the Minister about the sad circumstances again in Northern Ireland, we have to be careful that we do not start referring to our customary annual debate. This should not become part of a predictable spring ritual, almost a tradition of Parliament. It remains acutely important that both this House and another place examine the proposals that the Government of the day may bring forward and consider seriously whether they should be continued for yet another year.
I take the view that if these proposals are acceptable to Members of this House and to Members of another place then, however reluctantly, we should be prepared to support them. I do not take the view now, and have not previously believed, that there is any room effectively for abstentions. Either these are necessary measures, as from these Benches we reluctantly believe them to be, or they are unnecessary measures; and there is no halfway house in that respect.
The Minister referred to the report of the noble and learned Lord, Lord Lloyd. In speaking in the debate on 16th March 1995, I urged that the long-term review, about which there had been some discussion, should be set up without further delay. There was a delay until December 1995, but there is no point in complaining about that now. Again our sadness is that at the time the review was contemplated, and the noble and learned Lord, Lord Lloyd, was given his terms of reference, we all believed, as the noble Baroness said, that he was dealing with a situation in which peace had been restored in Northern Ireland. We believed that he was reviewing the need for the legislation in the light of the success of the peace process and the cessation of terrorism. Certainly I hoped at that time that the spirit of sanity and hope would endure and that apart from looking at the new situation in Northern Ireland the noble and learned Lord, Lord Lloyd, would be able to turn to what is referred to in Chapter 4 of Mr. Rowe's report: the threat of wide international terrorism. We have to recognise that even if we resolve the tragic problems of Northern Ireland, international terrorism is still with us.
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I merely make a point which follows from our previous discussions and from the report of the noble and learned Lord, Lord Lloyd; namely, that we should not assume that precisely the same legislation would be required if we were no longer dealing with the Northern Ireland situation.
The noble Baroness, Lady Blatch, referred in passing to judicial participation, mentioned by Mr. Rowe in paragraph 79 of Chapter 10, on page 27 of his report. I examined the paragraph very carefully. On these Benches we have been anxious to see, if not judicial participation as widely drawn as that term, judicial authorisation in some other matters that have occupied this House. But having read the paragraphs in Mr. Rowe's report relating to the difficulty of reconciling what might be possible in England and Wales with what might be impossible in Northern Ireland, my present tentative conclusion, subject to further reflection before we are faced with a similar renewal, is that the case has been made by Mr. Rowe against moving to judicial participation of the kind that he discussed and we have examined before. We need to approach this matter again next year, when we shall be clearer about the overall situation with which we are dealing.
I regret that we are faced with this renewal today. I am sorry that the process of renewal has now gone on for 23 years. However, for the most part I find myself endorsing the remarks of the noble Baroness the Minister and wish to add nothing further to today's discussions.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Rodgers, referred to this as being a "spring ritual" and regretted that fact. For one reason, I regret it as much as he does: it is that we still have terrorism in Northern Ireland. Those who have followed the events of the past year since the abandonment of the ceasefire in February 1996 can have no doubt that the IRA, although it has on many occasions been frustrated, intends to continue with the policy of the Armalite as well as the ballot box. For that reason we cannot resist the argument for the continuation of exceptional measures, even when they are described as temporary provisions.
From another point of view, however, I do not regret the fact that we debate this matter every year. It is true that temporary provisions ought not to carry on for 23 years. It is a commonplace in local government that nothing endures as long as "temporary" planning permission. However, it is desirable that we should be reminded of the conflict between the need to combat terrorism by all necessary means and the loss of civil liberty that is incurred thereby.
I yield to nobody in my recognition of the horror of terrorism. It is, as the noble and learned Lord, Lord Lloyd of Berwick, describes it in his report, a campaign against society, a campaign of people who are at war with society. But at the same time it is valuable that Parliament should be reminded of what we lose because of the activities of the terrorists of the IRA.
We must without qualification be grateful to the Army, the police and the Security Services for the relatively low loss of life in terrorist activities over the past year. That represents a very considerable success—

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perhaps in relation to the provisions of the Act and the continuance order; certainly in relation to the professionalism of those who have taken part. Even, paradoxically, when they were not so successful—as when the IRA succeeded in gaining access to Thiepval barracks at Lisburn when nobody thought that they could do so, which must be thought of as a failure for the Army and Security Services—the very success on that one occasion of the IRA serves to reinforce our determination to see that they have no further successes.
Therefore we take the position that we have taken for the past two or three years. We do not, either on the substance of the matter or on procedural issues, intend to oppose the order.
However, there are two issues for debate. They were raised by the noble Lord, Lord Rodgers, and it is necessary that they continue to be debated. The first is the judicial element in determining extensions of detention. Before I proceed to the substance of the issue, I, too, observed how closely the noble Baroness's opening remarks followed the remarks of the Home Secretary last Wednesday. There was, however, one significant difference. I wonder whether she will be good enough to consider it and respond to this point. The Home Secretary said:
"In Northern Ireland, 569 people were detained under the Act, 48 of whom were held for more than the initial 48-hour period; of those, 20 were subsequently charged with serious terrorist-related offences; and 135 other detainees were charged with other offences".—[Official Report, Commons, 5/3/97; col. 9201
It is not clear from the Home Secretary's remarks whether, when he said "of those", he meant "of the 569 people who were detained" or of the 48 who were detained for more than the 48-hour period. The Minister made it clear in her introduction. She said "Of those 48, 20 were subsequently charged". It would be interesting to know whether she was right and the ambiguity of the Home Secretary's statement was purely accidental.
I do not believe that either the Minister or the Home Secretary does justice to the conversion of Mr. Rowe in his report, and in particular in paragraphs 84 to 94. Mr. Rowe started with the position last year that the practice of judicial intervention would be,
"unusual and a straining of the judicial function";
and that is the conclusion that the Government reach today. But Mr. Rowe changed his view in the course of the year. I notice that the noble and learned Lord, Lord Hailsham of Saint Marylebone, agrees with Mr. Rowe's previous view. I wonder whether he will agree with what Mr. Rowe now says. He says that the role of the judges has increased, in particular in relation to public interest immunity hearings, which have become more and more common. He continues:
"It seems to me that the gate has been opened by them; judges are used to the one-sided procedure; they apply themselves to a judicial attitude of holding the balance for the absent defendant.
Thus my original objection has gone. Furthermore, while I repeat that there is no criticism of any participant in the present procedure, I myself would prefer a judicial participation in it. If possible, decisions about liberty should he made by judges and not by the executive".
As the Minister said, Mr. Rowe goes on to point out practical difficulties in Northern Ireland, although not in England and Wales, in relation to judicial intervention.
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However, I was disappointed to find the Minister repeating the arguments which Mr. Rowe himself rejected and claiming, as Ministers did in the early debates on the Police Bill, that judicial intervention would be an involvement of the judges in the process and would take away from their independence.
This House persuaded the Government and the Home Secretary that that was not the case when it came to intrusive surveillance—bugging. The Home Secretary has now accepted that the intervention of particular judges—commissioners—in the authorisation process for intrusive surveillance is a proper intervention and does not compromise the judges. Why can the Minister not take the same view? Why cannot the Government take the same view now? The noble and learned Lord, Lord Lloyd of Berwick, takes the view not only that it is right for there to be judicial authorisation, a judicial element in determining extensions of detention, but also that it is workable. I am the first to acknowledge, of course, that he does so in the context of a report on what legislation would be necessary with a lasting peace. We do not have a lasting peace. However, the noble and learned Lord, Lord Lloyd of Berwick, states that in England and Wales, or at any rate in England, the chief metropolitan stipendiary could be nominated as the relevant judge. In Scotland, the sheriff principal of Lothian and the Borders could be the relevant judge. The noble and learned Lord goes on to say that that post is lacking in Northern Ireland but could be created.
Under those circumstances, is not judicial intervention in the extension of detentions not only desirable, as Mr. Rowe and the noble and learned Lord agreed, but practicable'? Is that not one of the recommendations of the noble and learned Lord, Lord Lloyd, which could be implemented without waiting for the lasting peace which we all desire? In that respect, we believe that the Government are not responding adequately to civil liberties concerns. We shall see to it that judicial intervention is introduced as soon as possible.
The second issue which we have to debate again is the issue of exclusion. It has been pointed out that the number of exclusions is declining. We have been told again today that there are only 23 exclusion orders in force and none has been issued since 1994. But how, then, can the Home Secretary and the Minister be right in saying that there would be substantial resource implications? At col. 923 of the Official Report for 5th March, the Home Secretary said in another place that there would be substantial resource implications in the continuing surveillance which would be necessary if exclusion orders were no longer to exist. The surveillance of 23 individuals at the ports and borders between Northern Ireland and the rest of the United Kingdom cannot be such an expense as to justify the continuation of something which has been defended on the grounds of necessity but which could now be abandoned, bearing in mind the facts and the desirability of not having exclusion orders.
Exclusion orders revive a power which has not existed in this country since the time of Henry VIII—the power of internal exile. I do not believe that they work. I believe that they are in conflict with basic civil liberties and are likely to be in conflict with international law. Since we are now in a position where they could be got rid of without

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excessive expense, surely that should be a high priority for the Government, as it will be for a Labour government. There is no reason now why we should not say that no further exclusion orders will be issued and that those in force will, after proper examination, be revoked.
The debate may be a spring ritual, it may be of interest only to a limited number of people. But for those of us who are concerned about the twin issues of civil liberty and terrorism, it is essential that the debate should take place. Of course we accept that the fundamental breach of civil liberty takes place not because of the order and the law, but because of the activities of terrorists. That is the fundamental fact which leads us to support the order. But unless we bear those two points in mind, we shall not be doing justice to the seriousness of the issues before us this afternoon.
3.35 p.m.
Lord Merlyn-Rees: My Lords, I wish to intervene to ask the question picked up by my noble friend Lord McIntosh. Two pieces of legislation affect Northern Ireland: the Emergency Provisions Act, which is tailored for the needs of Northern Ireland, and the Prevention of Terrorism Act, which applies in the whole of the United Kingdom. The EPA is the one that concerns Northern Ireland. Why is there a need to use the Prevention of Terrorism Act to such a degree in Northern Ireland, given that there is separate legislation which is the lineal descendant of the legislation put through the other place and this House by Mr. Gladstone, for example, in the last century? It has been in existence much longer than 23 years: it has been with us a long time. I am sufficiently gloomy about the whole affair to believe that, although my noble friend Lord McIntosh said "While we are awaiting peace in Northern Ireland", we shall wait a jolly long time for peace to come about. The problem has been going on for a long time. My question is: why use the Prevention of Terrorism Act to such a degree and on what issue in Northern Ireland, given the special legislation available for that country?
I have just come back from Dublin. The Republic has its own special legislation, which, in many respects, is more draconian than anything we use in Northern Ireland or here. It has been in existence for a long time, it will be there for a long time to come and it is as well to ask why we need the two pieces of legislation.
3.36 p.m.
Baroness Blatch: My Lords, first, I welcome the words of the noble Lord, Lord Rodgers of Quarry Bank. I understand precisely the context in which he gave his welcome to the renewal order. The noble Lord, Lord McIntosh, expressed concern about the exclusion order powers and the objections which can be made to it on civil liberties grounds. May I say at once that I fully understand those concerns, but as the noble Lord knows, the powers are exceptional. Sometimes circumstances are such that we have to accept measures which in normal circumstances we would not contemplate.
The hard realities are these. The IRA and other terrorist groups in Northern Ireland have the weapons and the explosives with which to carry out further attacks. They
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have the personnel and, more significantly, the will to use them. The exclusion order powers are an important part of our defences against that threat. The Government believe that it would be irresponsible to abandon them while the need for them so clearly remains.
As regards extensions of detention under Section 14 of the Act, I can assure the House that my right honourable friend the Home Secretary considers each case very carefully on its merits. He examines the case put to him by the police and their reasons for seeking to detain the suspect. Those can include the need for further inquiries or searches to be made; for forensic tests to be carried out; or, particularly where international terrorism is suspected, for suspicious material to be translated. The Home Secretary takes account of any intelligence we might have about the person or persons concerned, and where an extension of detention is necessary for investigative purposes, it is granted for that purpose.
The noble Lord, Lord Rodgers of Quarry Bank, referred to the length of my speech, for which I am grateful. He will know that in this House we are more self-disciplined than in the other place. I am sorry that I did not recognise the part played by the noble Lord, Lord Harris of Greenwich, who was instrumental in putting the first measure to Parliament. I share with him the regret that here we are, 23 years later, still inviting Parliament to consider renewing what is, at the end of the day, a temporary measure.
I agree with the noble Lord, Lord Rodgers, that it is acutely important—I use his words—that any renewal should be very carefully considered against any matching circumstances and the need for those special measures. Again, like the noble Lord, Lord McIntosh, I make no apologies for the fact that we have to consider this measure each year. I believe that it should be properly considered by Parliament each time that we invite consideration of an extension.
Mention was made of the work of the noble and learned Lord, Lord Lloyd. Again, I remind the House that the context was in the event of a lasting peace. Sadly, we do not have that. But we all look forward to considering longer term regulation against more peaceful times. We must, however, use the caveat mentioned by the noble Lord, Lord Rodgers of Quarry Bank, that terrorism, even following a peace settlement in Northern Ireland, will continue to need to be a consideration.
The noble Lord, Lord McIntosh, asked if I would confirm what he detected as a difference of emphasis or even fact about the numbers in the two speeches. I can assure him, as I said in my opening remarks, that of the 48 held for more than the initial 48-hour period, 20 were subsequently charged with serious terrorist offences.
The noble Lord, Lord McIntosh, was very concerned about judicial involvement. Again, we need to understand the context of renewing the temporary measures and that any need to address this involves matters for the longer term. When he carried out his work, the noble and learned Lord, Lord Lloyd, was talking about the advent of a lasting peace. The government amendments to the Police Bill at Committee stage in the other place, to which the noble Lord, Lord McIntosh, made reference, do not give

21
commissioners the decision on whether to bug. They allow them, in certain sensitive cases, to approve authorisation given by chief officers applying the "reasonableness" test. It is therefore a supervisory role and does not give commissioners operational powers.
Lord McIntosh of Haringey: My Lords, I am grateful to the Minister for giving way. I shall not pursue the issue in relation to the Police Bill. I have not seen the Government's amendments on those points. If they are so limited as she says, it may be a cause for concern. Perhaps I may remind her that the noble Viscount, Lord Colville of Culross, in the last full review of these powers, came to the conclusion that he was against their renewal or replacement, even though he was not concerned only with the situation under a lasting peace. He was concerned with the situation now and he took a different view from that of the Government.
Baroness Blatch: That may be so, my Lords, but Parliament—Parliament is sovereign in these matters—has considered that point and considered on each occasion that these measures should be renewed as temporary measures. The Government have taken the view that these measures are needed and Parliament has supported it. So, while we take seriously any reservations that anybody may have, nevertheless, Parliament does properly consider this matter and we have considered the matter. Certainly, since the noble Viscount, Lord Colville, made his reservations known, Parliament has determined the matters.
The noble Lord, Lord McIntosh, referred to Mr. Rowe's proposals that could be implemented. As I explained, the Government do not believe that it is possible to involve the judiciary in the extension of the detention process. The proposals of neither the noble and learned Lord, Lord Lloyd, nor Mr. Rowe answer the difficulties that we have identified: for example, the lack of information which can go to the detainee; the lack of challenge possible to the intelligence picture; and the impossibility of appeal. We believe that those are very important matters to the defence which need to be given consideration.
Frankly, I simply disagree with the final point made by the noble Lord, Lord McIntosh. It is sometimes said that, instead of excluding people who are thought to present a terrorist threat, the police should keep them under surveillance. I believe that was the point made by the noble Lord. But to anyone—I repeat anyone—who knows about these matters, that is quite unrealistic. Surveillance is very resource intensive. The cost of keeping even one single person under effective surveillance is very high indeed. We believe that it would be a substantial resource issue to keep 23 or more people under surveillance anywhere in the United Kingdom.
Lord McIntosh of Haringey: My Lords, I am sorry again to intervene but surely those are people who are thought of as very dangerous terrorists and they are being confined to Northern Ireland. Are they not under surveillance in Northern Ireland? What is the difference
22
between surveillance in Northern Ireland and surveillance in the rest of the United Kingdom, if they were to come here? I cannot see the difference in resource implications.
Baroness Blatch: My Lords, it is a matter of containing and managing the0surveillance of such people. We simply must agree to differ with the noble Lord. If he believes that these are not important measures and can be dispensed with, it must be for him to use the parliamentary process to make that view known. After very careful consideration, we have taken the view that the exclusion orders have played a useful part. We believe that there is a very strong case for keeping them in play.
The noble Lord, Lord Merlyn-Rees, spoke with enormous experience, and he has a great deal more experience than I have of these matters. He asked the straightforward question: why do we need these temporary measures? It has been the subject of consistent debate every time the measures have come forward for renewal. I understand that the Prevention of Terrorism Act contains different powers from the EPA; for example, extensions of detention and exclusion orders, which are not contained in the legislation referred to by the noble Lord.
I described the threat that we face. The Government believe that this legislation forms a vital part of defences. I believe that the vast majority of the people in this country support the measures contained in the Act. The public want to be protected. They do not want to have their lives blown apart, their families shattered or their businesses destroyed. They want the police and the security forces to have the powers and the resources that they need. They understand the road checks and searches which now form part of our lives; indeed, it is clear from Mr. Rowe's report that many welcome and feel reassured by them. I believe that we face a very real threat. This is a proper and measured addressing of that threat. I commend the order to the House.
On Question, Motion agreed to.

Protection from Harassment Bill
3.47 p.m.
Report received.
Clause 3 [Civil Remedy]:
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1:
Page 2, line 10, at end insert—
("(2A) Where—

(a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and

(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,

the plaintiff may apply for the issue of a warrant for the arrest of the defendant.

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(2B) An application under subsection (2A) may be made—

(a) where the injunction was granted by the High Court, to a judge of that court, and

(b) where the injunction was granted by a county court, to a judge or district judge of that or any other county court.

(2C) The judge or district judge to whom an application under subsection (2A) is made may only issue a warrant if—

(a) the application is substantiated on oath, and

(b) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.").

The noble and learned Lord said: My Lords, as I indicated when the Bill was in Committee, although many of its provisions are based on the very effective model provided in Part IV of the Family Law Act 1996, it was neither necessary nor appropriate to reproduce all the detailed provisions from that legislation in the present context.
One very significant difference between the two remedies is that here a person who without reasonable excuse does anything which he is prohibited from doing by an injunction will have committed a criminal offence for which he can be arrested, as well as being in contempt of court. That is why there is no need for the court granting the injunction to be able to attach to it a power of arrest authorising the arrest without warrant of a person suspected to be in breach. Indeed, the creation of such a power in the civil court could lead to some confusion, since the police officer carrying out the arrest would have two quite separate powers authorising his actions. Although the conduct justifying the arrest would be exactly the same, the question would then be what his next step should be—to which court the person should be brought.
As the conduct complained of would, or might, amount to a criminal offence, it must follow that if prosecution is in the public interest, that is the course which should be followed. If that leads to a conviction, it would not be fair that the person should again be punishable for the same contempt of court which was the very basis of the conviction.
However, I am grateful to the noble Lord, Lord Meston, for pointing out that, in some circumstances, civil proceedings for contempt might be brought instead of prosecution. That could happen if there were a decision that the arrested person should not be charged, or, if he has already been charged, that criminal proceedings should be discontinued. The effect of that decision would be that there was no longer any power to hold him, or to bring him before another court. This amendment provides the machinery which would allow that to be done. The civil court would be able to issue a warrant for his arrest, which would be effective immediately the decision to discontinue criminal proceedings was taken, so that there would be no hiatus. It would not be appropriate for the warrant to be effective before then because, as I have said, it must be clear that pending criminal proceedings under Clause 3(3) may not be overtaken by contempt proceedings. Conversely, if it is decided that there ought to be a prosecution after contempt proceedings have been begun, those proceedings should not continue. These are matters properly to be
24
dealt with by rules of court. In practice, what is likely to happen is that the choice will be made very early on, so that these supplementary provisions will not be needed. But it is right that we should have them, to cater for the occasional exception.
Amendment No. 1 inserts three new subsections setting out the court's power to issue a warrant, in response to the concerns expressed by the noble Lord, Lord Meston. Amendment No. 2 is a consequential drafting amendment, which I shall move formally. I beg to move.
Lord Harris of Greenwich: My Lords, my noble friend Lord Meston asked me to express his apologies for not being here today. He has been detained by a case in court. He asked me to express thanks to the noble and learned Lord the Lord Chancellor for meeting his point, which represents a significant improvement in the Bill.
Lord McIntosh of Haringey: My Lords, I echo the thanks expressed by the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Harris, to the noble Lord, Lord Meston, for his constructive suggestion which resulted in these amendments.
Perhaps slightly less apropos I express thanks too to the noble Lord, Lord Thomas of Gresford, for not tabling his amendments again. As the House will recall, they were extensive amendments and would have completely rewritten the Bill—in the view of some of us, not to very good effect. However, I hope that the noble Lord, Lord Thomas, feels that his amendments were taken seriously and that proper debate was held on them. He said in Committee that he would bring them back at Report stage. I hope that, on reflection, his decision not to do so does not indicate that he will bring them back at Third Reading. I am not convinced that that would be helpful to the House.
These amendments are clearly in line with the spirit of the way in which the Bill addresses the extraordinarily difficult problem of stalking. The Lord Chancellor explained clearly not only why they may be necessary, but also why they may be necessary in only a limited number of cases. I am sure we all wish that to be the case. We would not want to see what is, in effect, contempt of court extended beyond what is absolutely necessary. I accept that the amendments fill a gap in the Bill; they make it more effective and I welcome them for that reason.
The Lord Chancellor: My Lords, I am grateful for those comments. In relation to the noble Lord, Lord Thomas, I echo the point that his proposals were taken extremely seriously. I spent some time examining them with him. The decision he took not to move them on Report results from his further consideration of the matter. For all I know, he may wish to say something about them later. However, I should have thought that, having regard to the nature of the amendments, it would probably not be appropriate to reconsider them fully at Third Reading when they have not been reconsidered on Report, but that must be a matter for the noble Lord, Lord Thomas of Gresford.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 2. line 13, leave out from ("purpose") to ("and") in line 14 and insert ("mentioned in subsection (2A)(a)").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 8 [Harassment]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 5, line 1, leave out from ("appropriate") to end of line 2.
The noble and learned Lord said: My Lords, once again I am grateful to the noble Lord, Lord Meston. In Committee on 17th February, I listened carefully to the argument put forward by him in favour of an amendment which would have allowed a Scottish civil court to extend the duration of a non-harassment order which it had earlier made. That would enable the court, where appropriate, to continue its original remedy and provide extended protection to a victim who remains apprehensive.
Having examined this issue, the Government are able to bring forward today an amendment to that effect. The Government consider that this amendment would provide flexibility to the court and protection to the victim, while keeping in mind the interests of the person against whom the order is made.
The noble Lord, Lord Meston, was slightly diffident in approaching this matter on the basis that it was the part of the Bill that concerned the law of Scotland while his expertise lies in the law of England. Nevertheless, I am glad that his intervention was fruitful and I am sure that it can happen sometimes in both directions. I beg to move.
On Question, amendment agreed to.

Crime and Punishment (Scotland) Bill
3.55 p.m.
The Lord Advocate (Lord Mackay of Drumadoon): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Mackay of Drumadoon.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 14 [Driving disqualifications]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 110:
Page 21, line 9 leave out ("determinate period") and insert ("period not exceeding twelve months").
The noble and learned Lord said: With the leave of the Committee, in moving Amendment No. 110 I shall speak also to Amendment No. 111.
These amendments seek to restrict to a maximum of 12 months the period of disqualification from driving which a court could impose for fine default under the new Section 248B of the Criminal Procedure (Scotland) Act 1995. It would allow the upper limit to be varied but only
26
by order subject to affirmative resolutions. The amendments bring the Bill into line with the similar provision in the Crime (Sentences) Bill. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 111:
Page 21, line 30, at end insert—
("(6) The Secretary of State may by order made by statutory instrument vary the period specified in subsection (2) above; but no such order shall be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.").
The noble and learned Lord said: I spoke to Amendment No. 111 when moving Amendment No. 110. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 14, as amended, shall stand part of the Bill?
Lord McCluskey: I oppose that Clause 14 should stand part of the Bill. This is the clause with which Members of the Committee will be familiar from the Crime (Sentences) Bill. It gives the court the power to disqualify in respect of any type of offence at all.
The first point I wish to make is that the Crime and Punishment (Scotland) Bill proceeds upon an assertion by the Government that the punishment should fit the crime. It is difficult to see what disqualification from driving has to do with the vast range of crimes for which it is to become a penalty under the provisions of this Bill.
A more general point applies to this clause, as to many others; that is, the absence of consultation beforehand. The Committee will have heard the noble Lord, Lord Thomas of Gresford, address the Committee on the Crime (Sentences) Bill and point out that a disqualification power of this kind made its first appearance at the tenth sitting of the committee on the Crime (Sentences) Bill in another place. In Scotland it made its first appearance on 8th October when the Secretary of State made an announcement. He wrote in his letter to the Lord Justice General of Scotland,
"on 8 October I announced that we intended to allow the courts to disqualify persons from driving for offences which are not related to motoring offences".
That was an announcement of intention, not simply a proposal. On 6th November the Secretary of State wrote to the Lord Justice General saying,
"I am writing to seek views on a proposal I am minded to include, by way of Government amendment, in the Crime and Punishment (Scotland) Bill. The proposal is to extend the use of discretionary disqualification from driving to offences not directly related to driving".
That was intimated to the Lord Justice General. He was asked on 6th November to respond as quickly as possible because proceedings in the Standing Committee in another place were to start five days later, on 11th November. That letter of 6th November also intimated that implementation would proceed initially by way of pilots in individual sheriff courts. This matter concerned us on a previous occasion. It is difficult to see how one can have pilots in relation to a penalty of this

27
kind. However, no doubt the Minister will be able to explain the thinking behind that. I am not averse to pilots in appropriate circumstances.
In relation to the matter of consultation, I should like to know from the Minister why this idea came up in October/November 1996. Whose idea was it? Was it simply borrowed from England? The noble Lord, Lord Thomas of Gresford, informed the Committee—and I think Members of the Committee would know—that the Magistrates' Association in England had severe reservations about this and the Justices' Clerks' Society was entirely opposed to it. I wonder who, if anyone, supported it.
I have briefly made the points that I hoped the noble Lord, Lord Thomas, would be here to make, but he is not able to be in his place. This type of provision could pose a serious threat to the rehabilitation of offenders. Many offenders, if they are to obtain work—that is the best route to rehabilitation—will require to have their driving licence in order to obtain work. In addition, this provision poses a serious threat to other road users. Your Lordships, particularly those with experience of the law, will know that there are many uninsured drivers on the road. If a person is involved in a collision with or is knocked down by an uninsured driver he can have great difficulties in recovering appropriate compensation because the route via the Motor Insurers Bureau is by no means a satisfactory and easy one. There is a threat to other road users. Furthermore, a penalty of this kind is particularly hard in rural areas where people are much more heavily dependent upon motor cars.
Finally, one of the matters about which the public in Scotland are alleged to be concerned is inconsistency in sentencing in different courts—an arbitrariness in relation to such sentencing. If this power is given in the extraordinarily unqualified way in which it is given in this clause we are liable to see much more arbitrariness and much more inconsistency than we have now. For those reasons I would invite the noble and learned Lord the Lord Advocate to produce a better justification for this type of penalty than we have yet seen.
Lord Harris of Greenwich: Reference was made to the fact that my noble friend Lord Thomas of Gresford is not here. The reason is, as was the case with my noble friend Lord Meston, that he is involved in a case in the courts which unfortunately has been delayed. The case is in Birmingham. Otherwise, my noble friend would be on his feet now supporting the noble and learned Lord, Lord McCluskey.
Lord Monkswell: In rising to support the noble and learned Lord, Lord McCluskey, I wonder whether the Government have really taken on board the full implications of this idea. Until now the whole business of having a licence to drive a motor car has been to do with the process of driving a motor car. One pays a licence fee, one passes a test and one is permitted to drive a motor car. The licence is a piece of paper which says that the driver has the ability to drive a motor car. A driving licence can be revoked or withdrawn if the individual has demonstrated his or her unfitness to drive a motor vehicle.
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The fact that one has committed a criminal offence in some area of activity completely unrelated to driving does not come into that category. What is proposed is a departure from the normal considerations that we have grown up with over the past 100 years of motor vehicle driving in this country.
Is this the beginning of a whole range of punishments that are unrelated? Will the Government next bring in the ability to prevent someone having a dog but not because he mistreats the animal, which is the way the courts look at the issue at the moment? A person may be prohibited from owning a dog or even a horse because he has a history of maltreating animals. Will we see a situation where, because someone commits a crime in a completely unrelated area of human activity, he will be prevented from owning a pet?
Have the Government thought through the implications of what they are doing? I have mentioned before in the Chamber that there are two categories of offender. The first category is those who are basically law-abiding people who, after a fit of nervous attack, commit a crime, something of which they are mortally ashamed and would never think of repeating. If such people are deprived of their driving licence they will probably not drive a motor vehicle. They are innately honest, decent people. The other category is people who one might describe as of a naturally criminal bent, who think nothing of transgressing the law. If you take away their driving licence it will mean absolutely nothing to them. All they will do is carry on driving their car, as the noble and learned Lord, Lord McCluskey, pointed out. They will be uninsured and therefore will be a hazard to other road users.
The Government should think this through, take on board the criticisms that have been made from a number of directions and withdraw this element of the Bill.
The Earl of Mar and Kellie: I am not convinced that this proposal will prove to have a wide use in Scotland. I am in favour of the search for an ever increasingly wide variety of community sentences, but, like other noble Lords, I have reservations about these proposals. My reservations are in two areas. The first is the wide range of effects a driving ban will have on different convicted persons. The casual and leisure only driver is lightly punished, unless of course he or she is the sole driver in the family and lives at the head of a glen, which leads to problems with the children attending school and the family being able to get the shopping, often at great distance. For the at-work driver, such a sentence is a sentence to lose one's job. That is a direct equivalent of imprisonment. So long as these wide variations are taken account of during consideration of sentence the measure may possibly be okay, but only if the considerations are gone into in some depth and the sentence is not used casually.
My other consideration has to be about finding offenders who are drivers who will obey the driving ban. Like other Members of the Committee, I recognise that there is a risk of a new class of uninsured driver emerging and a new class of victim. As the noble and learned Lord,

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Lord McCluskey, said, there will be people who are left to fight their way through the uninsured driver claim system, if something like that really exists.
If this clause is to be accepted, I need to hear from the noble and learned Lord the Lord Advocate that the matter will be piloted extensively in both extremely rural areas as well as urban areas. I feel reasonably confident that the scheme could work in an urban area, but I believe that it will be very difficult to operate in remote rural areas. There is the risk of it being counterproductive, as other Members of the Committee have mentioned, as regards the link between the ability to drive and to get a job. That is significant and needs to be safeguarded. I believe that that is widely understood.
Lord Macaulay of Bragar: I had not intended to enter the debate at this stage because I believe the wording of Clause 14 requires a lot of consideration. So far as I can see, what has not been looked at are the social consequences of the removal of a driving licence from a person who may very well have not been doing very much in the anti-social sense of the word. Once that happens, we have a ladder. What happens if a person has a driving licence and he is a long-distance lorry driver who happens to be doing a little bit of poaching? I am sure that Members of the Committee know that nobody poaches illegally in Scotland; but let us assume that someone does and uses a vehicle to get to the river at midnight and is nabbed by the police. That person may have three, four, five or six children who depend on his livelihood for their existence.
The reason that I did not speak on this clause earlier is because I wanted to look at it very carefully before Report stage. It seems to me that it will drive people into the public sector for support. As regards the wife and the children, with no husband to support them because his job has gone as a long-distance lorry driver, is it fair to deal with them in this manner? There are already plenty of provisions within the law for confiscating anything that is used in the commission of a crime. I do not understand why this clause has been brought into the Bill unless again it is the old, macho politics which we are dealing in in this Bill, which I hope will never see the light of day, but we have to keep talking about it.
With great respect to the noble Earl, Lord Mar and Kellie, I was a little perturbed to hear him suggesting that we should have another pilot scheme. There have been so many of them suggested in the past three weeks in this Chamber that they will be crashing into each other in the sky. Let us look at things realistically. Why do we need a pilot scheme? Either the law is right or the law is wrong. We should forget about pilot schemes. I will not go beyond that. I do not accept the idea as regards pilot schemes. Let us have a clear definition of the law and let the noble and learned Lord the Lord Advocate come before us and say what is the purpose of this particular provision in Clause 14(1) and what it is meant to achieve.
If, for example, a family is driven onto social benefits, are the Government going to support it and accept that the provisions of Clause 14(1) may very well have dramatic social implications? I do not say this in any sexist sense, but as we all know—and I am sure the noble and learned Lord the Lord Advocate knows—sometimes a wife, in
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looking after the children at home, does not know what her husband is up to, poaching or otherwise, and he is using the car doing this or that. Is the family to be penalised for the activities of the husband or do we try to keep some sort of civilised balance and perhaps penalise the husband, but not take the licence away unless it is necessary and has been used in the commission of a crime rather than follow the draconian measures contained in this particular part of the Bill?
4.15 p.m.
Lord Mackay of Drumadoon: I very much regret that the noble Lord, Lord Macaulay, is not able to give this proposal the support which his English colleague, the noble Lord, Lord McIntosh of Haringey, was prepared to give. He said that he had some reservations about it, but he recognised that the sentence proposed is on a trial basis and can be withdrawn at any time if it does not work and that he would be prepared to give it a fair wind, which I understand to be the approach taken by the noble Earl, Lord Mar and Kellie, as well.
Lord Macaulay of Bragar: Perhaps I may interrupt the noble and learned Lord. Can I remind him that we are dealing with the Crime and Punishment (Scotland) Bill? I am not particularly interested in what happens south of the Border. We are dealing with a particular piece of legislation which applies north of the Border and let us get on with it and stop messing about.
Lord Mackay of Drumadoon: I am sure that Members of the Committee will have heard what the noble Lord has just said and no doubt they will bear that in mind in the event that this matter is pressed to a Division. I should like to be quite clear about this. This provision is designed to provide another alternative to the sentencing court the first time that the matter comes before the court for sentence, which is the purpose of the new Section 248A, and when one is dealing with fine defaulters. That is a common problem which besets the sentencing court. As I have already observed on this Bill on more than one occasion, the Government are always being encouraged to do what they can to keep people out of prison whether as regards the original sentence or instead of a fine. That is why this proposal has been put forward and is to be piloted to see whether it works and achieves the objective which the Government believe it will have, and certain Members of the Committee are prepared to give it a chance to prove itself.
A number of complaints are made about the lack of consultation. As the noble and learned Lord, Lord McCluskey, has said, it is correct that the matter first appeared as a proposal in October and November of last year. Since then it has gained a measure of support. It might be of assistance to Members of the Committee if I read what the Lord Justice General said in a letter of 7th November 1996 addressed to my right honourable friend the Secretary of State. I believe that the noble and learned Lord,

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Lord McCluskey, advised the Committee last week that the noble and learned Lord, Lord Rodger, has a weekly meeting of judges at which matters of current interest are discussed. This proposal having been put to him by the Secretary of State, he replied in the following terms:
"I was able to discuss the matter briefly with a good number of the other judges at our meeting this morning. I would not oppose the proposal since it adds to the range of non-custodial options open to a sentencing judge or sheriff and the penalty of disqualification may indeed be one which could be effective especially among young people who greatly prize their freedom to drive".
He went on to refer to the point which has been raised by more than one Member of the Committee: it could lead to an increase in the number of offences for driving while disqualified. That would add to the workload of the court. He pointed out that we might find that it gives an effective option only in sentencing the better-off; namely, those who have a licence and a car to drive. I trust therefore that noble Lords will accept that there is a measure of support from the noble and learned Lord, Lord Rodger, and the other judges who have been consulted. The proposal has the support of the Association of Chief Police Officers (Scotland) who have a fair knowledge of life in Scotland and of which penalties are effective in controlling those who offend against the law.
As I have said, the point about driving while disqualified is a valid concern which will require further consideration during the pilot schemes. However, as has been said, there is in existence the Motor Insurers Bureau, of which I have had a fair measure of experience over the years in acting for people who have been injured by an uninsured driver. The bureau was set up by the insurance companies to provide effective remedies where personal injury is suffered in such cases. Of course, such a risk always exists when periods of disqualification are imposed. Until now, I am not aware of anyone saying that there should not be such a penalty for driving while disqualified, driving without insurance, driving while under the influence of drink or for driving dangerously. It is a risk which is inherent in that penalty and which will clearly need to be examined as the pilot scheme proceeds.
The issue of rural areas is also a valid point to raise. The courts will have discretion over the period of disqualification that they can impose. That period has been limited under the amendments that I have just moved in relation to fine defaulters. Clearly, among the factors which a court will have to consider is where the offender lives, whether he is in employment—if he is, presumably he will be in a better position to pay a fine than someone who is unemployed and it may therefore be less likely that the penalty will be necessary in his case—and what arrangements require to be made to take children to school or older people to hospital. Those are all circumstances that will need to be laid before the sentencing court. One hopes that the courts will approach this in a sensible and all-encompassing manner. There is no reason to doubt that they will.
The noble and learned Lord, Lord McCluskey, questioned whether this might lead to increased arbitrariness in sentencing. No doubt it will take some
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time for the sentencing judges to work out the best way to deploy the new sentencing procedure but, with guidance from the Appeal Court, there is no reason to doubt that it will work.
I venture to suggest that a pilot scheme is a singularly good way to examine the proposal and to see whether it will work as opposed to having endless consultations and discussions. This is a new proposal. The Government acknowledge that it is innovative, but it has a measure of support and for that reason I hope that the Committee will find it possible to support Clause 14.
The noble Lord, Lord Monkswell, asked whether we had any proposals to ban the keeping of pets, especially dogs. I am happy to assure the Committee that we do not. The noble Lord also asked whether honest people would be more likely to abide by the disqualification than people with a natural criminal bent, as he described it. Clearly, first offenders who are punished in this way will in all probability abide by the disqualification, serve whatever short period of time is imposed and return to driving their car when their licence is returned to them. One suspects that some people in the other category may abide by the order while some may not. If they do not, as is frequently said in the courts, they will be defying not only the law of the land, but the order of the court and they are unlikely to attract leniency if they are brought back before the court.
The search must be on to find alternatives to imprisonment where appropriate. This has nothing to do with macho politics, as the noble Lord, Lord Macaulay, suggested. It is an attempt to develop a sentencing regime for reasons which we all support. In the light of the support which the proposals have received from the senior judiciary in Scotland, which has supported the views set out in the letter from the noble and learned Lord, Lord Rodger, and from the police, I hope that noble Lords will be content that the clause should stand part of the Bill.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, I may have misheard him, but one of my difficulties with these provisions is in trying to tie them in with the Road Traffic Act. Did the noble and learned Lord say that a special reason for not applying this particular sanction would be that people in country areas might have to run their children to school? As far as I am aware and I am, as always, subject to correction—indeed, I usually am corrected—does that mean that a special reason for not applying the provision would be that the person concerned was running a taxi service in a rural area of Scotland? What guidelines on how to apply the legislation will be given to sheriffs because, as I understand it, the fact that the offender has to run his child to school in the morning is not a special reason for not applying the provisions of the Road Traffic Act?
Lord Mackay of Drumadoon: No question of special reason arises in connection with this clause. Special reasons are relevant where the court would be required to impose a period of disqualification but for the existence of special reasons. The powers to be given in new Sections 248A and 248B are that the court "may"

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order disqualification. That is a discretion which the court will exercise in the light of all the circumstances, which would include the fact that the accused man lived with his wife and family at the end of a glen or in some remote village to which there was no transport, where the removal of the licence would have the effect which the noble Earl, Lord Mar and Kellie, mentioned. It would still be open to the court to disqualify in such situations, but clearly it would take account of the consequences when considering all the circumstances.
Lord Macaulay of Bragar: Are we not moving into Cloud-cuckoo-land now in connection with the road traffic legislation? Does this mean that someone who has to run his child from the end of a glen to a school, as the noble and learned Lord has put it, will be exempted from the provisions of this Act whereas a long-distance lorry driver who has to go from Inverness to Portsmouth, and perhaps even to the Continent, will be penalised? I really do not understand what the clause is all about. As I have said, that may very well be my fault and I look forward to any explanation that the noble and learned Lord may give.
What we are looking for is consistency in the application of disqualification. This clause seems to go sorely against that consistency. I shall read with interest what the noble and learned Lord has said. I have no doubt that the sheriffs in the north of Scotland will note what he has said about the reasons for disqualifying or not disqualifying someone because I recall a recent case in Aberdeen where that very reason was given, but the sheriff was heavily castigated for the decision that she took.
The Earl of Mar and Kellie: Having heard the arguments, I think that my initial point that the sentence will probably be rarely used in Scotland still holds. Serious consideration must be given to the situation of the unemployed because in their case it will be more difficult to decide exactly what effect such a sentence would have. I hope that social work reports will be asked for before such a sentence is imposed.
Finally, the noble and learned Lord mentioned that there will be pilot projects. I welcome that, but can he say where they will be?
Lord Mackay of Drumadoon: No decisions on that have yet been taken, but I suspect that the pilot schemes will cover areas of differing character. They will not all take place in the same type of area.
I am not sure that I can assist the noble Lord, Lord Macaulay, any further, on the structure of the clause, but I shall be happy to talk to him later on it rather than delay the Committee any further.
Lord Monkswell: The Committee and no doubt the people of Scotland will be pleased to learn that the Government have no intention of bringing in such draconian powers to prohibit the keeping of pets, but I wonder whether the Government can give assurances on another two matters. I refer first to television licences. I hope that the Government will be able to give the assurance that they are not planning to penalise
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people by disqualifying them from having a television. Secondly, I believe that a licence is required by a person who wants to get married. Can the Government give an assurance that they do not intend to deprive people of their spouses as a means of punishment?
4.30 p.m.
Lord Mackay of Drumadoon: I doubt whether either question requires an answer. However, the answer is: no and no.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down—he has already done so—with respect to him, at this stage I am not interested in talking to him about this particular provision. It is the duty of the senior law officer of Scotland to bring before your Lordships' House legislation that can be considered by the whole House. With respect, I have no intention of talking to the noble Lord about it. If he seeks to justify the legislation your Lordships' House is the place in which to do it. I welcome the invitation but reject it.
Lord McCluskey: The problem with this kind of legislation, which sprang from nowhere on 8th October, is that there has been no in-depth consultation. In relation to the matter referred to by the noble and learned Lord the Lord Advocate, the Secretary of State wrote to the Lord Justice General on 6th November. On the following Thursday the Lord Justice General put that matter as one of a number of items on the agenda for the meeting of judges that began at 9.30 and finished at 9.55. In the space of 25 minutes those judges who were free to turn up and turned up were able to address their minds briefly to the question whether there should be a clause of this kind. On the basis of that, the noble and learned Lord the Lord Advocate believes that he has the support of the senior judiciary. I was at that meeting. He had neither my support nor the support of the Lord Justice General at that meeting. This is not a form of consultation that enables the Committee to say with confidence that the legislation has been thought through. It has not been thought through. However, in view of the attitude of other noble Lords in the Committee I do not propose to pursue this matter.
Clause 14, as amended, agreed to.
Clause 15 agreed to.
Clause 16 [Right of appeal]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 112A:
Page 23, line 24, at beginning insert ("subject to subsections (3A) to (3D) below,").
The noble and learned Lord said: In moving Amendment No. 112A I shall speak also to Amendments Nos. 114A to 114E. There was an intention to move an Amendment 114F as well, but I regret that it has not reached the Marshalled List. That amendment would have amended page 24, line 6, of the Bill. That amendment will be tabled at Report stage.
Amendment No. 112A and the others that I have mentioned clarify the Government's intentions regarding a change of witness evidence as the basis for founding an appeal under the "reasonable explanation"

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test introduced by Clause 16. This is an important matter. I hope that the Committee will allow me to set out the Government's thinking in a little detail.
The existing clause is designed to implement the recommendations of the Sutherland Committee which were accepted by the Government, in particular the introduction of the "reasonable explanation" test for new evidence introduced into Sections 106 and 175 of the 1995 Act. Your Lordships may recall that when the Sutherland Report was published the Government announced their rejection of the recommendations of the Sutherland Committee that a change of witness evidence should specifically be allowed as a ground of appeal. That recommendation was dealt with in paragraph 2.8 of the report. We did so because of our very real concerns—which we knew were shared by all parties and many involved in the criminal justice system—about the problem of intimidation of witnesses. That problem can manifest itself both before and after trial. At that time we felt that the precise terms of the Sutherland recommendation on this matter might, if accepted, increase unacceptably the risks that criminals convicted at trial would be tempted to intimidate victims or other witnesses to change the evidence that they had given at trial in an attempt to have convictions overturned.
In the intervening months we have kept this matter under review, particularly in the Crown Office, which has handled many trials and appeals over that period. Having given the matter further thought, we have concluded that it is possible to make specific statutory provisions, including adequate safeguards, to allow a change of witness story to found an appeal in a deserving case. We must be careful, however, to ensure that we do not create a situation in which someone can found an appeal simply by pressurising a witness to change his story. These amendments have been drafted with these policy aims in mind.
The amendments describe the limited circumstances in which a change of witness evidence can be the basis of an appeal. It requires that something more than just a change of story by the witness and a reasonable explanation coming from the witness alone will be sufficient. It thus reflects the principle set out in cases such as Mitchell and Brodie—both of which are referred to in the Sutherland Committee report—to the effect that a mere change of story by a witness will not be sufficient to support the contention that there has been a miscarriage of justice.
In an appeal in which it is contended on behalf of the appellant that the alleged miscarriage of justice arises because of the existence of evidence from a witness who gave evidence at the original trial—evidence that is different from or additional to the evidence which that witness gave at the trial, and for that reason was not heard at the trial—in such a situation the following safeguards will apply. The reasonable explanation as to why the trial court never heard the evidence that the appeal court is now being invited to take into account must be supported by evidence from an independent witness; that is, a witness separate from the witness who gave evidence at the trial. The evidence from that
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independent witness will also be required to be additional to any evidence given at the trial. The appeal court will be required to decide whether it accepts the evidence of the independent witness as credible and reliable. That will be a duty incumbent upon the appeal court judges.
We believe that these safeguards will contain to an acceptable extent the risk of witnesses being induced by threats or otherwise to give evidence that is designed to fit in with evidence already given in public at the original trial. We consider that these safeguards will seek to rule out undeserving cases while allowing genuine miscarriages of justice to be dealt with. I ask the Committee to support this and the following amendments.
Lord McCluskey: The noble and learned Lord will not be surprised to learn that I support these amendments. I have always supported flexibility in relation to this matter. I express only one regret, to which I should like the Government to give serious thought. When the noble Lord, Lord Renton, with the assistance of others, wrote a report on legislation some years ago he received evidence from the Lord Justice Clerk, Lord Wheatley, and the then Lord President, the noble and learned Lord, Lord Emslie, about the character of Scottish legislation. In essence their evidence was that instead of providing detailed statutory formulations of tests, exceptions, and exceptions to exceptions the proper course was simply to trust the judges and give them a general power to except if the justice of the case appeared to them to require it. I should have thought that a formulation of that character could have been devised to replace the rather complicated provision that this clause has now become. I hope that the noble and learned Lord will bear that in mind. If there is time for this Bill to pass into law there may still be time to make that kind of amendment.
Lord Macaulay of Bragar: Appeals have always been a very difficult area of the administration of justice. I appreciate that what is sought to be done by way of these amendments is to arrive at a formula that prevents a miscarriage of justice.
People often say that we do not have miscarriages of justice in Scotland. That is not quite true. As the noble and learned Lord the Lord Advocate will know, there is at least one solicitor in Glasgow who has two pardons on his wall. Of course, the cynical Scots say, "He cannot be all that bright a lawyer if he needs two pardons at the end of an appeals process", but that is another matter.
Perhaps I may declare an interest because I was involved in the Glasgow ice-cream war case, which is presently subject to appeal. I appeared for Mr. T. C. Campbell, so I shall not go into the details of the case. I no longer have any instructions on his behalf because, quite properly, he has gone to someone else.
The more we try to find a solution to miscarriages of justice the more convoluted the law becomes. While accepting that the amendments are well designed, with good social and legal reasons behind them, perhaps a

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decent review of the legal system in Scotland might enable us to put forward a better solution rather than piecemeal legislation.
There is one issue which disturbs me more than somewhat. It is for that reason that I mentioned the T. C. Campbell case. I refer to page 3 of the Marshalled List of amendments. Subsection (5BC) of Amendment No. 114E states that,
"'independent evidence' means evidence which was not heard at the original proceedings; is from a source independent of the person referred to in subsection (5BB) above".
I am not sure what that means because in the trial to which I referred a prime witness changed his story. He gave his story to the jury; it was rejected. He has now given his account to the authorities and the defendant concerned has been released on bail pending appeal.
There is no definition of "a source independent". What happens if no one heard anything of what went on? How does one define "a source independent" whose evidence was not heard at the original proceedings? I do not understand what the subsection means. On a constructive, rather than on any other, basis, I suggest that the draftsmen should re-examine the subsection to see whether it makes any sense in the practicalities of life in court.
The noble and learned Lord the Lord Advocate may believe that I am talking nonsense. I am not, because the matter is serious. If this provision is to be the core of an appeal it must be spelt out properly within the legislation. For example, would a person who is a relative of a witness be looked upon as "a source independent"? Would a work colleague be "a source independent" if during the tea break he heard someone saying, "I told a lot of rubbish at the High Court last week and I got Joe Bloggs done"? Would he be "a source independent" if he were then led as a potential witness before the Court of Appeal so that it could decide that the case should be reviewed?
As I pass out of the legal sphere, I am coming gradually to the view that matters are becoming far too complicated and that we should return to a simple system of law in which we can send a case back to a jury to decide what it is all about rather than leaving it to the judges. In saying that, I appreciate that I do not fall in line with the noble and learned Lord, Lord McCluskey. However, my view is that the system is becoming far too convoluted. We should have a simple rather than a difficult system of appeal. If one is going to have justice one must have a simple system of justice which appeals not only to the lawyers but to the people themselves.
4.45 p.m.
Lord Monkswell: I too am a little anxious about the amendment. The crux of it appears to be that new evidence must be supported by some independent person or evidence. Perhaps I may ask the noble and learned Lord the Lord Advocate a hypothetical question. Let us suppose that at the original trial neither prosecution nor defence counsel ask a witness a relevant question in order to bring out the evidence. Let us further suppose that the defendant is convicted, the case goes to appeal and the defendant says to the court, "This is my explanation of what happened. Nobody asked me before what
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happened." That would effectively render not guilty the person who had been found guilty because it would put a completely different light on the case? Are the Government effectively saying in the amendment that unless there was some independent evidence the new evidence could not be heard by the Court of Appeal?
I wonder whether the phrase is likely to be so restricting as to perpetuate miscarriages of justice rather than the opposite, which is why it is tabled. I wonder whether the noble and learned Lord, Lord McCluskey, is right in saying that the judges should have some discretion as to whether evidence that they hear is satisfactory in itself without needing to be corroborated by some independent source.
Lord Mackay of Drumadoon: I am happy to take on board the invitation of the noble and learned Lord, Lord McCluskey, to re-read the Renton Report. I can say from bitter experience that the clause went through a number of drafts before reaching its final form. It did so because we were anxious to implement, so far as we could, the recommendation of the Sutherland Committee that in addition to bringing new evidence before the Appeal Court which was in the nature of a change of testimony—either a change from what was said previously or an addition to that—the reasons for change should be supported by some additional credible and reliable evidence. We have added to the modification a provision that it must be evidence that was not given at the original trial. It has not proved easy, but I believe that we have achieved a satisfactory solution to the problem. However, I shall be happy to look at the detail again to see whether any recasting will make the issue clearer.
A number of questions were raised about what the independent source will be. The short answer is that it is a source independent of the witness who is changing his testimony. It could be a relative or a colleague, but it is important to bear in mind that the independent evidence relates not to the changed testimony but to the reason why the new evidence, whether it be different or additional, was not given at the earlier trial. It would not be proper for me to make any comment about the case mentioned by the noble Lord, Lord Macaulay, because it is currently before the appeal court in Scotland. However, I hope that that answers the question which he posed.
As regards the noble Lord, Lord Monkswell, if the explanation is that the witness was not asked any relevant questions at the time, there would be no problem whatever in proving that because the transcript of the trial would bear it out. If that was a reasonable explanation, finding independent support for it would not be difficult. However, it would be for the appeal court to determine whether that was a reasonable explanation. If defence counsel had deliberately not asked questions because of other information, that matter might fall to be debated when the case came before the appeal court. Therefore, there should be no difficulty in the particular example mentioned by the noble Lord confirming whether or not the witness was questioned.
I am glad that the new amendments have received support. I shall reflect again with the draftsman as to whether the drafting can be improved. But I assure the Committee that a great deal of effort went into setting out

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the amendment in its present form. I am informed that contrary to what I said earlier, in some mysterious manner, Amendment No. 114F will find its way into the Bill, provided that the Committee is minded to support the other amendments.
Lord Hope of Craighead: Before the noble and learned Lord sits down, perhaps I may ask whether it is intended that the amendment should deal with the problem created by amnesia. That may have a bearing on the wording which has been selected. The noble and learned Lord may recall a case which came before the criminal appeal court not many years ago when the issue was whether somebody who claimed not to remember the circumstances of a crime was entitled to give his version again of the crime. That met with a rejection in the appeal court. It would be satisfactory if this amendment dealt with that problem so that the kind of independent explanation covered would be one where there was some evidence, perhaps medical evidence, to suggest that the offence involved was of a nature which would create the amnesia and that would explain why the witness could not give the explanation at the trial.
Lord Mackay of Drumadoon: I am tempted to say that I have forgotten what my instructions are on that point. The noble and learned Lord is correct, provided that there were independent evidence—and I presume medical evidence—which in some way persuaded the appeal court that it was a genuine case of amnesia. However, the important point is that it is for the appeal court to be satisfied as to the reasonable explanation. If it were medical evidence, that would not be a problem but, having listened to the evidence, the court must be satisfied that there is a reasonable explanation for the change of, or additional, evidence which is now proffered.
We believe that to be an important part of the amendment. It is not a question of leaving the matter to a jury on a retrial to work out whether or not the explanation is valid or to take the view that it sounds like a reasonable explanation and give it the benefit of the doubt. The court must be satisfied on the evidence before it that the independent evidence is credible and reliable and supports the explanation which is tendered. I should have thought that amnesia would be covered in any genuine case, rather than the type of case which we normally encounter in the criminal courts.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 113:
Page 23, line 29, leave out ("only").
The noble and learned Lord said: I can be very brief on this amendment. I seek to know what the word "only" is doing in line 29. It is a slightly technical point. I am not sure what is its function. I cannot think that it is necessary. I draw attention to it because Members of the Committee may recall that in 1964, the House of Lords Judicial Committee discovered that the word "only" meant something which it had not been thought to mean for the previous half a century. I should hate to think that we have to wait another half a century to find out what the word
40
means in this context. I cannot think that it is necessary and I ask the noble and learned Lord the Lord Advocate to explain why it is there. I beg to move.
Lord Macaulay of Bragar: Amendment No. 114 amends Clause 16. The amendment seeks to provide a definition as to what constitutes a reasonable explanation of why evidence was not adduced at the original trial. I do not propose to go into the minutiae of the amendment, although information supplied to me suggests that the noble and learned Lord, Lord McCluskey, in his book on criminal appeals, may have made some reference to it in passing.
Lord Mackay of Drumadoon: I must confess that I do not recall the case in 1964 to which the noble and learned Lord refers. But the purpose of having the word "only" is to make it clear that a reasonable explanation is required in every case and that it is not just an instance of situations where an appeal would be allowed.
If the noble and learned Lord wishes to explain the case to me later, I shall be happy to talk to him about it. The recommendation of the Sutherland Report was quite clear; namely, that it was only where there was a reasonable explanation as to why evidence was not heard that such a route to a successful appeal based on a miscarriage of justice should be allowed. That is why the provision exists. There must be a reasonable explanation why the court did not hear the evidence referred to in subsection (3)(a).
Lord McCluskey: The noble and learned Lord the Lord Advocate betrays his youth if he does not remember Rookes v. Barnard in 1964. It caused a considerable sensation in relation to the interpretation of the Trade Disputes Act 1906. When the noble and learned Lord reconsiders the drafting, that matter will arise because the word "only" can have an extremely restrictive—and unintended—effect. It is that matter to which I wish to draw attention. I do not wish to pursue the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 114A to 114E:
Page 23, line 31, after ("above") insert ("or, as the case may be, (3C) below").
Page 23, line 35. at end insert—
("(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence—
(a) which is—

(i) from a person; or

(ii) of a statement (within the meaning of section 259(1) of this Act) by a person.

(b) who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

41
(3D) For the purposes of subsection (3C) above, "independent evidence" means evidence which—

(a) was not heard at the original proceedings;

(b) is from a source independent of the person referred to in subsection (3C) above; and

(c) is accepted by the court as being credible and reliable.").

Page 23, line 41, after ("based") insert (", subject to subsections (5A) to (5BC) below,").
Page 24, line 1, after ("above") insert (" or, as the case may be, (5BC) below").
Page 24, line 5, at end insert—
("(5BB) Without prejudice to subsection (5A) above, where evidence such as is mentioned in paragraph (a) of subsection (5) above is evidence—
(a) which is—

(i) from a person; or

(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,

who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(5BC) For the purposes of subsection (5BB) above, "independent evidence" means evidence which—

(a) was not heard at the original proceedings;

(b) is from a source independent of the person referred to in subsection (5BB) above; and

(c) is accepted by the court as being credible and reliable.").

On Question, amendments agreed to.
Clause 16, as amended, agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 115:
After Clause 16, insert the following new clause—
LEAVE TO APPEAL: EXCEPTIONS
(" . In section 106 of the 1995 Act (right of appeal on solemn proceedings), after subsection (9) insert the following new subsection—
"(10) Notwithstanding any other provision in this Act, leave to appeal will not be required—

(a) in any case where the appeal is against a conviction or sentence or both to which section 205A or 205B of this Act applies;

(b) in any case in which the convicted person has been sentenced to imprisonment or detention for a period of five years or more;

(c) in any case in which the convicted person has been sentenced in the Sheriff Court to imprisonment or detention for a period of more than two years.".").

The noble and learned Lord said: Amendment No. 115 seeks to introduce a new clause relating to exceptions to the requirement to obtain leave to appeal. The present position is governed by Part VIII of the Criminal Procedure (Scotland) Act 1995, Sections 106 and 107. The Lord Advocate does not require leave to appeal but the convicted person requires leave to appeal, whether against conviction, sentence or both. That system has been in operation since September 1995, having been introduced by the Criminal Justice (Scotland) Act of that year. Under Section 106, leave is
42
required for all appeals against conviction and/or sentence, including deferred sentence, absolute discharge, and so on. Section 107 provides for leave to be considered and either granted or refused by a single judge, with a right of appeal to two or three judges, depending on the character of the appeal. In terms of the Act, you cannot appeal against a life sentence imposed for murder under Section 205(1).
The proposed new clause intends to advance the proposition that leave to appeal should not be required in cases where, because of the new mandatory sentencing provisions of Sections 205A and 205B (which remove judicial discretion), the judge is required to impose a sentence of life in the question of Section 205A or a minimum of seven years in Section 205B of the 1995 Act, as it will be amended, unless there are "exceptional circumstances" justifying a lesser sentence.
I submit that because this is such an important and novel matter and also because the whole concept of "exceptional circumstances" is itself so fraught with difficulties—indeed, as we have seen during the course of our debates and as the present Lord Justice General acknowledged in a letter that I read out to Members of the Committee on a previous occasion—one really ought to have an automatic right of appeal against a sentence of life imprisonment.
I also have in mind the provisions of the European Convention on Human Rights. For a person to be sentenced to imprisonment for life and not to have an automatic right to a public hearing of his appeal, seems to me to be a very considerable departure from our system of open justice. That is the first part of the amendment: paragraph (a) relates to Sections 205A and 205B—that is, the automatic life sentence or the automatic minimum sentence of seven years.
Paragraph (b) of the amendment refers to,
"any case in which the convicted person has been sentenced to imprisonment or detention for a period of five years or more".
To a substantial degree that overlaps with paragraph (a), but does not necessarily always do so. Judges of my seniority have been sitting and considering such matters since September 1995, usually on a weekly basis. Indeed, I have a large number of them to consider tomorrow.
I find the following very difficult; and, indeed, I have often discussed this matter with Lord Ross who was until recently Lord Justice-Clerk. We both experience great difficulty in refusing leave to appeal where a person has been given a substantial period of imprisonment. We find it difficult to say that a person who has been sent to prison for seven or eight years does not have arguable grounds for leave, however heinous the crime. I know that among some judges, though not universally, it almost became the practice to grant leave automatically where the sentence was of that order.
When I made my submissions to the Government in response to the Green Paper and the White Paper in 1996, I suggested that an appropriate cut-off point would be four years. Of course, that period was lifted from Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. However, that Act is

43
about to be repealed, if this Bill goes through, with the support of those who supported that enactment. When the Act is repealed, it may be appropriate to take not a four-year but a five-year period which would reflect the provision in the present Bill giving sheriffs power to impose a sentence of up to five years.
However, when one looks at paragraph (c) of the amendment, it will be seen that that refers to a further overlap; namely,
"any case in which the convicted person has been sentenced in the Sheriff Court to imprisonment or detention for a period of more than two years".
Without going into detail, I should like to remind Members of the Committee that, on a previous occasion, I drew attention to the fact that until 1987 the sheriff had an effective power to send a person to prison for some 16 months—that being the period that the person would serve. Thereafter, the period became slightly longer before the 1993 Act brought it back down again. The present Bill gives the sheriff an effective power to send a person to prison to serve at least four years and two months. In this type of case where the sheriff is imposing a sentence which he could not possibly have imposed until quite recently, I suggest that the right to appeal ought to be automatic.
In my view, that would not dramatically increase the burden of work upon the court—if, indeed, it increased it at all—but it would certainly lighten the burden of work upon the judges who have to grant or refuse leave to appeal. In respect of those three matters, I beg to move.
5 p.m.
The Earl of Mar and Kellie: Where a person has been subjected to a mandatory sentence, which may not be completely appropriate in the light of all the facts, it seems to me, as a legal layman, that such a person should have the automatic right of appeal. Surely that is a necessary safeguard. After all, the two concepts—mandatory sentences and the automatic right of appeal—are, to a degree, made for each other.
Lord Hope of Craighead: Perhaps I may make a few points. I should like, first, to support what my noble and learned friend Lord McCluskey said about matters of practice. Like him, I had to administer the new provisions whereby leave to appeal had to be granted. I happen to take the view that long periods of imprisonment almost invariably justify leave to be given. Therefore, I do not believe that giving effect to the amendment will have a dramatic effect on the work of the Criminal Appeal Court. I say that because the cases covered will very likely be given leave in any event. However, it would at least avoid the risk of some cases falling through the net.
Secondly, although I have not discussed the proposal with my noble and learned friend, there is one omission which might be worth considering. I refer to the mandatory sentence of life imprisonment where a judge makes a recommendation. In Scotland, unlike in England, a recommendation made by the trial judge in a mandatory life case can be subject to appeal. The
44
relevant provision in the 1995 Act escapes me but, if the amendment were to be accepted, it would be sensible to include a specific reference to the provision which allows an accused person to appeal against the recommendation.
Thirdly, I hope and believe that paragraph (b) in the amendment covers the situation of the discretionary life prisoner; that is to say, the person who is sentenced to life imprisonment at the discretion of the trial judge. I should have thought that those cases would almost certainly be granted leave in any event. However, for the sake of completeness, it would be as well to be sure that the language covers them as well as those who are sentenced to fixed periods of imprisonment.
Lord McCluskey: In response to what my noble and learned friend has just said, I can only say, yes, I would be happy if the proposed new clause were extended to allow such matters to be covered. I have never pretended to be a draftsman, but I do my best to draw such points to the attention of the noble and learned Lord and his excellent staff. In a sense, it is a matter of administrative convenience; but it is also a matter of fundamental human rights in relation to such sentences.
Lord Mackay of Drumadoon: I shall deal first with the European Convention on Human Rights. I believe that the noble and learned Lord, Lord McCluskey, will recall that, when the provisions set out in Sections 106 and 107 of the Criminal Justice (Scotland) Act 1995 were debated in this Chamber, the issue of their compatibility with the European convention was also considered. Noble Lords were informed that a number of cases had been presented to the court in Strasbourg which specifically approved of sifting procedures of this nature. Therefore, there can be no doubt that the current law conforms with the convention as would the law, as amended, under the terms of the Bill.
The Government's initial reaction to the amendment was that it was somewhat early to be considering amendment of the relevant legislation in the Act, in view of the fact that the sifting procedure has been operating only since September of 1995. This is, of course, a two-stage procedure. If an appeal is unsuccessful at the first sift, there is an appeal sift, as it were, before it is ultimately rejected, if it is not to go before a sitting of the Appeal Court.
In the light of the fact that the procedure has been running only for 18 months or so, the view was there was not a case to alter it. There is, of course, some concern about having different procedures for different types of appeal. That tends to be the background against which mistakes occur. However, in view of the comments made by the noble and learned Lord, Lord McCluskey, on the basis of his experience, supported—as I understand it—by a contribution from the noble and learned Lord, Lord Hope, I am quite happy to reflect further upon this and discuss it with the court to see whether it would be possible to work out an amendment which was acceptable and which took account of any drafting points that have been raised this afternoon, or which may subsequently come to light. I cannot offer any guarantee on this matter but in the

45
light of the comments made by those who have had practical experience of sifting, rather than being the beneficiaries of sifting, I am happy to think about the matter further.
Lord McCluskey: I welcome the warm tone of the noble and learned Lord in this matter. I am sorry to add a slightly sour comment; namely, I was interested to hear him say it was somewhat early to consider amendment of a system that was introduced in September 1995. In fact, the whole 1993 Act, which was introduced on 1st October 1993, was denounced by the Government two years and 12 days after it came into effect. Is that not also somewhat early?
5.15 p m.
Lord Mackay of Drumadoon: With the greatest of respect to the noble and learned Lord, Lord McCluskey, if he wishes to retain the warm tone which I displayed in responding to his previous amendment, it may not be wise to remind me of a point which he has put to the Committee on more than one occasion and to which I hope I have already replied adequately.
Lord McCluskey: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Automatic sentences: jurisdiction and appeals]:
Lord McCluskey Lord McCluskey moved Amendment No. 116:
Page 24, line 13, leave out subsections (2) and (3).
The noble and learned Lord said: This amendment relates to the provision in Clause 17(2) of the Bill. Clause 17(2) provides that the Lord Advocate will have an appeal against a decision,
"not to impose automatic sentence in certain cases"
on the basis that,
"there were no exceptional circumstances justifying that decision".
The matter of exceptional circumstances is one which we have discussed and looked at from various perspectives. If the noble and learned Lord the Lord Advocate considers that he can say in relation to a particular case, "There are no exceptional circumstances here", it follows that he must at this stage have some idea as regards what exceptional circumstances are. Accordingly it would appear to be appropriate to invite him to tell us what kind of circumstances he would not regard as exceptional.
I find it difficult to see how the noble and learned Lord the Lord Advocate, who takes no part in the matter of sentencing at the stage of sentencing, is able, on some basis as yet undisclosed, to tell us what is meant by exceptional circumstances or, in this case, no exceptional circumstances. I simply ask for further clarification in relation to that. I suspect the answer will be, "I cannot begin to define what exceptional circumstances are but I am sure I shall recognise them if I see them". That is not a satisfactory basis—the
46
elephantine basis—for legislation. I wonder whether the noble and learned Lord the Lord Advocate will defend that basis. I beg to move.
The Deputy Chairman of Committees (Baroness Nicol): If this amendment is agreed to, I cannot call Amendment No. 117.
Lord Mackay of Drumadoon: In defending the use of the term "exceptional circumstances" before the Committee I have made it clear that the approach the Government favour is to leave this matter to the courts to interpret. When that approach falls to be implemented by the courts they will do so in deciding particular cases having had the benefit of a submission from the accused or the appellant's counsel on behalf of the Crown—of that there can be no doubt at all. Even if one is only having appeals against sentence, if a question of law arises it is perfectly open to the Crown to make submissions on that matter—a matter which I had occasion to clarify only last week with the Lord Justice General in connection with a totally separate case.
The evolution of what exceptional circumstances will encompass will take place in cases in which both the accused's legal advisers, his counsel or solicitor-advocate and the Crown will take part in debate. Contrary to what the noble and learned Lord says, the Crown has a limited role to play at this stage of sentencing. The Appeal Court in Scotland has already made it clear on a number of occasions recently that if in addressing the court on sentence the defence counsel seeks to present a statement of the facts contrary to that which the Crown accepts, it is the duty of the Crown to dispute that at the time and seek to have the dispute resolved, if necessary in the appropriate case by the leading of evidence. Therefore the Crown has a role as regards the facts. No doubt, if submissions on the law were being made, to which the Crown objected, the trial judge would be perfectly content to hear the Crown on that matter too. It cannot be to the advantage of the court to proceed on an erroneous submission as to the law, if that was what the defence was putting forward.
If the Crown has the right to appeal at the moment on the basis that sentences are unduly lenient, it seems to me entirely appropriate that as the case law on exceptional circumstances builds up, it also ought to have the opportunity to intervene in particular cases where the trial judge has ignored the decisions of the Appeal Court or the guidance of the Appeal Court as to how that phrase is to be applied when implementing the sentencing proposals set out in Clauses 1 and 2 of the Bill. I believe that on the first day of the Committee stage I gave the Committee the number of cases in which the Crown had exercised that power. It is not a large number. One suspects that this would not occur frequently. However, in my submission it is important that the provision should be there so that the Crown has the right to bring the appropriate cases before the Appeal Court in the same way that the defence will have the right to bring appropriate cases before the Appeal Court. The Appeal Court will not seek to construe exceptional circumstances in a vacuum; it will do that by examining individual cases. No doubt in the light of

47
the case law that is built up, parties on both sides of criminal cases will know when it is appropriate to appeal.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, are we not in danger of indulging in legal semantics here as regards exceptional circumstances? The important people involved in cases appearing before the courts are the victims, the victims' families, the accused, and in some serious cases even the accused's family because everyone suffers as a result of violence. Will the noble and learned Lord equate "exceptional circumstances" with the reasonable man? The law in Britain has caused enough trouble over the definition of "reasonable". In Scotland we are stuck with the definition of what the man on the top of a Clapham omnibus would think reasonable. No one has ever mentioned a bus from Glasgow Corporation or Edinburgh District Council. Perhaps that underlines that we should shy away from such phraseology in statute and let the courts get on with the matter on a fairly simple basis.
Lord Mackay of Drumadoon: With respect to the noble Lord, that is precisely what we seek to do. We are placing the term "exceptional circumstances" on the face of the Bill. It is true that we do not often hear about buses or trams in Scotland. However, I venture to suggest that in England courts are probably sick of hearing about cases of snails in ginger beer bottles, and fishwives who take shock when they espy a tramway in Colinton Road in Edinburgh, and so on. As I think my noble and learned kinsman mentioned earlier, there has been some merit in two-way traffic on legal matters over the Border. I am content that the approach followed is sensible. I look forward to the courts construing the matter in the years ahead.
Baroness Carnegy of Lour: There seems room at this point for the voice of the ordinary woman. If there is query as to whether there should be a sentence of life imprisonment because there are exceptional circumstances, and it seems to the Lord Advocate that the exceptional circumstances do not exist, there is surely a right of appeal. That is precisely what the accused should expect. That seems reasonable. If the provision were not in the Bill, there would be an imbalance.
The Earl of Mar and Kellie: Neither a person on a bus leaving Clackmannan and going in any direction nor Members of the Committee can find the issue about exceptional circumstances easy. We have to balance two conflicting remarks. The noble and learned Lord the Lord Advocate told us that the courts will decide. The noble and learned Lords, Lord McCluskey and Lord Hope, told us that when the judges determine the meaning of these words, they ask what was in the mind of Parliament. I believe that the Committee is still stuck in a quagmire on this.
Lord McCluskey: The noble and learned Lord the Lord Advocate referred to the fact that to a limited extent the prosecutor has a role in sentencing. I remind him of
48
the speech of my noble and learned friend Lord Clyde at Second Reading. I respectfully adopt his submission: that the old idea that the prosecutor was not concerned with sentencing was destroyed when the prosecution was given a right of appeal against unduly lenient sentences. That introduced an entirely new matter from simply informing the courts about the facts or assisting the courts to understand the facts. The noble and learned Lord, Lord Clyde, also said that if this clause stands it should be qualified by a reference to the propriety of the prosecution making a submission to the court on sentence.
Those observations have a bearing in relation to exceptional circumstances. It would be unfair to the sentencing judge if, the Crown having made no submission to him as to whether or not the circumstances were exceptional, and he having decided that they were, he were faced with an appeal by the Lord Advocate on the basis that the circumstances were not exceptional. I submit that we have not had sufficient answer on this point.
Lord Sewel: In a brief and simple way perhaps I may seek clarification or guidance on the clause. We have spent a great deal of time in Committee talking about exceptional circumstances. Throughout that time the noble and learned Lord the Lord Advocate has resolutely declined to give any definition of exceptional circumstances. Yet this clause gives the Lord Advocate the right to appeal on the grounds that there are no exceptional circumstances. My thought processes lead me to this conclusion: that the Lord Advocate is in a position to appeal on the ground that no exceptional circumstances exist when he does not know what the phrase "exceptional circumstances" means. That may be a fault in my thought processes but it seems a reasonable conclusion.
Lord Mackay of Drumadoon: Perhaps I may answer that perfectly understandable question in this way. When the clauses come into force the courts will interpret what "exceptional circumstances" amount to, declaring in a specific case that they do or do not exist. When such cases are decided by the Appeal Court the Lord Advocate of the day will have the benefit of the rulings of the Appeal Court as it sets out the law. He will be perfectly able to answer the question. If in a trial a judge declares that there are exceptional circumstances, and that decision is difficult or impossible to reconcile with what the Appeal Court decided the previous week, it would be open to the Lord Advocate to appeal if he thought it appropriate to do so. He is under no obligation to do so but it would be open for him to do so.
That is what occurs at present. When the Lord Advocate exercises this power, he has regard to what the Appeal Court has said in the past. Sometimes he forms a view which is not shared by the Appeal Court; sometimes it is. That is how I imagine that this power will be exercised in the fullness of time.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, is it not correct that each case depends on its own facts and circumstances? It seems a difficult exercise to apply the exceptional circumstances in one case to another case. There cannot be a league table

49
of exceptional circumstances. I hope that I do not misinterpret what my noble friend Lord Sewel said. His point was that it is an impossible phrase to interpret.
Lord McCluskey: In essence, the reply of the noble and learned Lord the Lord Advocate is that the Lord Advocate does not know what "exceptional circumstances" are, and accordingly, logically, he cannot tell us what no exceptional circumstances are. Therefore he will wait until the Court of Criminal Appeal tells him what they are in a number of cases, and in the light of that he will exercise the power contained in this clause.
It seems extraordinary that the author of the Bill, the person who seeks to pilot it through the House, is unable to tell us the meaning of this phrase and yet is taking a power to exercise on the basis that there are or are not exceptional circumstances once the courts consider the matter in a series of cases. I find it an extraordinary way to legislate. I cannot believe that that is consistent with the notion always applied by judges in interpreting statute of asking what Parliament intended. Currently what Parliament intends is what the Minister intends. If the Minister cannot properly tell us, I do not know how the judges are supposed to interpret the statute. However, we have made the point before.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, I believe it appropriate to correct the matter. I do not wish to go over matters that we debated some days ago.
It is not that the Minister has no idea what the phrase involves or is not capable of working out what it could involve. The approach that the Government believe is correct has been made consistently clear in the Bill, and in the English Bill. Until now I have not heard it suggested that any judge or Appeal Court would find it impossible to construe this term. That is the approach which the Government believe is correct.
The Government have made it clear that they can foresee the term covering the circumstances of the two offences and the circumstances of the offender; but they do not seek on the face of the Bill to define it or limit it in any way. I venture to suggest that that is not an entirely novel approach. I believe that the courts are perfectly capable of implementing it, and that, when they do so, both those who prosecute and those who defend the accused will be happy to abide by the courts' rulings.
Lord McCluskey: We shall plainly get no further on this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 117:
Page 24, line 19, at end insert ("and an appeal against that decision shall preclude any further appeal by the Lord Advocate on any other ground").
The noble Lord said: This is a fairly simple amendment to Clause 17, at line 19 on page 24 of the Bill. Its objective is to ensure that the Lord Advocate is
50
not allowed to appeal on the grounds of a sentence being unduly lenient when no undue circumstances have been found. We feel that the matter should be dealt with very seriously in the light of what was said in relation to the previous amendment. I beg to move.
Lord Mackay of Drumadoon: As I understand the amendment, it is intended to prevent the Lord Advocate from appealing against the trial judge's decision not to impose an automatic sentence on the basis that he or she was satisfied that there were exceptional circumstances; and at the same time, in the event that an appeal was successful, to prevent the Lord Advocate from appealing against the length of the determinate sentence imposed. If that is the effect of the amendment, it would be contrary to the public interest.
If the Lord Advocate is to have an appeal against the failure or the decision to impose an automatic life sentence, as would be allowed under the Bill as presently drafted, there could be no valid reason why, in the event of such an appeal being successful, he could not also appeal against the length of the determinate sentence on the basis that it was unduly lenient.
Were he not able to do so, a situation could arise whereby a very low determinate sentence was imposed which the appeal court and the general public considered to be unduly lenient, and yet it would be one with which the appeal court could not interfere and could not increase. I cannot see any conceivable justification for that. The situation is not likely to occur in many cases, but could happen in some. I hope, therefore, that on further reflection the noble Lord will not pursue the amendment.
Lord Macaulay of Bragar: That just adds confusion upon confusion on the question of exceptional circumstances. We have been "round the houses" about 10 times in our debates on this matter. As I understand it, the Lord Advocate already has the power to appeal against an unduly lenient sentence. We are dealing with a particular issue here; namely, the definition of "exceptional circumstances". I do not accept the explanation given by the noble and learned Lord the Lord Advocate. I wish to seek the view of the Committee.
The Deputy Chairman of Committees (Baroness Turner of Camden): The Question is, That Amendment No. 117 be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Not-Contents" have it.
Amendment negatived.
Clause 17 agreed to.
Clause 18 agreed to.
Clause 19 [Transfer of rights of appeal of deceased person]:
Lord Sewel Lord Sewel had given notice of his intention to move Amendment No. 118:
Page 26, line 37, insert ("; or
(b) upon cause shown, at any time.").
Lord Mackay of Drumadoon: Perhaps I may indicate to the noble Lord that I have considerable sympathy with this amendment. I am happy to take it away with a clear commitment that we will come forward with an amendment which takes account of certain technical drafting concerns.
Lord Sewel: It is nice to hear that sweet reason rules yet again. On that basis I shall not move the amendment.
[Amendment No. 118 not moved.]
Clause 19 agreed to.
Clause 20 [Increased rights of appeal of prosecutor]:
Lord McCluskey Lord McCluskey moved Amendment No. 119:
Page 28, line 6, leave out subsection (2).
The noble and learned Lord said: The current position is that the Lord Advocate can appeal against a sentence pronounced in a solemn case—that is, a case of indictment before a jury—under Section 42 of the 1993 Act. As the Committee will be aware, that provision has been in force for just over three years. A right of summary appeal by the Lord Advocate was not then sought. I am anxious to know why it is sought now.
There are certain disadvantages. First, the cost of considering all these cases will be very high indeed. I do not want to labour the point, but my strong impression is that the Crown Office and the fiscal service are under enormous pressure in terms of resources to meet the burden of responsibility placed upon them by the law and by the crime rates in Scotland. This provision will add a huge burden of work. All fiscals will have to start considering whether or not to report particular cases to the Crown Office as cases in which the new right of appeal might be exercised. It also raises a point to which I referred earlier and which was mentioned in the remarks of my noble and learned friend Lord Clyde at Second Reading. Once again, one has to consider that aspect of the matter. Furthermore, all such cases come without leave. Since leave is not required, they go automatically to the High Court, by which such cases must be considered.
The logic here is the same as was pointed out by the noble and learned Lord, Lord Clyde. If the Lord Advocate is to have a right of appeal to the High Court against every sentence and every disposal, then surely the Advocate Depute and the procurator fiscal in their respective courts ought to have the responsibility of informing the judge, sheriff or magistrate, as the case may be, that the Crown takes the view that the sentence imposed is unduly lenient or inappropriate. If the fiscal believes that, it ought to be intimated to the judge at the time. It would give the judge a chance to reconsider the matter in the light of any representation made to him.
I am not in favour of the notion of the prosecutor departing from this century-old tradition. However, it appears to be the inevitable consequence of taking a right of appeal of this kind. Having regard to the likely burden upon the service and the additional burden upon judges, including sheriffs, whose sentences will be appealed against, I ask the Government to produce some justification for this provision.
My final point is that, in a sense, if a judge is appealed against, he might feel that his amour propre has been somewhat wounded and might resent it. I do not think that High Court judges suffer very badly from that, although one might occasionally have a bad night or a bad weekend if one is appealed against and overturned. I make nothing of that. However, in the sheriff court, where the procurator fiscal appears day after day before the same sheriff, if he repeatedly takes appeals against that sheriff's sentencing it could destroy relationships within the court. That is an additional reason for not extending this power. I beg to move.
Lord Hope of Craighead: Perhaps I may add briefly to the points made by the noble and learned Lord, Lord McCluskey. First, I would mention the position of the court in such cases. As the noble and learned Lord will know, I have had to preside in a number of appeals at the instance of the Lord Advocate in solemn cases. They take up a great deal of time because they raise worrying questions, particularly for the person who has been brought back before the court, possibly to have his sentence increased, having already been sentenced. There is concern about the effect on the work of the Appeal Court.
My other point is that there is constant difficulty, it occurred to me, in bringing the cases before the court quickly enough to intercept the release of the respondent, as he would be, from prison. One of the earliest instances where a solemn case came before the Appeal Court was where the sentence had already been served. Even if the court regards the sentence as unduly lenient, it still has a discretion as to whether to impose a different sentence. Particularly in the lower order summary cases, the risk of sentences having already been served before the Appeal Court can hear them will have been increased. That makes me wonder whether the provision tries to achieve too much of a good thing. No doubt the noble and learned Lord will have consulted with the court as to whether the court can accommodate the problem. But it is a matter of some concern as to whether it is wise to bring the shorter sentences before the court in view of the risk that the hands of the court would be tied anyway by the fact that the sentence had already been served. There is also the possibility of great unfairness to the respondent if he were to be sent back into custody, having already served his sentence.
Lord Mackay of Drumadoon: There may be a misapprehension or misunderstanding on the part of noble and learned Lords who have spoken. The fact is that the right to appeal already exists. It came into force on 1st November last year when the Summary Proceedings (Scotland) Order 1996 brought into force the provisions of Section 175(4) of the Criminal Procedure (Scotland) Act 1995.
In the time from 1st November until today, there has only been one appeal marked. We calculate that some 50,000 summary cases have gone through the courts in that time. So the concern raised by noble and learned Lords about the volume has not been borne out by experience in, admittedly, the first few months of the

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power. When the legislation was brought into force, the court was consulted. I do not recall the detail of what passed between the Minister of State and the Lord Justice General, but the provision was not sprung on the courts by any means. The appropriate order was laid before Parliament and the power already exists.
Clause 20 seeks to restructure the provisions which deal with the Lord Advocate's right of appeal in summary matters.
A number of other points were raised, including the role of the Crown in sentencing, a point raised by the noble and learned Lord, Lord Clyde, on Second Reading. The procurators fiscal had to be given guidance in the light of decisions by the Appeal Court as to when they should draw errors of fact to the attention of the sentencing sheriff. I should have thought that it was in the public interest that they should do so, irrespective of whether they have it in mind to appeal against any sentence that might be imposed.
I doubt whether the idea would find support in many quarters that as soon as the sheriff or the High Court judge has expressed his decision as to what a sentence should be, the Crown should there and then have a right—let alone an obligation—to say to the sentencing judge: "We disagree with that sentence, we want you to review it here and now". Similarly, I doubt whether, if the defence had the right to stand up and invite the trial judge there and then to review the sentence, it would find support in such quarters.
I accept that the provision increases the role of the Crown at that stage, but it is not a provision that cannot be fulfilled. The experience of the past few months has brought nothing like the deluge of cases anticipated in the contributions made.
There is some suggestion that it might create the risk of souring relationships between the procurator fiscal and the sheriff, giving them a succession of bad nights. I doubt that that is likely to occur, but if it does it is just as likely to happen when a defence solicitor appeals a string of sentences or convictions because he disagrees with the sheriff's decisions. I hope that all those involved would behave responsibly in such situations and not harbour grievances from one case to another.
Inevitably, in the sheriff court mistakes are made by sheriffs, whether on conviction or sentence. That is why the Appeal Court exists. Equally, in the High Court appeal provisions are there to give parties the right of appeal to a higher court with power to review. Those systems tend to work well in practice, even if on occasion the judge appealed against does not understand the decision of the Appeal Court. However, one lives with it and moves on to the next case.
I repeat, there may be some misunderstanding on the part of the noble and learned Lord, Lord McCluskey, in bringing the matter forward. I can assure the Committee that the Crown has no intention of using the power on a daily basis, but if there are instances of cases which are clearly unduly lenient or if some error of law has been made in the process of sentencing, it seems right
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that the provision in Clause 20(2) should be on the statute book. On that basis, I hope that the noble and learned Lord will withdraw the amendment.
Lord McCluskey: In the light of the explanation that the noble and learned Lord the Lord Advocate has just given to the Committee, I am happy to withdraw the amendment. In doing so, I acknowledge that I missed the provision contained in Section 175(4). Plainly it cannot have been commented on in detail when the 1995 Bill went through the House. It was not noticed by me then and I am not conscious of any case having yet been before the court. In the light of the explanation, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
On Question, Whether Clause 20 shall stand part of the Bill?
The Earl of Mar and Kellie: The rubric to Clause 20 contains the words:
"Increased rights of appeal of prosecutor".
We must wonder whether the words should be "excessive rights of appeal of prosecutor". My position on the inclusion of the clause is in response to fears that we are moving towards a situation where the prosecutor tries to bid for the sentence, as occurs in some overseas jurisdictions. I do not need to tell the Committee that that is alien to the Scottish criminal justice system. Although the clause does not allow such activity, it seems to be heading in that direction.
I should like to be assured that that is not the case. I hope that the prosecutor will always be restricted to appealing against leniency of sentence after its imposition and that that should be a limited right in itself. Listening to the debate on the last two or three amendments, I feel that there is a danger of too much power being transferred to the Lord Advocate in that respect. He needs sufficient power, but not excessive power.
Lord Mackay of Drumadoon: I hope that I can respond to the point shortly. I can assure the Committee that there is no wish by the Crown to bid for sentence, nor is there any wish by the Government to give the Crown the power to bid for sentence. That is not what the clause is about. It concerns exercising rights of appeal after sentence has been imposed, subject to the point that I mentioned earlier that if, for whatever reason, the defence places a factual basis for the plea in mitigation before the court with which the Crown does not agree it is incumbent on the Crown to draw the point to the court's attention before it passes to sentence and to have the matter resolved. Were the Crown not to do so, when the matter comes before the Appeal Court that court would require to decide it on the basis that the defence's narration of the facts is correct, even if the Crown disputes it. That cannot be in the interests of justice either. When the sentencing court passes sentence, the relevant facts must be a matter of agreement if it is not a question after trial and the trial judge has heard all the facts himself.
Clause 20 agreed to.
Clause 21 [Appeal by prosecutor against hospital orders etc.]:
Lord Macaulay of Bragar Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 120:
Page 29, line 7, at end insert—
("() Where a court determines under section 6(4)(d) above not to remit a patient to prison, the prosecutor may appeal against this determination—

(a) if it appears to him that the determination was inappropriate; or

(b) on a point of law,

and an appeal under this section shall be treated in the same manner as an appeal against sentence under section 108 of this Act."").
The noble Lord said: As this side of the Committee indicated earlier in the debate, we are not out to wreck the Bill. We are anxious to make progress. In the circumstances, I shall defer this amendment, if necessary, to Report stage and do not propose to move it today.
[Amendment No. 120 not moved.]
Clause 21 agreed to.
Clause 22 [Appeals against orders under section 49 of the 1995 Act]:
Lord Sewel Lord Sewel moved Amendment No. 121:
Page 29, line 24, at end insert—
("() In any case where it is competent for a convicted person or a prosecutor to appeal against a decision under section 49 of the 1995 Act to remit a case to the Principal Reporter, the court shall consider whether a curator ad litem should be appointed to safeguard the interests of the child concerned and if so minded shall make such an appointment.").
The noble Lord said: This a very straightforward and simple amendment which I move on the basis that such a provision might be thought helpful at this stage. I beg to move.
Lord Mackay of Drumadoon: This amendment raises an interesting suggestion for safeguarding the welfare of children in the court system. We have considered it carefully. We are sympathetic to what lies behind the amendment but are not persuaded that it would be the correct way forward.
Throughout criminal proceedings, the interests of any child ought to be governed and covered by the child receiving appropriate legal advice and support from his legal representatives who, in the discharge of their professional responsibilities, will require to be in touch with the child's parents or guardians. I have not been aware of any concern up to now that such appointments would be necessary. Obviously, any lawyer instructed to defend a child finds it a particularly anxious matter and will take guidance and advice from any quarter on the issue of taking proper instructions from the accused person. But the idea of interposing some curator ad litem into the criminal courts is novel and certainly not a proposal that I have heard suggested by anyone who practises in this field.
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Clearly, I am prepared to talk further about the matter and listen to any further suggestions. But as at present advised, we do not believe that it would be a sensible proposal, albeit we entirely sympathise with the view that lies behind it.
Lord Sewel: On the basis of what the noble and learned Lord the Lord Advocate said and some discussion with, it is to be hoped, some progress, I am happy at this stage to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clause 23 agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 122:
After Clause 23, insert the following new clause—
FINALITY OF PROCEEDINGS AND SECRETARY OF STATE'S REFERENCE
(" .—(1) Section 124 of the 1995 Act (finality of proceedings and Secretary of State's reference) shall be amended as follows.
(2) In subsection (2) the words "Subject to subsection (3) below" shall cease to have effect.
(3) Subsections (3), (4) and (5) shall cease to have effect.").
The noble and learned Lord said: This amendment is grouped with a number of other amendments—Amendments Nos. 123 up to and including Amendment No. 127, as the Committee will see from the Marshalled List. They are all designed to achieve the same end.
Right from the beginning I acknowledge that there is a powerful technical objection to moving an amendment of this kind in this Chamber, because implementation of the amendment would appear to involve expenditure not authorised by another place. Accordingly that technical objection may be one which cannot possibly be overcome. On the other hand, of course, the Government would be free to take the course that I suggest should be taken as regards these amendments.
Following cases in England which are well known to the Committee—the Birmingham Six, the Guildford Four, the Cardiff Three, the Bridgwater case, possibly the Hanratty case, Rillington Place, the Craig and Bentley case; I have a list of about 26 such cases—the Government finally conceded that it was necessary to set up a body to be called the Criminal Cases Review Commission. That was conceded by the Government in relation to England and Wales. Accordingly, the Criminal Appeal Act 1995 came into force and it is from the provisions of that Act that I have borrowed—with some modifications—the provisions contained in the proposed new clauses which appear in Amendment No. 123 onwards. Amendment No. 122 simply removes the possibility of the Secretary of State making a reference.
These recommendations, albeit no doubt imperfectly, seek to implement the recommendations of the Sutherland Committee. Before I turn to those recommendations, let me say to the Committee that it is sometimes said that Scotland has escaped the Birmingham Six or Guildford Four type of case. In terms of publicity and drama, that is certainly true. However, I am not persuaded that Scotland is totally free of such cases. We in Scotland sometimes claim that we would not have decisions such as the Birmingham

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Six type of case because we have a law about corroboration. I have written and spoken to the effect that that is nonsense—I shall not weary the Committee with repeating it tonight—and that such cases could have occurred in Scotland. Perhaps I may mention two of the better known cases—the case of Meehan and the case of Preece—which resulted in convictions that were ultimately quashed many years after the event owing to the happy discovery of some new evidence which called the convictions into question.
Those are not the only cases, although we may perhaps be better able to deal with them. Another good example might be the case of Mitchell v. Her Majesty's Advocate, which was reported in 1989. That was a trial at which my noble and learned friend Lord Clyde presided and the noble and learned Lord, Lord Hope, dealt with as one of his first cases in the Criminal Appeal Court. The background to that case is set out in a number of reports in Scotland. I need not go into them in any detail. That was a case in which the trial judge expressed his concern about certain aspects. I myself sat in another trial involved in the same case and felt very strong disquiet about the case which resulted in Mitchell's conviction. Ultimately, it was dealt with, for reasons which are explained in the Opinion of the court, although behind those reasons there was, I feel, a sense of unease among Her Majesty's judges about what had happened in that case.
Although some of those cases have eventually resulted in successful appeals, others have proved less easy to resolve on the basis of the ordinary appeal rules of procedure and evidence. Those familiar with the judgment in the recent Beattie case will appreciate how technical the matter may become.
Against that general background and in the light of the recommendations by the Runciman Committee in England, the Secretary of State and Lord Advocate at that time decided to set up a committee under Sir Stewart Sutherland. It was a most distinguished committee. Apart from Professor Sutherland himself and Lord Ross, the Lord Justice Clerk, there was the Vice-Dean of the Faculty of Advocates, who is now on the Bench, Derek Emslie; sheriff Gordon himself, the leading authority on the written criminal law in Scotland; the Chief Constable of Strathclyde, Sir Leslie Sharp; and Andrew Normand, then the Regional Procurator Fiscal for Glasgow and Strathkelvin—now promoted to the office of Crown Agent.
That distinguished body was appointed in 1994. It set itself the task of reporting fully within a period of two years and in fact did so. The report was published in June 1996 by Her Majesty's Stationery Office. Some of its recommendations in relation to appeals have been adopted in this Bill and I do not propose to dwell upon them. But Chapter 5 of the report looked into the question against the background of cases like the Guildford Four and the Birmingham Six, and the decision in England to set up an independent body.
Option 5 of the options that the committee considered was the option of setting up an independent body with power to defer cases to the appeal court. It was,
"to remove the Secretary of State from the process altogether and to establish a new body, completely independent of the executive, with powers to consider alleged miscarriage of justice cases and to refer deserving cases to the Appeal Court for determination".
The report concludes,
"This is our preferred option and the one that we recommend … This is, of course, the model recommended by the Royal Commission on Criminal Justice, legislated for in the Criminal Appeal Act 1995".
That is the reason I put this matter forward. In relation to specific points of detail, the Committee will see on page 5 of the Marshalled List that, in the first of the new clauses, the body has a name. The number of members being not fewer than five comes from the Sutherland Committee Report, and subsection (4) says,
"The members of the Commission shall be appointed by Her Majesty on the recommendation of the Prime Minister, after consultation with the Lord Justice General".
The Lord Justice General should have an input into these matters. Other matters in relation to numbers and so forth are adaptations of the English model in the 1995 Act. The clause introduced by Amendment No. 125 echoes a provision in the English Act allowing the commission to require the appointment of an investigating officer. The clause introduced by Amendment No. 126 envisages the commission investigating matters if the High Court gives a direction under this Act, as it will be. I should indicate that the final matter introduced by Amendment No. 127 is a new clause giving the court certain powers.
I am conscious of the fact that when one looks at the Criminal Appeal Act 1995, provisions there are rather more complicated. As I have said on a number of occasions, it is not my intention to try to do the draftsman's job; I merely want to indicate what ought to be done and invite the Government to adopt the proposal. It is not my proposal, though I supported it. As can be seen from the report, I gave evidence both in writing and orally to that committee and it had the grace also to refer to my book, Criminal Appeals, in deciding the matter.
In relation to the matter of cost, the report reveals that the total cost may be of the order of £450,000 or, on an annual basis, £300,000. I remind the Committee that the cost of keeping a person in prison is around £30,000 a year—or close to that—and, accordingly, for the cost of keeping 15 people in prison for a year, we could set up that body. The cost therefore is quite modest and no doubt the Government will bear that in mind.
For reasons I have yet to understand, the Secretary of State—on the date that he announced the recommendations of the Sutherland Committee—announced that he was rejecting its principal recommendation; namely, this one. I do not understand why that is so. I do not accept the notion that Scotland is free from miscarriages of justice. I make the general point that the Secretary of State, in whatever jurisdiction, is much too political a person to be involved, by reason of his office, in this type of case.
One can think, south of the Border, of cases in which the public take an immense interest—for example, Myra Hindley and Jamie Bulger—and such cases arise on both sides of the Border. They should not be in the political arena at all and that is why I suggest the Government adopt the proposal recommended unanimously by the members of the Sutherland Committee. I beg to move.
6 p.m.
Lord Mackay of Drumadoon: When the Government received the report prepared by Sir Stewart Sutherland and his colleagues, they announced to the Scottish Grand Committee of another place how they reacted to it. They made clear that the proposal for setting up a review commission was the major proposal they were not prepared to accept. At that stage, as I indicated earlier, the Government rejected one of the proposals in relation to the appeals criteria and we dealt with a change of position on that matter earlier this afternoon.
One of the reasons the Government took the view they did was that the view the committee recorded in paragraph 5.27 of its report was that criticisms of the present procedure for dealing with petitions to the Secretary of State by prisoners who wished to have their cases referred back to the court were not universally endorsed by all who gave evidence to the Sutherland Committee. The committee recorded that,
"there was a strong body of opinion that there was no need for change to the current arrangements in Scotland".
It set out a number of arguments which had been advanced in favour of the status quo, including the absence of high profile cases of the nature referred to by the noble and learned Lord, Lord McCluskey. It referred to the position in relation to co-operation, the role of the Lord Advocate, Crown Counsel and procurators fiscal in the public interest and the specific relationships between the procurator fiscal and the police as being significantly different in Scotland.
Another argument advanced in favour of the status quo is the reverse of one of the arguments mentioned by the noble and learned Lord; namely, that the involvement of Ministers in the process ensured full accountability through the parliamentary process. That clearly indicates that, while a number of people undoubtedly share the view expressed by the noble and learned Lord, Lord McCluskey, that a Secretary of State should have no role to play in such proceedings, a significant body of other people take the entirely opposite point of view.
The committee also recorded that,
"There was no hard evidence that the present system was failing, indeed there was evidence that it worked well on the whole. The system should not be changed and possibly weakened simply because of a limited problem of public perception".
It went on to record arguments in favour of the status quo; that,
"The main source of dissatisfaction stemmed not from the machinery for considering alleged miscarriages of justice but from the restrictiveness nature of the appeals criteria".
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The Government's reading of the report was much the same as that set out by the committee; that is, that,
"the arguments for and against change seemed fairly evenly balanced".
That is clear from paragraph 5.28 of the report. Therefore the Government took the view that the terms of the report did not demonstrate an overwhelming pressure or compelling case for fundamentally changing our machinery for dealing with that type of case at the present time. On the contrary, the Government took the view that the committee's main concerns were with the appeal criteria, and those have been dramatically altered by the provisions of the Bill, as we discussed earlier this afternoon.
The Government's view was shared, as I understand it, by the noble and learned Lord, Lord Hope of Craighead, when the Bill received its Second Reading in your Lordships' House. We take comfort from that that the way forward we suggest is the correct one. It is to amend the appeal criteria and see whether, in the light of that, there continues to be any concern at all about the system for handling appeals in Scotland. We believe that there will not be. We also believe very firmly that if there is, and if there are individual cases for which there is a case for referral back to the appeal court, that should be done by the Secretary of State, who has a separate division in the Scottish Office dealing with alleged miscarriages of justice, and that he should be politically accountable to Parliament if, for any reason, a case is not referred back.
Such cases in Scotland are not frequent but they occur from time to time. The noble Lord, Lord Macaulay, mentioned one of them this afternoon. There are, as I understand it, currently two before the appeal court waiting to be heard. In those circumstances, while accepting that there are arguments for a review body or commission of the nature covered by the amendments, the Government are not persuaded that the arguments are compelling and that we should change in the way the English have decided to change. With that explanation, which the noble and learned Lord will understand but possibly not entirely agree with, I hope he will accept that at this stage there is no case for pressing on with the amendments.
I should say in conclusion that I do not seek to oppose the amendments on the technical ground that he mentioned because if it were the will of the Committee or of your Lordships' House to change the law, the Government would not stand in the way. The cost was mentioned. It is clearly not a huge sum of money. I do not use the cost as a reason for objecting to a commission. The reasons are that we consider that amended, as the appeal criteria will be, that is the way forward at the moment.
Lord McCluskey: I hope that those Members of the Committee who are interested in the administration of justice will take the opportunity to read Chapter 5 of the Sutherland Committee's report. The Lord Advocate has quoted some of the arguments against the proposal but the arguments for the proposal are set out fully in the report. I would simply refer to two of them, although there are others.

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One of them is in amplification of the point I have already made; namely, that it is constitutionally inappropriate for the Secretary of State, a member of the executive, to play any part in the process, and in particular to exercise what amounts to a quasi-judicial role in such a process. The argument is summarised as follows:
"In particular concerns were raised about the Ability of a Government Minister to maintain a detached position in the face of what can be high profile and semi-political campaigns in particular cases".
That was one of the arguments. I do not understand why it should be that the judgment in England is that the Secretary of State should withdraw from the process and that an independent body should be set up but that the Secretary of State for Scotland should continue with the role. I have experience of the operation of this and can endorse one of the other points that was made. That was in the following terms:
"While there was little specific criticism of the current arrangements it was deemed inappropriate that those agencies which had secured the original conviction were also responsible for investigating alleged miscarriages of justice in relation to that conviction".
The most striking case of all is the case of Meehan. I know it extremely well because I was part of the prosecution team. I was very unhappy about aspects of that case. I have not made my unhappiness secret. I gave evidence about it both to the Hunter Committee on the Meehan case and also, I think I am correct in saying, before Sutherland. The case was not one of which the Crown Office can be proud—the prosecution of Meehan and the attempts that were made to block the advancement of his case. In due course, Meehan was released, but long before he was released the Secretary of State was approached and decided to investigate the matter. What did he do? He came to the Crown Office and asked the Crown Agent to investigate the matter. The Crown Agent, who had been heavily involved in the original prosecution, passed the matter to the Deputy Crown Agent, who was also heavily involved in the original prosecution. The investigation went on for quite a long time. In other words, the Secretary of State had no independent investigative powers at all. Of course the Crown Agent had very little in the way of independent investigative powers. So what did he do? He called in the police. The essence of the case of Meehan was that the police had fiddled the evidence, so the police then investigated themselves. Fortunately, owing to circumstances which are well known to those who are familiar with the Meehan case, eventually, someone having died, his solicitor was able to come forward and say, "Before he died, this man put me in possession of information which plainly shows that Meehan was not guilty." Accordingly, two fresh policemen were brought in, quickly discovered that that was so, and Meehan was able to be released.
The whole history of the Meehan case is one that indicates with great clarity the imperfections of the existing system. I agree that the Bill improves the appeal criteria, but it does not solve the underlying problem which is mentioned as one of the arguments; namely, that it is inappropriate that those agencies, whether the
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Crown Office or the police, that had secured the original conviction are also responsible for investigating the alleged miscarriage of justice.
It is in that same context that the report noted the argument that the current consideration of cases by the department was not rigorous, transparent or thorough enough. Of course there are arguments both ways, and the committee fairly set them forth. But the committee, which was a most distinguished committee, with prosecutors, policemen, a judge—in fact two judges as it turns out now—and others involved, some of the most knowledgeable people in Scotland on the question of criminal justice, unanimously recommended that this should be done. It is accordingly extremely disappointing to discover that the Government are not prepared to accept it. I hope that in future the matter will be considered yet again. In the meantime, I beg leave to withdraw the amendment. I shall not move Amendments Nos. 123 to 127.
Amendment, by leave, withdrawn.
[Amendments Nos. 123 to 127 not moved.]
6.15 p.m.
Lord McCloskey Lord McCloskey moved Amendment No. 128:
After Clause 23, insert the following new clause—
PREVENTION OF DELAY IN TRIALS
(" .—(1) Section 65 (prevention of delay in trials) of the 1995 Act shall be amended as follows.
(2) In subsection (1), the words from "forthwith" to the end of the subsection shall cease to have effect.").
The noble and learned Lord said: This amendment can be dealt with very briefly. In 1996 a court of five judges, which is the High Court of justiciary sitting in its full capacity, considered whether or not certain decisions taken earlier by courts of three judges were correct and finally decided to overrule those decisions. The five judge case was called Gardner v. Lees. Putting the matter shortly, the Bench of five judges unanimously declared that accused persons had a right, which I myself described as being of a constitutional character, not to be prosecuted if, having been charged on petition with a certain type of offence, the prosecution was not brought to a conclusion within 12 months.
We in Scotland are very proud of the fact that we have certain time limits on prosecutions. The most famous one is the 110-day rule. One cannot be detained in prison awaiting trial for more than 110 days. One must be brought to trial within that period. There are possible exceptions but they are very rarely encountered in practice. We took a great step forward in 1980 when we introduced the 12-month rule. A person charged with a serious offence on petition had to be brought to trial within 12 months of the charge. That person would usually be at liberty. The case of Gardner v. Lees decided, broadly speaking, that if he was not brought to trial within that period of 12 months he could not be brought to trial before a summary court.
That was the position taken by the court in January or February 1996. On 25th April 1996 the Minister responsible wrote to the Lord Justice General saying that

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he proposed to have the law amended in order to reverse the decision in the case of Gardner v. Lees. It was to be done not by means of Scottish legislation, but put into a new clause in the English Criminal Procedure and Investigations Bill. It was called at the time the paper was sent to the Minister the Criminal Procedure and "Investments" Bill.
The then Lord Justice General wrote in response,
"I appreciate why you may feel it appropriate to introduce this change in the legislation. On the other hand I think that some people may regard this as a more substantial and more contentious point on which wider consultation would have been appropriate. For this reason I would prefer not to be thought to be offering any support for it, at least for the time being".
So there was no support offered by the then Lord Justice General and no other judge was informed or consulted about the matter.
I can inform the Committee that we did not know the legislation was proposed; we did not know that it had been enacted and I discovered it only from an article in a learned journal and brought it to the attention of Scottish judges at the weekly meeting. They thus discovered that effectively behind their backs the legislature had altered the constitutional right, as I called it, that had been recognised in Gardner v. Lees. That is not a proper way to legislate in relation to criminal justice in Scotland. I shall avoid using epithets that might give offence, but it was not a proper way to legislate. I suggest that the proper course is to repeal that legislation in the way that I now propose. If the Government wish to bring it forward on some other occasion, let us do it and then look at the constitutional and other implications. I beg to move.
Lord Mackay of Drumadoon: The noble and learned Lord's amendment seeks to reverse the law from what came into effect after the Criminal Procedure and Investigations Act became the law of the land. As he correctly indicates, the issue concerns the 12 months' period within which a trial must commence in solemn proceedings. As Members of the Committee know and as we have discussed on a number of occasions, in Scotland accused persons can be tried on a summary complaint before a sheriff who decides questions of guilt or innocence or before a district court that does likewise. Alternatively, a person can be tried before a jury either in the sheriff court or in the High Court.
If the accused sets out on a procedure which will take him to jury trial and is placed in petition, the law of the land is that the trial must commence within 12 months unless the period is extended. But on occasions accused persons set out on the petition route and have the cases reduced to summary trial which takes place in the sheriff's summary court. Prior to the case of Gardner v. Lees it had been understood for many years in Scotland that such summary trial need not begin before the expiry of the 12 months' limit in the same way as a man is put before the court on summary complaint and his trial need not begin within a 12 months' period.
But the Gardner v. Lees case decided in January 1996 reversed that understanding and held that if either the trial before a jury or the summary trial before a sheriff
64
did not begin within the 12 months' period then no further proceedings were possible unless that period had been extended. That was a significant change to the law as it had been understood by the Crown, the defence and the court for many years. As a result, certain prosecutions fell by the wayside.
It lies within the power of the Crown to arrange for the trial before a jury to begin within 12 months by indicting the accused for trial at a sitting either of the High Court or the sheriff and jury court within the 12 months' period. However, if the charge is reduced to summary complaint the accused is called to plead guilty or not guilty. If he pleads not guilty a diet of trial is set some days or weeks hence. If for any reason the trial cannot proceed on that day the case is adjourned to another date and so on and so forth. It is quite possible that trials cannot get going within the 12 months' period.
The view is also taken that if it is not possible to reduce cases from solemn to summary trial, as we describe it in the Crown Office, and place the matter before the sheriffs summary court in the knowledge that the trial cannot begin after the 12 months' period, that might in some way act as a disincentive to the Crown to reduce the prosecution to the summary level in appropriate cases. Therefore, the Government took the view that an amendment was appropriate.
There was nothing underhand about the way the matter was put before Parliament. The Minister of State wrote to the then Lord Justice General, as the noble and learned Lord, Lord McCluskey, has indicated, and got the reply in the terms mentioned. He also wrote to the Opposition spokesman in another place on Scottish criminal matters, the honourable Member for Dunbarton, John McFall. He wrote to all other Members serving on the relevant standing committee on the Criminal Procedure and Investigations Bill.
The fact of the matter was that there was no opposition to this amendment. The Bill incorporated the change and as a result the law in Scotland was restored to what it was understood to be for many years prior to the case of Gardner v. Lees. The noble and learned Lord's new clause would seek to reverse the position and take us back to the decision in Gardner v. Lees. I hope the Committee will be satisfied that the Government have dealt with this matter in a responsible manner and that it will also be satisfied that there is good reason why the law should remain as it is. On that understanding and with that explanation, I hope that the noble and learned Lord will not press his amendment.
Lord McCluskey: I do not propose to pursue this matter any further. I do not dispute the right of the Government to come forward with legislation of this kind, but it is the method of doing it that I deplore. The Government knew by April of this year that they intended to introduce in the autumn the Bill now before the House; namely, the Crime and Punishment (Scotland) Bill. There was no reason whatever why that provision should not have been put into the present Bill. It was put into the English Bill, which escaped the notice of almost everyone. No consultation whatever preceded the Crown's decision to change that right. If notice was given to certain people it was not given, for

65
example, in this House where the matter was just moved without any explanation. I regret very much that the Government chose to legislate in that way, whatever the merits of the particular cause. However, in the circumstances and at this hour I do not propose to say more about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Sewel Lord Sewel moved Amendment No. 128A:
After Clause 23, insert the following new clause—
APPEALS BY THE LORD ADVOCATE: SIFTING
(" . After section 108A of the 1995 Act, there shall be inserted the following section—
"Appeals by the Lord Advocate: sifting.
.—(1) The decision whether to grant leave to appeal for the purposes of section 108 and 108A of this Act shall be made by a Judge of the High Court who shall—

(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

(b) in any other case, refuse leave to appeal and give reasons in writing for the refusal.

(2) The documents referred to in subsection (1) above are—
(a) the note of appeal lodged under section 110(1)(b) of this Act which shall—

(i) identify the proceedings;

(ii) contain a full statement of all grounds of appeals; and

(iii) be in the form prescribed in an Act of Adjournal;

(b) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and
(c) where, by virtue of section 94(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.
(3) Where leave to appeal is refused under subsection (1) above the Lord Advocate may, within 14 days of intimation under subsection (6) below, apply to the High Court for leave to appeal.
(4) In deciding an application under subsection (3) above the High Court shall

(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and

(b) in any other case, refuse leave to appeal and give reasons in writing for the refusal.

(5) Consideration whether to grant leave to appeal under subsection (1) or (4) above shall take place in chambers without the parties being present.
(6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of those provisions, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
(7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the High Court on cause shown, be competent for the Lord Advocate to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
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(8) Any application by the Lord Advocate for the leave of the High Court under subsection (7) above—

(a) shall he made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall not less than seven days before that date, be intimated by the Lord Advocate to the accused and his solicitor.

(9) The Clerk of Justiciary shall forthwith intimate—

(a) a decision under subsection (1) or (4) above; and

(b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the Lord Advocate, the Crown Agent, the accused or his solicitor.".").
The noble Lord said: This may appear to be a rather long and wordy amendment, but I hope that I can be brief in speaking to it. Its effect is simple and straightforward. It seeks to introduce a sifting process into appeals by the Lord Advocate. As the Committee will be aware, under the provisions of Section 107 of the Criminal Procedure (Scotland) Act 1995, an appeal by a convicted person is subject to a sifting process by a High Court judge. Simply on the argument of balance, this amendment seeks to introduce an analogous procedure for appeals by the Crown. Essentially, the decision on whether to grant leave to appeal for the purposes of this Act would be made by a judge of the High Court. The process is detailed in the amendment. Where the judge decides to refuse leave to appeal, the Lord Advocate would have a further right of appeal within 14 days to the High Court.
One of the concerns behind the amendment is that—and I have to say this—appeals by the Lord Advocate on the ground of undue leniency have recently been criticised by the courts. In the case of Her Majesty's Advocate v. Ross 1996, Lord Justice Clerk Ross stated:
"It is to be hoped that the court is never again asked by the Lord Advocate to consider a note of appeal … which is so inaccurate and misleading".
In the case of Her Majesty's Advocate v. McKay 1996, the Lord Justice General, now the noble and learned Lord, Lord Hope, stated:
"The court is entitled to demand from the Lord Advocate and his advisers a high standard of care and accuracy … in the handling of these appeals … in the present case we are bound to say that that high standard … has not been achieved".
In all those circumstances, I think that there is a strong prima facie case that the judgment of the Lord Advocate in seeking to appeal should be subject to the same sort of sifting process as applies to the prosecution. There are legitimate grounds for concern in the recent history of appeals made by the Lord Advocate, but I think that the case can also be made on the grounds quite simply that what is good for the defence ought to be good for the Lord Advocate also. I beg to move.
Lord Hope of Craighead: I do not want to go over old ground with which the noble and learned Lord will be familiar, but I was careful in the case of McKay to say that I was not suggesting that the Lord Advocate should be subjected to the sifting process. I think I recall saying that one of the reasons for taking that view was the confidence which the court reposed in the decisions by the Lord Advocate over whether or not to appeal.

67
The criticism was more on matters of procedure than on whether it was right that the Lord Advocate's decisions should be subject to the sifting process.
As always, it is a question of balance. One point which the Committee may wish to take into account is that the sifting process occupies a certain amount of time. One has only to read through the proposed clause to see that various steps have to be carried out. It slows the process down. In particular, in cases where the Lord Advocate is seeking to have reviewed as unduly lenient a sentence which has been passed on an accused person, there is considerable urgency in bringing the matter before the court without undue delay, as I mentioned earlier, before the sentence has been served.
Therefore, I caution the Committee against accepting this amendment on the ground that it might slow things down to an unsatisfactory extent. I have no doubt that the Crown Office will have taken on board the criticisms which in the early days of the procedure were levelled at the Crown. For my part, I would rather leave the matter on the basis explained in McKay—that these decisions are not lightly taken by the Lord Advocate, that confidence can be left where it resides and that the matter should be brought before the court as quickly as possible in those cases where the Lord Advocate thinks that a view of the court is required.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord, Lord Hope, for that contribution. I do not think that it would be productive for me to go into the two cases to which reference has been made, particularly the case of McKay, which was an appeal abandoned by the Lord Advocate some four months after it had been marked when the report of the trial judge came to hand. The Crown did not insist on the appeal and did not make any submissions on that occasion. It would be unfortunate to go into the detail of what was said then.
As the noble and learned Lord, Lord Hope, made clear, these matters are considered by Law Officers and, in particular, by the Lord Advocate. The procedure that is followed is that a report is obtained from the Advocate Depute who conducted the trial or presented the facts on behalf of the Crown if it is a plea of guilty, or from the procurator fiscal in a sheriff court case. They are considered within the Crown Office by, among others, the appropriate Advocate Depute and the Law Officers. They are not marked lightly. I gave the Committee the figures the other night of how many such cases there had been since the power came into effect. The total was 31, which has now increased to 32 in the light of the appeal which has now been marked.
One is not seeking to compare like with like. In the appeals marked by the Lord Advocate, it requires to appear to the Lord Advocate that the sentence is unduly lenient, as is set out in Section 108, or that some point of law arises. That will be the position of the Lord Advocate in the light of the report that he has been given by the trial depute. It is something
68
which could not conceivably be before the sifting judge. It would be entirely inappropriate for the Lord Advocate to lay before the sifting judge an opinion as to the merits of an appeal in the same way that the opinions of defence counsel come before the second stage of the sift. In the sift, the court has to be concerned with arguable grounds of appeal on an entirely different test from that which the Lord Advocate has to satisfy.
There may have been some difficulties in the early stages and it may be that some of the criticisms about the paperwork were merited. However, as I said earlier—I know that the noble and learned Lord, Lord Hope, will bear this out—these matters are discussed regularly between the Lord Advocate of the day and the Lord Justice General of the day. I do not think that it would be productive to discuss the detail on the Floor of this Committee. With that assurance that these matters are treated seriously and that we are not seeking to compare like with like, I hope that the noble Lord will withdraw his amendment.
Lord Sewel: I have listened to what both noble and learned Lords have said, and particularly to what was said by the noble and learned Lord, Lord Hope. I take fully on board his point about the need to resolve the matter quickly, especially before the sentence has run out and is served. As has been said, this is a question of balance. One must weigh things in the balance in order to decide on which side one comes down. I should have thought that there was enough experience of how the matter of appeals against leniency has gone in the past to persist with the introduction of a sifting mechanism and therefore I seek the opinion of the Committee on this issue.
6.39 p.m.
On Question, Whether the said amendment (No. 128A) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 89.

Division No. 1

CONTENTS

Addington, L.

Grey, E.

Barnett, L.

Harris of Greenwich, L.

Berkeley, L.

Haskel, L

Blackstone, B.

Hilton of Eggardon, B.

Blease, L.

Hughes, L.

Brooks of Tremorfa, L.

Jay of Paddington. B.

Bruce of Donington, L.

Jenkins of Putney, L.

Calverley, L.

Lockwood, B.

Carlisle, E.

Longford, E.

Carmichael of Kelvingrove, L.

Macaulay of Bragar, L.

Carter, L.

McCarthy, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L.

David, B.

Mackie of Benshie, L.

Dormand of Easington, L.

McNair, L.

Falkland, V.

McNally, L.

Farrington of Ribbleton, B.

Mar and Kellie, E. [Teller.]

Gallacher, L.

Merlyn-Rees, L.

Gladwin of Clee,L.

Meston, L.

Gould of Potternewton, B.

Milner of Leeds, L.

Graham of Edmonton, L. [Teller.)

Molloy, L.

Grenfell, L.

Monkswell, L.

69

Morris of Castle Morris, L.

Smith of Gilmorehill, B.

Nicol, B.

Stoddart of Swindon, L.

Peston, L.

Strabolgi, L.

Ramsay of Cartvale, B.

Taylor of Blackburn, L.

Rodgers of Quarry Bank, L

Thomas of Gresford, L.

Sefton of Garston, L.

Thomas of Walliswood, B.

Serota, B.

Tordoff, L.

Sewel, L.

Turner of Camden, B.

Shepherd, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Addison, V.

Long, V.

Ailsa, M.

Lucas, L.

Alexander of Tunis, E.

Lucas of Chilworth, L.

Anelay of St. Johns, B.

Luke, L.

Ashbourne, L.

Lyell, L.

Attlee, E

McConnell, L.

Balfour, E.

Mackay of Ardbrecknish, L.

Beloff, L.

Mackay of Drumadoon, L.

Belstead, L.

Macleod of Borve, B.

Blatch, B.

Marlesford, L.

Brentford, V.

Mersey, V.

Brookes, L.

Miller of Hendon, B.

Byford, B.

Milverton, L.

Carnegy of Lour, B.

Mottistone, L.

Carnock,L.

Mountevans, L.

Charteris of Amisfield, L.

Mowbray and Stourton, L.

Chesham,L. [Teller.]

Munster,E.

Clark of Kempston, L.

Napier and Ettrick, L.

Clyde, L.

Northesk,E.

Courtown,E.

O'Cathain,B.

Cox,B.

Onslow, E.

Cranborne, V. [Lord Privy Seal]

Orr-Ewing, L.

Crickhowell, L.

Park of Monmouth,B.

Crickhowell, L.

Peason of Rannoch, L.

Dean of Harptree,L.

Pender, L.

Denbigh, E.

Platt of Writtle,B.

Dilhorne,V.

Plumb,L.

Dundee, E.

Prentice, L.

Eden of Winton,L.

Rankeillour, L.

Effingham,E.

Rennell,L.

Elliott of Morpeth,L.

Renton,L.

Ferrers,E.

Seccombe,B.

Gardner of Parkes, B.

Sharples, B.

Greenway,L.

Shaw of Northstead, L.

Harlech, L.

Skelmersdale, L.

Hayhoe, L.

Stewartby, L.

Henley, L.

Strathclyde, L. [Teller.]

Hogg, B.

Taylor of Warwick, L.

HolmPatrick, L.

Thomas of Gwydir, L.

Hooper, B.

Trumpington, B.

Hope of Craighead, L.

Vivian, L.

Inglewood, L.

Weatherill, L.

Kimball, L.

Wise, L.

Lauderdale, E.

Wynford, L.

Lindsay, E.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.48 p.m.
Clause 24 [Evidence concerning certain orders]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 129:
Page 30, line 42, leave out ("subsection") and insert ("subsections").
The noble Lord said: I apologise to the Committee for not immediately having my notes to hand. I understood that my noble friend Lord Sewel would
70
move this amendment. I formally move Amendment No. 129 and wait for the Government's response. I beg to move.
The Earl of Mar and Kellie: Although this matter has not been spoken to, I suggest that this amendment is very much within the spirit of a probation order. I justify that comment on the grounds that before a probation order is made the potential probationer has the likely provisions of such an order fully explained to him during the writing of the social work report. The individual goes to court, the probation order is made and he is formally told the conditions of that order. At the third stage while the social worker is serving the order he will ensure that the person concerned fully understands the conditions that have been imposed by the court. On that basis I support the amendment, which seeks to do much the same in the event of an offender breaching one of the conditions of his probation order.
Lord Mackay of Drumadoon: My speaking note says that I am obliged to the noble Lord, Lord Sewel, for his explanation, but perhaps I should not dwell on that. Clearly, it is desirable for some notice to be made available to those who are to be brought before the court. I am sure that Members of the Committee do not require to be reminded that there are existing provisions in the Criminal Procedure (Scotland) Act 1995 which allow that to be done.
I am not convinced that the amendment would be an advantage, in particular when one looks at the detail of Amendment No. 130. It is not entirely clear what "supporting papers" might mean, nor what time limits are to be used to determine whether the supporting papers are sufficient notice or otherwise to the person who has been suspected of being in breach. Clearly, there would be problems in having such general terms on the face of the Bill.
In my submission, the current procedure is satisfactory. It gives adequate notice to the offender that he is in breach of probation. If when he comes before the court there is any dispute about the matter, it will have to be clarified then. The sheriff or the judge could not proceed to deal with the offender unless he was satisfied that there had been a breach. Clearly, that would require some information to be placed before him in open court in order to be satisfied that the offender accepted the acts alleged against him.
The amendments are believed to be unnecessary and, as regards Amendment No. 130, unworkable. I hope that with that explanation the noble Lord will not insist upon the amendment.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for his explanation, which I am sure will be read with interest by those who are directly involved with these matters. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 130A:
Before Clause 25, insert the following new clause—
(" . After section 255 of the 1995 Act there shall be inserted the following section—
"Proof of age
Proof of age.
255A. Where the age of any person is specified in an indictment or a complaint, it shall, unless challenged—
(a) in the case of proceedings on indictment by giving notice of a preliminary objection under paragraph (b) of section 72(1) of this Act or under that paragraph as applied by section 71(2) of this Act; or
(b) in summary proceedings—

(i) by preliminary objection before the plea of the accused is recorded; or

(ii) by objection at such later time as the court may in special circumstances allow,

be held as admitted.".").
The noble and learned Lord said: the purpose of this provision is to avoid the need for the prosecutor to lead evidence of the unchallenged age of any person whose age is specified in an indictment or complaint in criminal proceedings.
I consulted the Lord Justice General for Scotland before I tabled the clause and I am happy to confirm that he is content that the proof of the age of any person whose age is specified in a complaint or indictment should be held to be admitted unless challenged.
The age of victims and complainers and of an accused person may require to be specified in a complaint or indictment. That arises in particular in relation to sexual crimes involving people under the age of 16. Proof of the age is normally achieved by the lodging of the birth certificate coupled with evidence from the witness, his mother, father or other relative. This evidence is very rarely challenged as to substance.
If there is any challenge to be made then, as I have indicated, the new clause enables this to be addressed and the prosecutor would have to read evidence to meet it. This means that the interests of the accused person and the interests of justice are served without the need to lead unnecessary evidence. I beg to move.
Lord McCluskey: I welcome the clause. It is an example of the kind of enactment which could be used more freely in order to shorten trials. The noble and learned Lord the Lord Advocate and perhaps others will be aware that in this regard I have made a number of submissions, on one occasion with the support of the Scottish Law Commission, and we have discussed them on earlier occasions. However, it appears to me that many more facts are capable of being isolated and dealt with in this way so that we proceed to a trial which is about the real issue and not about matters which are not truly in dispute. I welcome this modest step in the right direction.
On Question, amendment agreed to.
Clause 25 [Evidence from certain official documents]:
[Amendments Nos. 130B to 132A not moved.]
Clause 25 agreed to.
Clause 26 [Evidence of vulnerable persons: special provisions]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 132B:
Page 34, leave out lines 8 to 11 and insert—
("(b) any person of or over the age of 16 years—

(i) who is subject to an order made in consequence of a finding of a court in any part of the United Kingdom that he is suffering from mental disorder within the meaning of section 1(2) of the Mental Health (Scotland) Act 1984, section 1(2) of the Mental Health Act 1983, or Article 3(1) of the Mental Health (Northern Ireland) Order 1986 (application of enactment); or

(ii) who is subject to a transfer direction under section 71(1) of the 1984 Act, section 47 of the 1983 Act, or Article 53 of the 1986 Order (transfer directions); or

(iii) who otherwise appears to the court to suffer from significant impairment of intelligence and social functioning.").

The noble and learned Lord said: The amendment falls to be taken with Amendments Nos. 133 and 134 and raises the important issue of vulnerable witnesses. It was my understanding that we would deal with the amendment after the dinner hour. I am not complaining and I am happy to continue, but the amendment will take some time. I hope that all Members of the Committee are aware of that. I am primarily concerned to move Amendment No. 132B standing in my name on the Marshalled List, but for the convenience of the Committee I intend to speak also to Amendments Nos. 133 and 134.
The latter two amendments, while somewhat similar in intention, are in origin and effect rather different. I hope that the Committee will bear with me while I endeavour to assist it in considering this important series of amendments to a clause which attracted considerable debate in another place.
In November 1996, "Frontline Scotland", a television programme produced by and shown on BBC Scotland, highlighted the issue of vulnerable witnesses. Following upon the showing of that television programme, I initiated a consultation exercise designed to seek views about the existing special procedures for taking the evidence of child witnesses to see whether they should be extended to witnesses suffering from various forms of mental impairment.
I did so in the knowledge that expectations would thereby be raised that the Government might be prepared to consider extension to all witnesses who could be shown to be or claim to be suffering from a mental illness. The clause and amendments tabled in my name represent the Government's response after giving very full consideration to all the issues.
I take the view that to go further, as do the amendments tabled by the noble Lord, Lord Macaulay, and the noble and learned Lord, Lord McCluskey, would amount to too great an intrusion into the procedures of our criminal trials in Scotland and to a step which should not be taken at this stage. The basic principle underlying our criminal procedure is, as Members of the

73
Committee will appreciate, that a witness in a criminal trial should give evidence in person in the courtroom, unless that witness's evidence is a matter of agreement.
The reasons are obvious, but perhaps I should restate them. Evidence given by a witness who is personally present in the courtroom visible to everyone, including the accused, is the best method by which that evidence can contribute to an inquiry into the facts. It is the best way in which that evidence can be tested as to its fullness, authenticity and credibility. It is one of the fundamental ways in which our system of justice seeks to ensure that justice is done by ensuring that witnesses who give evidence in a criminal trial, whether they be called for the Crown or for the defence, should be subject to examination-in-chief by the party who calls them, to subsequent cross-examination, if that is wished, and to any re-examination, if that is wished in the event of cross-examination taking place. We believe that any departure from that is justifiable only when it is absolutely clear that it is in the interests of justice to permit it and there are valid reasons for promoting it.
Another principle underlying our system in Scotland is the need for relative speed in dealing with cases, and mention of that was made earlier this evening. I comment on that in the context of these amendments because the effects of the amendments which other Members of the Committee have tabled will be to require the criminal court, before it commences a trial of the accused person, to embark upon an investigation of the mental health of a potential witness.
There may be an argument that that exercise would not necessarily be beneficial to the witness concerned. But it also raises the question of whether witnesses not subject to any form of mental health order should become the subject of almost informal proceedings under the Mental Health Acts in which a view is being taken by a court as to the status of the mental health of the witness and as to whether he might fit within one of the orders when he is in no sense party to the proceedings which are taking place.
Therefore, there are procedural complications in a situation where the witness concerned might not necessarily welcome or co-operate with what is going on. There may also be other complications. We believe that a balance must be struck and the balance is in favour of the approach set out in the amendment in my name, which effectively limits the extension of the vulnerable witness provisions to those as regards which there have been mental health orders of one sort or another.
I believe that the amendments which other Members of the Committee have tabled will extend the category of witness who is able to use the procedures currently available for child witnesses to such an extent that it will leave the system open to widespread increase in its use. As the honourable Member for Greenock and Port Glasgow pointed out on Report in another place, it also leaves the system open to potential abuse. We should not take such risks.
I have explained the position which will apply to the amendment in my name which refers to the provisions of various mental health statutes and as I say, I believe that it strikes an acceptable balance.
I appreciate that there may be some disappointment on the part of other Members of the Committee and those who have asked them to promote alternative amendments. But I hope that the Committee will be persuaded that my amendment goes far enough. On that basis, I beg to move.
7 p.m.
Lord McCluskey: I wonder whether the noble and learned Lord the Lord Advocate will assist me in one regard. Unfortunately, I have omitted to bring Section 1(2) of the Mental Health (Scotland) Act 1984 with me. No doubt the noble and learned Lord has a copy to hand. It reflects the English and Northern Ireland legislation.
My recollection is that that deals with fairly serious mental illness of a kind which includes or is very close to insanity. Does the kind of illness which falls within the meaning of Section 1(2) of the 1984 Act include depressive illnesses which would not result in any form of certification, or nervous illness of that character?
Lord Mackay of Drumadoon: I do not have that section readily to hand. I shall look at it during the dinner hour. My recollection is that it does not.
On Question, amendment agreed to.
The Earl of Courtown: I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee stage begin again not before five minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Flood Prevention and Land Drainage (Scotland) Bill
7.5 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay): My Lords, I beg to move that this Bill be now read a second time.
I am pleased to report to the House that this uncontroversial Bill received generally widespread support in another place as to its principle and its specific provisions. The Government have listened to representations received and have amended and improved the Bill. I hope that today's debate will confirm that sound principles lie behind it.
It may be helpful if I touch briefly on the background to the Government's proposals. There were a number of flood events in Scotland in recent years. Scottish Office Ministers visited a number of the affected areas and discussed with those whose homes and businesses had been flooded the problems they were facing. It was clear that something had to be done to help prevent such people suffering in the way they had.
Existing legislation—the 1961 Flood Prevention (Scotland) Act—provides permissive powers to councils to undertake certain repair and maintenance work to

75
prevent or mitigate flooding of non-agricultural land. Councils are also able to promote flood prevention schemes.
But it was clear that not enough of these types of works were being carried out. The Government therefore decided that existing legislation and responsibilities for flood prevention measures would be reviewed.
The Scottish Office issued a consultation paper in February 1996 which evoked a wide range of responses from councils, other public bodies, businesses and individual members of the public. It was clear from these responses that the issues are complex and the solutions far from straightforward. But following very careful consideration of the options, the Government issued a draft Bill in September of last year for further consultation. None of the comments received on this draft impacted on the principle of the Bill now before the House; and that is also the case following the debate and scrutiny of it in another place.
I should like now to turn briefly to the provisions in the Bill. It would place limited duties on local authorities to undertake certain flood prevention activities. Those are: to assess watercourses in their area to find out if they are likely to cause flooding of non-agricultural land; to exercise their existing power to maintain watercourses which appear to be likely to cause flooding, and where exercising that power would substantially reduce the likelihood of such flooding; and to prepare and publish reports of the measures they have taken and the measures they think they should take to prevent or mitigate such flooding. Those reports should also specify all occurrences of such flooding.
We consider that those provisions, while relatively modest, would go a long way to help alleviate flooding events. By assessing the watercourses in their areas for the likelihood of flooding, and by taking prompt action to remove debris and to undertake general maintenance and repair work, councils would reduce flooding risk. This, in turn, would reduce the need to spend much larger sums in dealing with flood damage after the event.
I should also point out that this Bill should not be seen in isolation. The Government have already taken steps to ensure that flood risk is properly taken into account in the planning process through the issue of National Planning Policy Guideline 7—NPPG7. This provides guidance to councils, developers and the public on a wide range of planning and other matters. The intention is that this will ensure that decisions on existing and future development take full account of flood risk.
NPPG7 quite correctly recognises that councils should take the lead role in co-ordinating measures and responses to flooding, because they are in the best position to address local concerns and priorities. Also, with local government reorganisation, the role of councils has been reinforced in that each unitary authority has combined responsibility for flood prevention, planning and building control. As a means of further strengthening councils' position as the focus
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for dealing with flooding issues, NPPG 7 also encourages the identification of a wider forum in each council's area for the handling of these issues.
In that context, the formation of flood appraisal groups is suggested as a basis for tackling flooding problems. These groups would be formed by councils and would involve developers, insurers, relevant agencies and local people. They would inform and advise on the full range of flooding issues, including the need for flood prevention schemes and for catchment drainage management.
Before leaving the issue of flooding and moving on to another part of the Bill, I should like briefly to advise the House that we do not propose to change the existing power councils have to promote flood prevention schemes, nor the funding arrangements to build them.
Noble Lords will, however, be aware of the Government's "Challenge Fund" competition, the outcome of which was announced last week. This fund enables councils to compete for additional allocations to undertake large capital projects—projects which would normally be outwith the scope of their capital budgets. The fund had a very successful launch this year, especially with regard to flood prevention schemes, and I hope that councils will now be able to accept its worth. I also hope that the many sceptics who questioned the Government's commitment to flood prevention will now accept how important we consider the issue. That said, many of your Lordships will probably be glad to hear that I do not propose to spend any further time on the issue of local government finance tonight.
I should like now to turn briefly to another provision in the Bill: that is, the repeal of the Secretary of State for Scotland's statutory responsibility to maintain 13 agricultural drainage schemes created under the Land Drainage (Scotland) Acts 1930 and 1941. Repeal of these statutory responsibilities has been a long-standing policy objective of Scottish Office Ministers. The Secretary of State's responsibilities for these schemes include maintenance of floodbanks, channel width and depth and the removal of scrub and obstacles.
We calculate that less than one tenth of 1 per cent. of Scotland's agricultural land benefits from the schemes, and by no means all of the land that benefits from the work is still in agricultural production. River lengths treated under the 13 schemes total less than 200 kilometres compared with over 50,000 kilometres of surveyed rivers in Scotland; in other words, around four-tenths of 1 per cent. In total, we spend around £120,000 per annum on maintenance works, but because of legal constraints we are able to recover only around £2,000 per annum in total from the 300 or so beneficiaries.
The individual scheme specifications are set in statutes from the 1930s and 1940s. The Secretary of State is, therefore, saddled with archaic and inflexible maintenance responsibilities which cannot take account of modern agricultural or conservation priorities, or of upstream developments such as roads or forestry projects. Over the years, these factors have brought us into conflict with conservation and fishery bodies whose statutory responsibilities are to protect wildlife and fish

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stocks. Conservation bodies have therefore welcomed our proposed repeal of the Secretary of State's obligation to maintain the 13 schemes, and this Bill provides us with an appropriate opportunity at last to remove those anomalous legal responsibilities. I should also say that the repeal of the Secretary Of State's responsibility for these schemes would do no more than place those whose land is covered by them on the same footing as their counterparts in the rest of Scotland.
As I mentioned in my opening remarks, since it was published in draft in September of last year, the Government have made a number of amendments which clarify and strengthen the Bill. The main changes are: first, a new provision exempting councils from the duty to act when to do so would benefit only sole owners; secondly, a new clause which provides for increases in some of the fines for breaches of the provisions of the Flood Prevention (Scotland) Act 1961; and, thirdly, to delay until April 1999 the commencement of Clause 6 of the Bill, which covers repeal of the Secretary of State's responsibility for statutory maintenance schemes under the 1930 and 1941 Land Drainage (Scotland) Acts.
The first of the amendments makes it clear that the Government do not intend all maintenance responsibilities to be transferred to councils. The second puts across the message that we take seriously any breaches of the provisions of the 1961 Act. The third amendment takes account of representations received on behalf of those landowners who will have to take over the maintenance of river channels and floodbanks on their land, which for over 50 years has been funded from the public purse.
In conclusion, I have outlined the Government's strategy to help prevent and mitigate the effects of flooding. The provisions in this Bill, alongside other measures we have already taken, offer a comprehensive and cohesive approach which tackles the problems that have been identified. We are, of course, discussing the principle of the Bill tonight. In the meantime, I hope that the House will agree with me that the principle that underpins the Bill is in no doubt. We have given a commitment to help those who suffered as a result of flooding: this Bill honours that commitment. I therefore commend the Bill to the House.
Moved, that the Bill be now read a second time.—(The Earl of Lindsay.)
7.15 p.m.
Lord Lyell: My Lords, perhaps the House will grant me the indulgence of allowing me to ask my noble friend the Minister whether he can give me some guidance about Clause 3 of the Bill. That clause inserts a new section after Section 6 of the 1961 Act to which my noble friend referred. If my noble friend cannot reply to me in full tonight as to whether or not I have got this wrong, perhaps he could write to me on the matter.
In subsection (1) of the new Section 6A, a period of six months is mentioned. In subsection (2) it says that every two years a local authority would, so to speak, be obliged to publish a report thereby keeping everyone up to date. I do not necessarily declare an interest in the
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matter, except when I go home, and no doubt that is shared by my noble neighbour. Going across the M.90, one sees the Earn and the Tay, and indeed both those areas will be familiar to my noble friend.
However, can my noble friend the Minister clarify a query for me on the new section? I do not believe that it would impose a new duty upon local authorities—and I hope my noble friend will correct me if I am wrong—but I am curious simply because it is to be inserted into the legislation. It clearly says that within "six months" local authorities should look at any possibility of flooding on non-agricultural land and that every "two years" they "shall" update the report. If during the course of the Bill's passage my noble friend the Minister could give me some indication as to whether I am right or wrong in that respect, I should be most grateful.
7.17 p.m.
Lord Mackie of Benshie: My Lords, on the whole, it is a good Bill with good objectives. However, I find it a little curious that it talks about preventing flooding on "non-agricultural land", and then proceeds to abolish some measures for agricultural land which have been operating for 50 years or so. It would therefore appear that the Government do not mind flooding on agricultural land. However, I am sure that that is not the case.
The Government are obviously placing a responsibility on local authorities to assess the likely damage which may be caused. Then they are putting a duty on them to correct any faults that they may find which might result in flooding and which has caused great distress to householders in the past. It is of course a good and necessary thing to do. As I understand it, the Minister said there would be no more money for councils undertaking such work but that, for certain jobs, they may apply to a "challenge fund", if that is the right expression, for a 50 per cent. grant and, if they are lucky, they might get it. No doubt that would be useful to them. However, when we consider the present state of many councils which are cutting back on the number of staff, and so on, it seems to me that they are unlikely to spend a great deal of money—indeed, if they have any—on assessing such dangers.
I have of course considered the Commons' discussion. One or two good points have been made, one of which was made by my honourable friend the Member for Argyll. Is there sufficient co-operation along the whole catchment area of a river? The River Clyde runs through five different authorities. I think it important that a committee with powers should be set up to do this work. A considerable amount of co-operation is needed between the five authorities and unless a statutory body is established it is extremely difficult to achieve that co-operation. This is important work. One must consider the whole length of a river. If a storm occurs at the top of a river, its effects are felt by the people at the bottom end of the river. That must be taken into account. The point about money is important. The figure of 50 per cent. that has been referred to will not serve as a great encouragement in this matter. As I have said, the river must be treated as a whole.

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Sir Hector Monro referred to people in the agricultural sector who have been lucky enough to receive certain support. They need a three year delay to the repeal of the provision. I understand that the Government are willing to grant them a two year period to put them on the same footing as other landlords throughout Scotland, but is that enough? It takes a long time to establish a proper body to handle these matters. I think this is a good Bill but I shall be most interested to hear the Minister's reply to the points I have made. It is extremely important that we assess the situation and protect people from having their homes flooded.
7.22 p.m.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for having made such a clear statement of the impact and importance of the Bill. We all accept that flooding is a spasmodic phenomenon. However, it seems that the same areas get the worst of it year after year after year. I am also grateful to the noble Lords, Lord Lye11 and Lord Mackie of Benshie, for the points they have raised.
The general feeling, both here and in the other place, is that this is a worthwhile Bill. The Minister should have made us aware of the fact that the Government will save £150,000 through this measure, unless I read the explanatory notes incorrectly. The money question worries me slightly. According to the explanations given in the Bill, local government will have new responsibilities and new burdens. That must cost more money. As the noble Lord, Lord Mackie of Benshie, said, there will always be the problem—the Clyde is a good example—of area co-operation not being established unless a statutory body is set up. Will any extra money have to be made available to meet the provisions of the Bill? If local authorities have to pay for that, will the Government give them additional borrowing powers until they are reimbursed by the riparian owners, or whoever else is involved?
My next point concerns the nature of flooding. It is important. Will there be an emergency fund to deal with the effects of flash floods which can do enormous damage? Or is that quite a different matter? I am not sure. Flash floods disappear in a week or a fortnight whereas we are talking about long-term phenomena.
These are matters that seem to require some explanation. I am sure that the Minister will be able to provide that explanation. If he cannot provide it now, perhaps matters can be tidied up at the Committee stage of the Bill. I welcome the effort the Government appear to be making to lessen the effects of flooding and to improve land drainage in Scotland.
7.25 p.m.
The Earl of Lindsay: My Lords, I am grateful for the contributions from my noble friend Lord Lyell and from the noble Lords, Lord Carmichael of Kelvingrove and Lord Mackie of Benshie. I am especially grateful that all welcome the general principles of the Bill.
My noble friend Lord Lyell asked about the new duty in Clause 3 of the Bill. It is a new duty placed on councils to prepare and publish reports of the measures
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they have taken and the measures they think they should take to prevent or mitigate such flooding. As I explained earlier to the House, the duty requires them to report on all occurrences of such flooding. If that answers my noble friend's question I am happy, but if not I can write to him.
The noble Lords, Lord Mackie and Lord Carmichael, inquired about finance. I remind noble Lords that the Government have made available to local authorities an extra £3 million for revenue expenditure to meet the new duties arising from the Bill. Considerable thought has been given, in consultation with CoSLA, to how the £3 million should be distributed across the mainland authorities in Scotland. In addition I mentioned the challenge fund which is a considerable improvement on the previous arrangements as successful bidders will be guaranteed a specific level of capital allocation even when projects take several years to complete. There is also the grant of 50 per cent. of the eligible costs for approved flood prevention schemes which has existed and will continue to exist.
This year the local government settlement in Scotland has been set at a record level. The aggregate external finance at some £5.3 billion is about 42 per cent. higher than the equivalent settlement in England and Wales. The resources are available to local authorities to fund the priorities that they set for their areas. Given the other measures which can be co-ordinated with the Bill, such as NPPG7, we hope that the ability of local authorities to deal better with flood prevention and the promotion of flood defence measures than in the past will mitigate or remove the suffering that has been inflicted on many of the residents of a few specific areas.
The noble Lord, Lord Mackie, raised the important issue of co-ordination and co-operation along the course of a river or around the catchment of a river system. As I set out in my opening speech, NPPG7 encourages councils, where appropriate, to notify the position of any measures they are taking to deal with flooding on one part of the river where that might have an impact on another part of the river which is the responsibility of another council. There is also specific scope for closer co-operation through NPPG7 which anticipates the formation of flood appraisal groups as a means of focusing on cross-boundary issues. We are keen to encourage co-ordinated planning and co-ordinated working between councils which share the same catchment.
Lord Mackie of Benshie: My Lords, does that mean that in the Clyde, for instance, there will be a committee comprising the five councils involved who will discuss the whole matter, or once one council has carried out an assessment it will inform the others of that?
The Earl of Lindsay: My Lords, I shall write to the noble Lord if I have not given him the complete story but, as I understand it, we are encouraging such co-ordinated working rather than prescribing that there must of necessity be such a formal group. We have certainly signalled clearly that where benefits accrue from the joint working, joint working should be adopted.

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I am grateful to those who have expressed support for the Bill. I hope that the points raised have been dealt with. I believe that it is the wish of the whole House that through this legislation the local authorities and others will more easily be able to prevent or mitigate the suffering that has been inflicted on many through the misery that flooding has caused in the past. On that basis, I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Public Entertainments Licences (Drug Misuse) Bill
7.30 p.m.
Baroness Anelay of St. Johns: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, that the House do now again resolve itself into Committee.—(Baroness Anelay of St. Johns.)
On Question, Motion agreed to.
House in Committee accordingly.
The DEPUTY CHAIRMAN OF COMMITTEES (Lord Strabolgi) in the Chair.]
Clause 1 [Licensing outside Greater London]:
Lord Meston Lord Meston moved Amendment No. 9:
Page 1, line 25, at end insert ("; and
(c) the last known owner of the place.").
The noble Lord said: The amendment raises a topic upon which I have touched previously in the course of the Bill's progress. I have not yet received a response, possibly because it deals with only a relatively minor point. In moving Amendment No. 9, I speak also to Amendment No. 20.
The amendment suggests that the last known owner of the premises concerned should also be served with the licensing authority's reasons for deciding to refuse to renew or transfer the licence under the provisions of the Bill. The landlord has rights and remedies of his own which may be valuable in supporting the principle underlying the Bill; namely, to ensure that those who are responsible for licensed premises operate properly and take proper measures to protect the people who may be tempted to come there. The landlord has interests of his own to protect and should be informed at an early stage if the licence is in jeopardy. The landlord may be in a position to exert pressure on the licence holder in addition to pressure brought by the police or the licensing authority.
I accept that to some extent the amendment is imprecise. It simply refers to
"the last known owner of the place".
It does not indicate to whom the knowledge should be ascribed. It does not distinguish between a freehold owner and a leasehold owner. I hope that the principle underlying the amendment, and the suggestion implicit in it, finds favour with the Committee. I beg to move.
Lord Monson: This is a modest but useful pair of amendments. I hope that the amendments can be
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accepted. As the noble Lord said, the owner has a wholly legitimate interest in what goes on in his property. He—it may be an individual or a corporate body—is better placed than most to lean upon the tenant, who is presumably the licensed holder, to persuade him to do everything in his power to eliminate drug dealing from the premises in question.
Lord Gladwin of Clee: This power is to be used in an emergency situation. If the owner has had the wisdom to be the joint licence holder, he will of course be told. But I am anxious that no provision is inserted into the Bill that will inhibit the local authority from acting speedily. The responsibility of telling the owner must lie with the licence holder. If they are joint licence holders, he will be told. I hope that the amendment will be considered again because I believe that there is a danger that it could delay the implementation of the Bill.
Baroness Anelay of St. Johns: As the noble Lord, Lord Meston, explained, the purpose of the amendments is to ensure that the owners of premises who are not necessarily the licence holders are kept informed of any action by the local authority. I appreciate the reasons that the noble Lord, Lord Meston, moved the amendments and the arguments put forward by the noble Lord, Lord Monson.
Perhaps I may give an explanation as regards the consultation procedure of which noble Lords may not be aware. The need to inform third parties who have a significant economic interest in any enforcement action is covered by the enforcement procedures in the Deregulation and Contracting Out Act 1994. The application of those procedures to public entertainment licensing generally is currently the subject of consultation. That consultation is already well advanced. In the circumstances, I hope that the noble Lord, Lord Meston, will agree to withdraw the amendments.
The Earl of Courtown: The Government understand the concerns that those who have a significant interest in premises other than the licence holder should be kept informed of any enforcement action taken by local authorities under the Bill. As my noble friend said, public consultation is currently under way about the possible application to public entertainment licensing of the five enforcement powers in the Deregulation and Contracting Out Act 1994. One of those powers relates specifically to keeping third parties with a significant economic interest in a business informed of enforcement action against the licence holder. In the circumstances, I hope that the noble Lord will not press the amendment.
Lord Meston: I am grateful for the information from the noble Baroness and the Minister. It is reassuring to know that something is being done under the umbrella of other legislation.
Perhaps I may deal with one point raised by the noble Lord, Lord Gladwin of Clee. The provision would in no way inhibit swift action in an emergency. The provision deals with notifying a landlord after the decision has been made. It presupposes that the Bill is enacted in something like its present form. Therefore the

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amendment provides simply that the landlord is told that the decision has already been made, not that it is being contemplated. I do not believe that it would hold up in any way the processes of the Bill as they may operate in seriously urgent cases.
However, having heard what I have heard, I am more than happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 to 12 not moved.]
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 13:
Page 2, line 10, after ("police") insert ("stating").
The noble Baroness said: I spoke to Amendment No. 13 when I referred to Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 14:
Page 2, line 12, at end insert ("and giving reasons for his view that there is such a problem.").
The noble Baroness said: I spoke to this amendment with Amendment No. 2. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 15 and 16 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 17:
Page 2, line 17, after ("will") insert ("significantly").
The noble Baroness said: I spoke to this amendment with Amendment No. 6. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 18 to 22 not moved.]
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 23:
Page 2, line 37, after ("will") insert ("significantly").
The noble Baroness said: I spoke to this amendment with Amendment No. 6. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees: I have to inform the Committee that if Amendment No. 24 is agreed to, I cannot call Amendment No. 25.
[Amendment No. 24 not moved.]
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 25:
Page 2, line 44, leave out from ("where") to end of line 46 and insert ("a decision is made under paragraph 6A(5) or 11A(4) above means the date on which the person in question is notified of the decision.";").
The noble Baroness said: In moving this amendment, I shall also speak to Amendment No. 38.
Again, these amendments respond to points raised by the club trade. Members of the trade are worried that in providing for the start of the period within which a
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licence holder may bring an appeal against a local authority revocation or non-renewal, from the date on which those representations are considered, under the Bill as presently drafted there may then be a delay which could cut down the time allowed for the appeal.
This amendment therefore proposes that the time for the appeal should run from the date on which the person in question is notified of the decision rather than from the date on which representations are considered. I accept that that would indeed be a fairer approach. I beg to move.
Lord Meston: I am grateful to the noble Baroness for having brought forward this amendment. It introduces a measure of clarity into the Bill that was lacking in the original draft.
The Earl of Courtown: As my noble friend said, these amendments respond to the suggestion that the licence holder could be disadvantaged by dating the appeal period from when representations are considered. This amendment would change that, to start the appeal period running from when the licence holder is notified of the decision taken by the local authority. The Government support the amendment.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 26:
Page 2, line 46, at end insert—
("() in sub-paragraph (3) (appeals against decision of magistrates' court), after "under this paragraph" insert "or under paragraph 12(5) above";").
The noble Baroness said: In moving this amendment, I shall also speak to Amendment No. 39.
It was brought to my attention that there was a difficulty with the Bill as it stands if, when a magistrates' court decided to revoke a licence after a conviction for breach of a licence condition, the person who lost his licence was not also the offender. An offender can already appeal against a sentence under Section 108 of the Magistrates' Courts Act 1980; but a licence holder who is not the offender would have to rely on the case stated procedure. This amendment establishes clearly the right of appeal of the licence holder in such circumstances from the decision by a magistrates' court to revoke a licence. I beg to move.
The Earl of Courtown: The Government support this amendment. It establishes the right of appeal to the Crown Court against the decision to revoke a licence by a magistrates' court after a conviction for breach of a licence condition in circumstances where the licence holder is not also the offender.
On Question, amendment agreed to.
7.45 p.m.
Lord Meston Lord Meston moved Amendment No. 27:
Page 3, line 8, after ("licence") insert ("and any special hours certificate granted under section 77 of the Licensing Act 1964").
The noble Lord said: In moving this amendment, I also wish to speak to Amendment No. 29. These amendments concern the impact of the Bill as presently drafted upon the special hours certificate.
The position, as explained at Second Reading, appears to be that, even if a licence under the provisions of the Bill is reinstated either pending appeal or as a result of appeal, it does not automatically revive the special hours certificate, for which there are separate procedures. I believe that was an oversight in the drafting of the Bill. It is for that reason that these amendments were tabled. I notice that they are grouped with Amendments Nos. 40 and 41 in the name of the noble Baroness, Lady Anelay, which leads me to suspect that her amendments are probably better drafted than mine. Nevertheless, if we are all rowing in the same direction, I should be grateful to hear it. For the purposes of introducing the debate, I beg to move.
Baroness Anelay of St. Johns: In responding to the comments of the noble Lord, Lord Meston, in relation to his Amendments Nos. 27 and 29, I should also like to speak to my Amendments Nos. 40 and 41 to which he referred.
The difficulty with the Bill as it stands and as outlined by the noble Lord, Lord Meston, was raised by the club trade. The difficulty was also brought to my attention by the justices' clerk to my own Bench in Woking. As the noble Lord, Lord Gladwin of Clee, will know, when he tells me something I believe him—more or less, and certainly on this occasion. I recognise that in the event of a successful appeal, a club ought not to be penalised by a delay in re-obtaining its special hours certificate, which would have lapsed automatically with revocation or non-renewal of a public entertainments licence.
The amendments in my name rectify the position by enabling any special hours certificate to be reinstated in the instance where a licence is reinstated by a local authority following representations by the licence holder, and also in the event of a successful appeal against revocation in the courts. I hope that, in the circumstances, the noble Lord, Lord Meston, will accept that my amendments deal adequately with the issue and will agree to withdraw his amendments.
Lord Gladwin of Clee: Perhaps I may join the noble Baroness in deferring to the learned clerk of the North West Surrey Bench. I, too, therefore prefer the wording of Amendments Nos. 40 and 41 to that of the amendments tabled by the noble Lord, Lord Meston.
The Earl of Courtown: My noble friend and the noble Lord, Lord Meston, have recognised that club owners whose appeals are successful will be disadvantaged if they then have to wait while their application for a special hours certificate is processed. Amendments Nos. 40 and 41 rectify the position. They are supported by the Government.
Lord Meston: Sometimes it is very irritating that magistrates are so supine that they always do what their clerks tell them. However, on this occasion I am more than happy that at least two of the magistrates present
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in the Committee this evening have accepted the good advice received. On the basis of the argument we have heard, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Meston Lord Meston moved Amendment No. 28:
Page 3, line 12, at end insert—
("(7B) An authority which refuses to renew or revokes a licence under paragraph 6A or 11A above may order that the licence shall remain in force (subject to such terms, conditions and restrictions as may be imposed)—

(a) until the time for bringing an appeal against the refusal to renew or revocation has expired; and

(b) if such an appeal is duly brought, until the determination or abandonment of the appeal,

and if such an order is made any special hours certificate granted under section 77 of the Licensing Act 1964 shall also remain in force for the same period.").
The noble Lord said: This amendment takes up a point raised at Second Reading and draws attention to an apparent anomaly in the Bill. At Second Reading, the noble Earl confirmed that it was not possible that, where the local authority revokes a licence, the licence can be kept in being pending an appeal, albeit temporarily, but if the revocation is ordered by the magistrates' court, the court has power to order the licence to remain in force pending appeal. That does appear to be an anomaly. If the court may do it, why cannot a local authority do it, exercising a similar power with a similar right of appeal? It is common for there to be a provision for a stay pending appeal. That provision is discretionary; the stay is unlikely to be granted if the appeal appears to the authority or the court concerned to be absolutely hopeless. However, it deprives the licence holder of the opportunity to persuade the authority to keep the licence in being pending an appeal if the licence holder can give reassurances that he or she will do whatever is required of him or her to keep the business on the straight and narrow pending an appeal. The alternative may be that the fruits of his appeal are lost to him because, although he may win on his appeal, his business is gone. That must be a matter for discretion. I do not suggest that the discretion need be exercised generously, but it is an anomaly on the face of the Bill which I question seriously. For that reason, I beg to move the amendment.
Baroness Anelay of St. Johns: The thinking behind the amendment appears to be that there will be cases, perhaps on the margin, where, despite a local authority accepting that there is a serious problem relating to the supply and use of drugs at or near the premises and that the licence should be revoked, there may still be circumstances which would lead a local authority to let the club stay open pending the outcome of any appeal.
I cannot see why such a power could be useful or relevant in those circumstances. The Bill provides that if the authority decides to take action, it can either revoke the licence or impose terms, conditions or restrictions after satisfying itself that to do so will significantly assist in dealing with the problem. A local authority is convinced either that varying the terms and conditions and allowing the club to stay open is justified, or that the problem is so serious that the club should close forthwith.

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We must accept one of those two. If accepted, the amendment would only produce further uncertainty and the opportunity for indecision. I am sure that local authorities are perfectly capable of considering all the evidence as it arises and making the correct decision at that stage. I ask the Committee to reject the amendment.
The Earl of Courtown: The provisions of the Bill give the authority clear options, as stated by my noble friend. After hearing all the evidence, it may decide to take no action and impose terms and conditions or revoke the licence after satisfying itself that to do so will assist in dealing with the problem. If the step to revoke the licence is taken, that should be the end of the matter. We should avoid introducing further complications by allowing the option of letting a club stay open while it goes through the appeals process. I join my noble friend in asking the Committee to reject the amendment.
Lord Monson: Does the noble Earl agree that the court has power to allow that to happen? Why should the court have the power but not the authority?
The Earl of Courtown: The noble Lord raises an interesting point, but I do not have the answer. The noble Lord, Lord Meston, also raised some interesting points and if the Committee will allow it, I shall write to both noble Lords.
Lord Meston: It is a point of consistency which was raised at Second Reading. For the life of me, I cannot see why a local authority should not have the same power, albeit a power exercised sparingly, as is undoubtedly given to the court in analogous situations. It is that point and that point alone which motivates the amendment.
The Minister said that the licensing authority makes its decision and that should be the end of the matter. However, the amendment recognises that it is not the end of the matter. The end may well be an appeal. The limited objective of the amendment is to allow people at least to apply to the licensing authority to be allowed to remain in business, subject to whatever terms, conditions and restrictions may be imposed, until the appeal is determined. That is not an unusual power which I seek to introduce into the machinery of the Bill.
It has already been recognised in our earlier discussions that the procedures which may operate under the Bill and under the guidance which will ultimately be perfected are not necessarily perfect procedures. It may well be that there are marginal cases in which something has gone seriously wrong and where an appeal is justified and may well succeed. But it will be too late from the point of view of the licence holder. For that reason—
The Earl of Courtown: With the leave of the Committee, I did not answer the question posed by the noble Lords, Lord Meston and Lord Monson. However, I undertake to write to both of them and to discuss the detail before the next stage of the Bill.
Lord Meston: I am grateful to the Minister for that indication. It remains a curiosity which needs to be cleared up, in my submission. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
Clause 1, as amended, agreed to.
Clause 2 [Licensing in Greater London]:
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 30:
Page 3, line 26, after ("situated") insert ("stating").
The noble Baroness said: I spoke to Amendment No. 30 with Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 31:
Page 3, line 27, at end insert ("and giving reasons for his view that there is such a problem.").
The noble Baroness said: I spoke to this amendment with Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendments Nos. 32 to 36:
Page 3, line 30, after ("will") insert ("significantly").
Page 4, line 5, after ("situated") insert ("stating").
Page 4, line 6. at end insert ("and giving reasons for his view that there is such a problem.").
Page 4, line 11, after ("will") insert ("significantly").
Page 4, line 32, after ("will") insert ("significantly").
On Question, amendments agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 37:
Page 4, line 37, at end insert ("and for "the next following sub-paragraph" substitute "sub-paragraph (2) of this paragraph").
The noble Baroness said: This is a minor drafting amendment. It improves the drafting of paragraph 19(1) of Schedule 12 to the London Government Act 1963 which applies to Greater London and makes provision for appeals. The amendment simply substitutes for a reference to, "the next following sub-paragraph" a reference to "sub-paragraph (2) of this paragraph" paragraph 19. The meaning, I am assured, is unaltered. I beg to move.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 38:
Page 4, line 46, leave out from ("where") to end of line 3 on page 5 and insert ("a decision is made under paragraph 2A(5) or 9A(4) of this Schedule means the date on which the person in question is notified of the decision.":").
The noble Baroness said: I spoke to this amendment with Amendment No. 25. I beg to move.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 39:
Page 5, line 3, at end insert—
("() in sub-paragraph (2) (appeals against decision of magistrates' court), for "on an appeal under the foregoing sub-paragraph" substitute "under sub-paragraph (1) of this paragraph or under paragraph 10(4A) of this Schedule";").
The noble Baroness said: I spoke to this amendment with Amendment No. 26. I beg to move.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 40:
After Clause 2, insert the following new clause—
CONSEQUENTIAL PROVISION FOR SPECIAL HOURS CERTIFICATES
(". In section 81 of the Licensing Act 1964 (revocation of special hours certificates), after subsection (1) insert—
"(1A) Where a special hours certificate is revoked under subsection (1) above as a consequence of a licence being revoked under—

(a) paragraph 11A(2) or 12(5) of Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982, or

(b) paragraph 9A(2) or 10(4A) of Schedule 12 to the London Government Act 1963,

the certificate shall be reinstated if the licence is reinstated under paragraph 11A(4) or 17 of Schedule 1 or paragraph 9A(4) or 19 of Schedule 12."").
The noble Baroness said: I referred to this amendment when Amendment No. 27 was discussed. I beg to move.
On Question, amendment agreed to.
Clause 3 [Short title, commencement and extent]:
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 41:
Page 5, line 22, leave out ("and 2") and insert ("to (Consequential provision for special hours certificates)").
The noble Baroness said: I also spoke to this amendment when we discussed Amendment No. 27. I beg to move.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
House resumed: Bill reported with amendments.
Lord Lucas: My Lords, I beg to move that the House do now adjourn during pleasure until five minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8 to 8.5 p.m.]

Crime and Punishment (Scotland) Bill
House again in Committee on Clause 26.
[Amendment No. 133 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 134:
Page 34, line 11, at end insert ("; and
(c) any person who has suffered from mental illness for which he has been treated by a doctor or in a hospital and who the court accepts is likely to suffer ill effects if required to give evidence in court.".").
The noble and learned Lord said: My problem has been that there are genuine difficulties in defining people who are suffering from mental illness and who deserve the recognition that this clause gives to others. But the Committee will see from Amendment No. 134 that I speak of a person suffering from a mental illness:
"for which he has been treated by a doctor or in a hospital and who the court accepts is likely to suffer ill effects if required to give evidence in court".
In a sense that mirrors a provision already contained in the clause as it stands. Before we rose for the brief adjournment, I mentioned that I was concerned about people suffering from simple—or fairly severe—depression, which amounts to a great many people. One person in four in our society will suffer from some form of depression in his or her lifetime and others suffer from nervous illness.
The safeguards in respect of the matters to which the noble and learned Lord referred are, first, that there is a commissioner appointed; secondly, a video link may be used—it may be a live link in court; and, thirdly, other protections contained in the clause itself. In all those circumstances I should have thought it possible for the Government to recognise that a person suffering from a mental illness for which he has required treatment ought to be able to apply to the court—or the prosecutor or the defence ought to be able to apply on his or her behalf—to show that there may be ill effects if that person is required to give evidence. Accordingly, I beg to move the amendment.
Lord Mackay of DrumadoonI have already indicated the Government's position in respect of this amendment when speaking earlier to Amendment No. 132B. I need not repeat anything that I said on that occasion.
In simple terms, our objection is that, if the noble and learned Lord, Lord McCluskey, is correct that one in four members of our society suffers from some form or another of depression, potentially a very large number of people will qualify under this additional category of vulnerable witness. All that would be required would be for an individual to say that he had been a little depressed, had gone along to a general practitioner, recounted the depression to the GP and had received pills of some kind to calm down the depression. He would then be through the first gateway in the new subsection. The court would need to embark upon an examination of whether someone who had taken pills for nerves in the past was likely to suffer a bit more depression or nervous tension in giving evidence in court.

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All those who have practised in the courts appreciate that giving evidence is a fairly stressful business. The concern is that the amendment would lead to a large number of applications from people who, for one reason or another, were unwilling to give evidence in open court. They would become aware of the existence of this power and seek to persuade the procurator fiscal or the defence to make an application relating to them. If the application was successful, it would lead to an increasing number of people giving evidence from behind screens or over the CCTV link. If it was unsuccessful, it would take time to resolve, and create difficulties in getting trials up and running.
This is obviously an anxious matter. As I explained earlier, we considered it fully and I hope, in those circumstances, that the noble and learned Lord will not press his amendment.
Lord McCluskey: The reply of the noble and learned Lord the Lord Advocate was dismissive of mental health problems. It is not simply a question of people wanting to take a few pills and going off to a doctor. Some people suffer from mental health problems and would find a court atmosphere extremely distressing. Most people do not want to avoid going to court; most are quite happy to do so.
I hope with this amendment I have sown a small seed and that on a future occasion the Government will consider consulting people in the Scottish Association for Mental Health, the King's Fund Institute and other such bodies, to see whether or not there is support for this type of proposal. In the meantime, as invited, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26, as amended, agreed to.
Clause 27 [Routine evidence]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 135:
Page 34, line 12, leave out from beginning to second ("the") and insert ("Schedule 9 to the 1995 Act (routine evidence) shall be amended in accordance with subsections (1A) and (1B) below.
(1A) In").
The noble and learned Lord said: In moving Amendment No. 135, with the leave of the Committee I shall speak also to Amendments Nos. 136 and 158. These are technical amendments which seek to amend Schedule 9 to the 1995 Act. They insert a revised entry in that schedule in respect of the Video Recordings Act 1984 to insert a provision which was unfortunately overlooked at consolidation. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 136:
Page 34, line 19, at end insert—
("(1B) In the entry relating to the Video Recordings Act 1984, for the words in the second and third columns there shall be substituted the words in, respectively, the left and right hand columns below—

"A person authorised to do so by the secretary of State, being a person who has examined the record maintained in pursuance of arrangements made by the designated authority and in the case of a certificate in terms of—

That the record shows any of the following—

(a) sub-paragraph (a) in column been issued; 3, the video work mentioned in that sub-paragraph;

(a) in respect of a video work (or part of a video work) contained in a video recording identified by the certificate, that by a date specified no classification certificate had been issued;

(b) sub-paragraph (b) in that column, both video works mentioned in that sub-paragraph

(b) in respect of a video work which is the subject of a certificate under sub-paragraph (a) above, that the video work differs in a specified way from another video work contained in a video recording identified in the certificate under this sup-paragraph and that, on a date specified, a classification certificate was issued in respect of that other video work;

(c) that, by a date specified, no classification certificate had been issued in respect of a video work having a particular title;

(d) that, on a date specified, a classification certificate was issued in respect of a video work having a particular title and that a document which is identified in the certificate under this sub-paragraph is a copy of the classification certificate so issued; expressions used in column 2, or in this column, of this entry being construed in accordance with that Act; and in each of sub-paragraphs (a) to (d) above "specified" means specified in the certificate under that sub-paragraph.".

(1C) Section 5 of the Video Recordings Act 1993 shall cease to have effect.").
The noble and learned Lord said: I spoke to this amendment when moving Amendment No. 133. I beg to move.
On Question, amendment agreed to.
Clause 27, as amended, agreed to.
Clauses 28 and 29 agreed to.
8.15 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 136A:
Before Clause 30, insert the following new clause—
CONTINUITY OF SENTENCING
(" .—(1) This section has effect for the purpose of securing that, where a person is sentenced to a term of imprisonment in respect of an offence—

(a) to which this section applies; and

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(b) which is committed after the commencement of this Part, he serves approximately the same time in prison as he would have served if the offence had been committed immediately before that commencement.

(2) The court by which a person is so sentenced at any time shall impose a term which is equal to two-thirds of the term which, at that time, it would have considered to be appropriate if the offence had been so committed.
(3) This section applies to any offence other than one—

(a) which did not subsist, or was not punishable with imprisonment, immediately before the commencement of this Part: or

(b) for which the maximum sentence of imprisonment that may he imposed has been varied after that commencement.").

The noble and learned Lord said: Amendment No. 136A raises an important question of principle. It proposes introducing a clause which those Members of the Committee who attended the proceedings of the Crimes (Sentences) Bill will recognise as being a clause lifted from that Bill. As amended in Committee, that clause is now Clause 23—"Continuity of sentencing".
The importance of the matter is this. When it was announced in October 1995 at the Conservative Party conference that certain measures were to be taken, the general impression sought to be given was that people would serve in prison the time imposed by the court. Many people applauded that because many thought it was a charade by the judge to impose a certain number of years and for the prisoner to serve one-half or two-thirds of that time. The notion was given the name "honesty in sentencing" or, alternatively, "truth in sentencing".
The idea of truth in sentencing originated not in these islands, but abroad. I have referred before to the fact that in the Commonwealth, in New South Wales, the sentencing Act 1989 introduced this idea. On that occasion the Parliament in New South Wales was told that Ministers had no intention of making sentences longer. It was also said that there would be no extra pressure on New South Wales prisons, which were already overcrowded.
In Scotland, as in England, the prisons are already overcrowded. Those who care to check that against Answers given in the autumn of 1995 to Questions asked by myself will find that the Government concede that the prisons are substantially overcrowded, both north and south of the Border.
The concept of truth in sentencing was invented by the Commonwealth of Australia Law Commission. It proposed that persons who were convicted should serve in prison 70 per cent. of the time imposed by the judge; they should have 10 per cent. off automatically and 20 per cent. should be an earned release possibility. That means one could earn one-fifth; one-tenth came off automatically; and the rest one had to serve. Judges had to prescribe a minimum and remission was abolished altogether.
That Act came into force in New South Wales on 1st January 1990 when the prison population was 4,891. Four years later the prison population, contrary to the assurances given by Ministers, was 6,440—an increase of 1,549; a 32 per cent. increase. Members of the Committee will be aware that the population of New
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South Wales is roughly comparable to that of Scotland. Therefore, despite the assurances of Ministers, there was a 32 per cent. increase in the population of the prisons on the basis of so-called "truth in sentencing". Five new prisons had to be built in New South Wales in that period, one of them a private one. The Australian Institute of Criminology studied the relationship between the prison population and the crime rate and could find no correlation whatever between them.
I drew attention to the experience of the United States and Australia, particularly New South Wales, in the SACRO lecture which I gave in 1995 before these proposals were announced; I mentioned it also in my response to the Government's paper—Making the Punishment Fit the Crime—early in 1996; and I mentioned it again in response to the Crime and Punishment paper in June 1996. I now draw attention to Clause 23 of the Crime (Sentences) Bill, which is mirrored in my amendment. That is a proposal in the English Bill that judges should deduct one-third from the term they impose from the period they would consider appropriate had they sentenced before the Bill came into effect.
When the matter was put up for consultation in Scotland, the then Lord Justice General—I am afraid he is no longer in his place—made it plain in his response to the Government's proposals:
"It is unlikely that sentencing judges will reduce the length of the determinate sentences which they impose to reflect the change in policy".
The then Lord Justice-Clerk, Lord Ross, said in his response:
"Possible remission is not a factor which has any relevant bearing to the length of sentence imposed by the judge".
For good measure, I responded in the same terms.
What has been done in the English Bill is that a clause has been put in to ensure that there is continuity of sentencing; in other words, to ensure that the prison population does not go through the roof. At the moment, it appears that in Scotland the prison population will increase by some 40 per cent. That would be shocking north of the Border when it is not happening south of the Border. I beg to move.
Lord Sewel: I rise to support the amendment and in so doing I congratulate the noble and learned Lord, Lord McCluskey, on bringing this to the attention of the Committee. The importance of the clause is that it brings together honesty in sentencing which will be explicit and also the need to set a regime within which the prisons of Scotland can be properly managed. If there is no change in sentencing policy, we shall be faced with an explosion in the prison population. We already have overcrowded prisons in Scotland. The resources that the Government have indicated will be applied to the building of new prisons are inadequate set against the potential of the early release arrangements. The amendment at least has the great merit of bringing a degree of honesty, openness and transparency into the whole process. I support it.
Lord Mackay of Drumadoon: In opposing the amendment perhaps I may remind the Committee of

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what I said last week. None of the provisions of the Bill would be brought into effect until the Government were satisfied that there were sufficient prison resources to cope with any increased prison population that might result. Therefore, with respect to those who have spoken, I am not sure that that factor is of importance.
The critical matter is whether this Committee wishes to accept an amendment which would depart from the practice that has been followed by Scottish judges of leaving these matters out of account—the noble and learned Lord, Lord McCluskey, is quite right in explaining that they have left them out of account—or whether it wishes the Scottish courts to take them into account in the way that happens south of the Border.
There is and has been a divergence of approach, which is why the Crime (Sentences) Bill contains a Clause 23 and our Bill does not. South of the Border the sentences currently being imposed reflect the provisions on early release which were introduced into the law of England by the Criminal Justice Act 1991. When that Act came into force in 1992, after he had consulted with the Lords Justice who presided in the Court of Appeal (Criminal Division), the then Lord Chief Justice made a practice direction setting out a new approach to sentencing—one which took account of the new provisions for release included in the 1991 Act. The direction advised the sentencing judges to have regard to the actual period likely to be served and to the risk of offenders serving longer under the 1991 Act's system than under the previous regime. It referred in particular to the reduction in the possibilities of parole which would result under the provisions of the 1991 Act.
Moreover, when courts in England and Wales specify the "relevant part" of a life sentence, which, as Members of the Committee will know, is the minimum period to be served in custody for the purposes of punishment and deterrence, they are obliged by Section 34(2) of the 1991 Act to take into account the provisions applicable to lifers as compared with those for determinate sentence prisoners, which include the possibility of parole at one-half of sentence and the virtual certainty of release after two-thirds of the sentence has been spent in custody. There is no similar provision applicable in Scotland. That is part of the background against which the Lord Chief Justice of the day felt it appropriate to issue the practice direction. It follows therefore that judges in England and Wales currently take account of the law on early release, and that is why my right honourable friend the Home Secretary decided to include the provision in the Crime (Sentences) Bill.
No equivalent action was taken by the Scottish judiciary when the 1993 Act came into force. No act of adjournal, practice direction or any sentencing guidelines came into being which directed sentencing judges in Scotland to follow a similar approach to that which is followed in England. As the noble and learned Lord has made clear, in response to the consultation paper and indeed to the White Paper, the former Lord Justice-Clerk, Lord Ross, indicated that such a consideration would not be taken into account.
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That was the position when the Government came to decide upon the provisions to be included in the Crime and Punishment (Scotland) Bill. Contrary to any impression which I may have given at Second Reading, I do not wish to suggest that the Government consulted as to whether or not the clause set out in the amendment should be included in the Bill. On the contrary, they took the view that, in the light of the clear information provided to the Government by the Scottish judges as to the irrelevance of early release provisions, it would be inappropriate to propose such a proposal.
The position in Scotland is therefore that the judiciary advised us that it is its practice not to take account of early release when sentencing. It has not been suggested, prior to today's amendment, that the practice should be changed. We do not think it is appropriate to do so. It is suggested that this provision has something to do with honesty in sentencing. I am not sure I fully understand what the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Sewel, had to say on that matter. What the Government have in mind with regard to honesty in sentencing is ending what Lord Ross called the "charade" of current sentencing procedure in terms of which one sentence is imposed and a lower sentence—in some cases as low as 50 per cent.—is served. We have no particular view on what the appropriate size of the prison population might be. What we have is a commitment not to bring these provisions into force until we are satisfied that the prison places are there. If the judges wish to adjust their general level of sentencing after the provisions of the Bill come into force, that is entirely a matter for them.
There are a number of ways in which that might be achieved, but it would be for the courts to decide what was the correct way forward. It is a matter which the Lord Advocate of the day would have to consider with the Lord Justice General. A variety of ideas come to mind, some of which I have mentioned already. The first is that the court should pass an act of adjournal setting out in the form of secondary legislation the extent to which sentencing judges should have regard. If that were to be the case they would require to look at the law as it is at the moment under the 1993 Act; the circumstances in which release can be considered at 50 per cent. subject to consideration by the Parole Board; the extent to which release is automatic at two-thirds subject to any extension for bad behaviour or misconduct in prison which has led to additional days being imposed on the sentence; and they would have to consider the provisions under the 1993 Act that entitle the court when dealing with a further offence after release, to order that the balance of the original sentence be served. Those are matters which an act of adjournal can deal with if the court thought that was the way to proceed. Another alternative would be for the Lord Justice General, either on his own or more likely when sitting in the appeal court, to issue sentencing guidelines which direct the court how to proceed. Again, that would involve going over the provisions of the 1993 Act, including the various chapters that I have mentioned as regards the right to seek parole at 50 per cent. of the sentence; the right to be released

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automatically after two-thirds; and the provisions for the sentence to be served, if it is outstanding, in the event of further offending.
These are all matters which the appeal court judges would have to consider if that was the way they chose to go forward. We believe that it would be a serious mistake for this House or the Government to set out on the face of the Bill how Scottish judges should change their approach to these matters in view of the advice we have received. It may assist the Committee if I go into a little detail as to what that is. Some reference was made earlier to the views of Lord Ross. He said,
"Under the arrangements for the release of prisoners which presently exist, I regard myself when imposing sentence as taking part in something of the nature of a charade".
I may be wrong, but I believe that at an earlier stage in the Committee's deliberations, the noble and learned Lord, Lord McCluskey, agreed that "charade" was not an inappropriate word to describe what was going on at the present time.
8.30 p.m.
Lord McCluskey: Will the noble and learned Lord please stop quoting selectively from the Lord Justice Clerk? He said,
"I consider the correct balance would be struck if the maximum remission were fixed at one-third of sentence".
So he adopted the word "charade" in very specialised circumstances. I have before me his representation to the Government. It is unfortunate that the noble and learned Lord should quote it selectively in the way that he is doing.
Lord Mackay of Drumadoon: I apologise for quoting selectively. I have the whole document here and I am happy to go back to its full terms and to be quite clear on the full detail of what the then Lord Justice Clerk, Lord Ross, said. He did not deal with all the proposals set out in the White Paper, but under a sub-heading "Sentencing" in reference to paragraph 17.61 of the White Paper, he discussed the provisions for automatic life sentences. I do not know that it is necessary to go through that. In the next couple of pages of the document he deals with that in some detail. I assume that it is not intended that I should read all that.
He then turns to the sub-heading under paragraph 17.62, which deals with the matter we discussed at the last sitting of the Committee; namely, the question of increasing sentencing powers in the sheriff's summary and sheriff's solemn courts. I am just looking through that to see if there is anything that I should draw to the attention of the Committee. I hope that Members of the Committee will bear with me because I am having some difficulty in finding the relevant paragraphs. I have only a quotation in my notes and perhaps I can come back to the matter in a moment. Perhaps it can be found for me.
I assure Members of the Committee that I have no intention of being selective. I am quite happy to discuss the full detail of what was in the response of Lord Ross, as I am to discuss the full detail of what is in the response of other senators of the College of Justice who responded in the consultation to this particular measure.
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As I hope I have sought to make clear, the Government took the view that when judges of the seniority of Lord Ross have that view as to what they are doing when passing sentence and the public are therefore alarmed by the fact that the judges are saying such things, there is a clear danger that confidence in the criminal justice system may be undermined. I have now had the passage pointed out to me and perhaps I may read out the whole of it so I avoid any criticism of being selective in my quotations. Lord Ross said,
"As a judge who has been engaged in sentencing in the High Court of Justiciary for a period in excess of 19 years, I share some of the concerns expressed in the consultation paper".
These are concerns set out on behalf of the Government in the consultation paper for the benefit of consultees to respond to.
"While I recognise the benefit of parole in the case of long-term prisoners and that prisoners must have some incentive to behave during their sentence, I have for some time felt concerned that prisoners are released long before their sentences have expired".
If I may say so, that is a very telling observation indeed. Here one has a man who at that stage was the second most senior judge in Scotland advising the Government that judges who sentence in Scotland, as a matter of practice, have to ignore the provisions for early release set out in the relevant legislation in imposing sentence and yet having all the time a concern that prisoners are released long before their sentences have expired. I would have thought that that would strike a chord in the ears of many listeners and certainly, I hope, in the ears of Members of the Committee.
Lord Ross continues,
"Under the arrangements for early release of prisoners which presently exist, I regard myself when imposing sentence as taking part in something in the nature of a charade".
That was the passage that I quoted earlier. Lord Ross goes on to say,
"I say this because if I impose a sentence of three years imprisonment upon a prisoner, I know and he knows that unless he commits a breach of prison discipline he will be released when he has served half only of the sentence which I have imposed so that to all intents and purposes three years means 18 months. Likewise, if for a serious crime I impose a sentence of 12 years imprisonment, the prisoner knows and I know that he will be eligible for parole after he has served six years of his sentence and that even if parole is not granted he will be automatically released on licence after he has served eight years of the 12 years sentence. It has always appeared to me that the result of these arrangements is that the public are really being misled as to the sentences which are imposed upon offenders".
Again, I pause to observe that it is the view of the second senior judge in Scotland that the public are being misled. I venture to suggest that that is not a very happy state of affairs. Lord Ross goes on to say,
"When a heavy sentence is imposed in the case of some very serious crime, that is widely reported in the press, but the public are not told that the person who has received this lengthy sentence will be eligible for parole when he has served half his sentence and will be entitled to automatic release after serving two thirds of his sentence. I therefore support the view that to ensure credibility in sentencing all those sentenced to imprisonment should be required to serve greater periods than are prescribed under the present arrangements".

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Lord Ross went on to say—this touches on a matter with which we shall deal later, but it may be convenient if I refer to it now—
"However, I am not persuaded that it would be practicable to require all prisoners to serve their full sentence in custody. If good order and discipline are to be maintained in prisons, it is necessary that prisoners should be given some incentive to behave. The only practical incentive is an offer of remission. The Government proposal is that a maximum of possibly one-sixth of a sentence might be available by way of remission. Given the history of remission in this country, I doubt whether remission of one-sixth would be adequate".
Lord Ross then described the situation since parole was introduced in 1967, touched on the Kincraig Committee report, to which reference has already been made, and referred to the provisions of the Prisoners and Criminal Proceedings (Scotland) Act 1993. That is the 1993 Act to which I have been referring.
Lord Ross added:
"In my judgment, it is necessary to strike the right balance between requiring prisoners to serve a substantial part of the sentence imposed by the court and the need to offer them some incentive to behave while in prison. I do not believe that the proper balance is achieved at present. I consider that the correct balance would be struck if the maximum remission were fixed at one-third of the sentence, that being the situation prior to the introduction of parole in 1967. I do not consider that the present arrangement, whereby remission is for all intents and purposes fixed at one-half, is appropriate. On the other hand, I also believe that the Government's suggestion that remission should be a maximum of one-sixth is insufficient. In my opinion, the public would be likely to have more confidence in the criminal justice system if it knew that every prisoner would require to serve at least two-thirds of his sentence. I appreciate that they might have greater confidence in the criminal justice system if remission was restricted to one-sixth of the sentence, but I would anticipate that with remission at that level there might be problems in maintaining good order and discipline within prisons. If remission was fixed at one-third, as it was prior to 1967, sentencing would in my judgment become less misleading than it presently is".
So there one has it. Lord Ross acknowledged that the parole and early release provisions are left out of the account, but equally he informed the Government, in response to the consultation exercise, that what happens now contributes to a loss of confidence in the system. Clearly, there is a difference of view with regard to the maximum amount of remission between him on the one hand and the Government on the other, Lord Ross wanting remission of one-third and the Bill specifying remission of one-sixth. In my submission, however, that provides a fair measure of support for the provisions.
It was having heard what Lord Ross had to say—a view which was clearly not limited to himself—that the Government decided that it was necessary to act. We have been accused of playing politics in the matter. I reject that criticism but even if there was validity in it, so be it because if the Government are informed that a charade is taking place, the time must have come to do something about it—and that is what the Bill seeks to achieve.
If the amendment proposed by the noble and learned Lord, Lord McCluskey, were accepted, it would rewrite the history of sentencing and would do so without, as I understand it, having the universal support of the noble and learned Lord's colleagues in the judiciary. If
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that step were to be taken, that would be another way in which the public's confidence in sentencing might be undermined. We take the view that that would be a retrograde step.
Throughout the passage of the Bill, the Government have indicated that it is not being suggested that this part of sentencing procedure should be interfered with. If judges are unlikely to reduce sentences to reflect the changes in our procedures, so be it, but it would be wrong to interfere without bringing forward reasons to justify specific proposals. We have been criticised on more than one occasion during proceedings on this Bill for interfering unnecessarily with the discretion of the courts. I do not want to retrace that ground because we have already had extensive debates on the matter but in the present situation, where the courts are saying what their practice is, where nobody is complaining to the Government that that practice should change and where the Government for their part do not consider that the practice should change, we believe that it would be a serious error for us to promote such a proposal. Indeed, we believe that it would be a serious error for us to accept this proposal, which comes so late in the Bill—
Lord Macaulay of Bragar: It is your Bill.
8.45 p.m.
Lord Mackay of Drumadoon: The noble Lord, Lord Macaulay, suggests that it is our Bill. This Bill has been debated over a long period of time in another place. I am sure that the noble Lord will have read the report of the deliberations on the Bill in another place: what was said at Second Reading and on Report but, most particularly, what was said during the seven or eight days of Committee stage there—
Lord Sewel: Are we going to hear all that now?
Lord Mackay of Drumadoon: I have no intention of unnecessarily repeating all that was said then, but I resist the criticism implied by the offstage comment of the noble Lord, Lord Macaulay, that this is our Bill. There has been ample opportunity for the Opposition to table amendments of this nature if they deemed that appropriate. They did not do so in Committee, on Report or at Third Reading in another place. Indeed, I may be wrong, but I believe that this amendment stands in the name of only the noble and learned Lord, Lord McCluskey, so it is not only rather late in the day that—
Noble Lords: No!
Lord Mackay of Drumadoon: I am sorry. Perhaps I am wrong and if so I stand corrected. Indeed, I see that the name of the noble Lord, Lord Macaulay, is also to the amendment. Although there may be some significance in the order in which the names appear, I fully accept that the amendment stands also in the noble Lord's name.
To return to what I was saying, this amendment comes very late in the day. It is not one upon which the Government until now have thought it appropriate to consult. It was obvious from the issues raised at Second

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Reading that there had been no consultation on the matter. The amendment is tabled. I am unaware of any support from other members of the judiciary that this significant change in practice should take place. As I recall, the noble and learned Lord, Lord McCluskey, in moving the amendment, based the case upon experience in New South Wales in particular where inadequate prison places had been provided before the legislation was brought into force. That is contrary to the position as we will have it. He also relied on experience in America. Having discussed that earlier, that too is contrary to what the Bill is about. The lateness of the amendment should hardly persuade the Committee that it is appropriate to incorporate this major change.
I have so many notes before me.
Lord Hope of Craighead: While the noble and learned Lord is sorting out his notes, perhaps I may try to assist the Committee. I apologise for not being present when the noble and learned Lord, Lord McCluskey, moved his amendment. While I do not support the amendment, perhaps I may make one or two points to put the matter in perspective. The amendment reveals a very important point about the difference in function between the judge on the one hand and government on the other. As far as concerns judges, continuity in sentencing patterns is of great importance. The judiciary is frequently criticised for failing to be consistent in the imposition of sentences. Nothing is more conducive to confusion in the public mind than a sudden reduction or increase in the nominal sentence that is imposed for a particular crime. That was what underlay the view of Lord Ross, which I entirely shared, and formed the basis of my advice to government, when asked, that it was not right for judges to alter their view about the length of sentence that was appropriate for a particular crime.
On the other hand, there is the responsibility of government to consider what should be done with the prisoner after the sentence has been imposed. If it is a custodial sentence part of the function is to keep the prisoner in custody in suitable conditions for as long as may be appropriate. But the very important philosophy that has underlay the policy until now is to try to rehabilitate the prisoner and, by that means, prevent reoffending. It was for that reason that the Kincraig Committee thought it appropriate to improve and redesign the measures for the early release of long-term prisoners but coupled with conditions to ensure that any such release was on licence.
I believe that the use of phrases such as "honesty in sentencing" and, with the greatest of respect to Lord Ross, the description of the function of a judge as a "charade", tend to overlook the fact that the nominal sentence remains with the accused until it has been exhausted. It is true that in many cases half-way through the sentence parole is given and the prisoner is released. If the prisoner reoffends or a licence condition is broken the prisoner can be brought back. One sees increasing use being made of Section 16 of the Prisoners and
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Criminal Proceedings (Scotland) Act 1993 to require prisoners who reoffend during a period after release to serve additional periods in custody.
I believe that nowhere more dramatic can this difference in function be seen than in the imposition of life sentences. What strikes one as a most extraordinary paradox is the flag that the Government appear to wave in this part of the Bill in favour of honesty in sentencing—that is to say, making sure that the prisoner remains in custody for as long as possible—while at the same insisting in Clause 1 that a life sentence should be imposed in a situation where everyone knows that no one will be required to serve a sentence of life imprisonment. It is a complete misnomer of the sentence that is imposed under Clause 1 and it demonstrates, without being unduly critical of the Government, that in this field the idea of searching for honesty in matching the time spent in custody with the length of sentence imposed by the judge is not something that is capable of being achieved if the broad aims of custodial sentences are to be maintained.
That is part of the background. That was the reason why I took the view—perhaps my successor will take the same view—that it was undesirable that judges should be told by Act of Parliament to reduce or increase the length of sentences to match what the Government believed to be appropriate for the early release, or for reducing the earliness of release, of prisoners who had been sentenced to custodial sentences.
I believe it was suggested by the noble and learned Lord that this matter could be dealt with in other ways. He suggested that it might be done by means of an act of adjournal, a practice direction or by the court. It is important to reflect on these matters because they place the amendment of my noble and learned friend in context. As far as concerns an act of adjournal, I considered that question in connection with another matter, which I need not describe to the Committee. I took the view that it was not right for the court in its administrative capacity—which is what an act of adjournal is all about—to direct judges what to do in their judicial functions. Sentencing is pre-eminently a judicial matter and an act of adjournal deals with rules of procedure. That is a quite different chapter as regards the way in which the court runs its affairs.
As far as concerns a practice direction, the objection was even stronger. A practice direction is made by the senior judge—which I was—in his administrative capacity. I took the view that it would be quite wrong for me by means of a practice direction to direct the judges, who were all independent, about what they should do in matters of sentencing. Indeed, I fully expected that any direction I gave on that matter would be disregarded, very properly, by those judges to whom it was directed. The only solution would be for the court by means of its decisions, taking full account of the structure of legislation for the time being and all its implications, to give guidance so that judges and sheriffs would know what the court regarded as the appropriate length of sentence. The noble and learned Lord the Lord Advocate will be able to confirm that machinery is now in place for the court to issue decisions which will have

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the effect of giving practice guidance to judges about the length of sentences. It may be that in the course of appeal hearings the court will by that means be able to give directions to judges as to what to do. But I warn the noble and learned Lord the Lord Advocate and others who may be interested that I believe the court would be very cautious about giving a direction of that kind because of the unpredictability of Government policy. In the few years that the Act has been in operation we have seen the sharpest change that I can recall in the treatment of the early release of prisoners. It would be highly embarrassing if the court reacted to the provisions enacted in the 1993 Act with a view to ensuring that longer sentences were pronounced and then found itself trapped by a change of government policy which could not be corrected until the court issued a fresh decision.
The purpose of these remarks is to say that, with great respect, my noble and learned friend has raised a very important issue, but it is not a matter for the judges. The judges would be well advised to maintain continuity in their sentencing and, in that way, ride out the sudden changes in policy, whatever they may be. If honesty is looked for it must come from government. It may be that the Government have fallen down by failing to explain to the public what policy they now want to abandon. I stress that the most dramatic example of a breach of the principle of honesty is to be found in Clause 1 which is the Government's flagship measure. It is extraordinary to find that principle being used as the reason for the whole chapter of measures that the Committee is about to consider.
9 p.m.
Baroness Carnegy of Lour: Before my noble and learned friend replies, I hope that he listened to the final sentences spoken by the noble and learned Lord, Lord Hope. They put the position most clearly and certainly helped me. However, in my view, if ordinary people in Scotland take the point that the Government, with due consideration to what the public want and what can be done, are changing policy about sentencing and changing the framework within which judges must operate, they allow or have inflicted upon them an amendment which says, "Yes, but don't do it. Make it as though it hadn't happened and then all will be well.". That is not the way Scots think at all. I do not understand why the English think like that, but we certainly do not.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord, Lord Hope, for his contribution and I pick up the point made by my noble friend Lady Carnegy. I venture to suggest that involving Clause 1 in the argument may not be entirely helpful. As I understand it—the noble and learned Lord, Lord McCluskey, will correct me if I am wrong—the new clause is not concerned with Clause 1.
As regards Clause 1, clearly one could have arguments till the cows come home as to whether calling a sentence which does not require the offender to remain in prison for the rest of his life a "life sentence" is not
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a sensible way to proceed. The noble Lord, Lord Thomas, has made that comment on more than one occasion. However, we have had mandatory life sentences and discretionary life sentences for some time. The use of that term in automatic life sentences was to fit in with the existing regime, adding, as I have indicated on more than one occasion, an additional safeguard when the necessary criteria are met to lead to the imposition of an automatic life sentence.
The situation we are dealing with here is somewhat different. As the noble and learned Lord, Lord Hope, correctly said, the net effect of the new clause would be a sudden reduction in the sentences of the court as soon as the section came into effect which would be entirely contrary to the approach that the Scottish courts have followed previously. I am not sure whether the noble and learned Lord, Lord Hope, was present throughout the discussions on the English Bill, but certainly I was, as were other noble Lords. More than one English judge, whether currently serving or retired, indicated that, notwithstanding the existence of a similar provision in the English Bill, there was concern that judges would not implement it because to do so would attract adverse press publicity which they would wish to avoid. That bears out the point that in the across-the-hoard manner which the amendment would involve, which would affect every determinate sentence imposed, such a sudden reduction, far from bolstering confidence in the sentencing which the Bill is designed to achieve, would have a contrary effect. I return to what was said by Lord Ross about the lack of confidence in the judiciary which the 1993 Act had as an unfortunate consequence of its provisions.
When one reads again the Kincraig Report, it is obvious that it was a very full discussion of the issues which arise. But it is equally obvious that, as with other matters we were discussing earlier today—namely, the review body for miscarriages of justice—there were strong views either way. Chapter 3 of the report sets out the views of those who, while criticising the current parole, favour its retention. Paragraph 3.11 records that a sizeable minority of witnesses were of the view that the parole system is fundamentally unsound and should be abolished, and it set out at some length the reasons for that. So there were different views which were considered carefully by the review committee. It came forward with certain proposals which the Government implemented. However, it has become obvious and clear from what Lord Ross said that it has unfortunately and inadvertently resulted in this charade with the much more concerning loss of confidence.
The noble and learned Lord, Lord Hope, commented that there was some concern about abandoning rehabilitation. I do not want to pre-empt in detail any discussion that we may have later tonight, but if one looks at the provisions set out in Clause 31(3), which indicate the extent to which the procedures by which early release days will be achieved, under paragraph (a) some of those are achieved for attaining the prescribed minimum standard and others will be achieved by having regard to the extent to which the prisoner's behaviour during the period has exceeded that standard.

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As we discussed earlier in relation to an amendment dealing with courses for sex offenders, one way of measuring whether the additional days under Clause 31(3)(b) have been earned will be the extent to which prisoners have co-operated with the programmes that are available. Obviously, if for whatever reason, they are not available for a particular prisoner, he will not be penalised for that. But if they are available and prisoners do not take part in them, that will tell against individual prisoners. If they are available and they attend and do not play a proper part, that too will tell against individual prisoners.
The Earl of Balfour: Perhaps I may interrupt the Minister. I speak as a layman who is not familiar with the procedures of the court. I feel that when the court imposes a sentence of, for example, eight years and the convicted person serves four years and is then allowed out of prison, even if his strict prison sentence comes to an end after four years—or half his sentence—that person should then be made to perform, for example, a period of community service. Some provision should be made whereby he is brought back into the community.
Somebody is put in prison for, for example, six years and is held there for six years. He then comes out of prison with no real trade. I believe—and I know that many of my friends in Scotland believe—that there needs to be greater emphasis on rehabilitation than on parole. When a person has served half his sentence, would it then be possible for him to spend another quarter of it being trained in the community under supervision, so that at least he has an opportunity to earn a living and move back into society?
A great many persons who have served a sentence of imprisonment end up committing another offence and going back to prison, which is tragic. Will my noble and learned friend consider the actual length of the sentence, rehabilitation and parole and bringing back that person into civilisation?
Lord Macaulay of Bragar: Before the noble and learned Lord replies, it may be helpful to the Committee if he speaks to the amendment instead of making a speech which is digressing all over the place.
Lord Mackay of Drumadoon: It is unfortunate that the noble Lord does not wish me to respond in my own way to the points raised by the noble and learned Lord, Lord Hope, who did offer, as I understood it, some support for my position but equally raised certain issues which it would be right that I should address. I did not table the amendment which has kept us engaged for 58 minutes; it was the noble and learned Lord, Lord McCluskey. I do not criticise him in any way because it is a very important matter indeed. Since it has been raised by him, it is right that it should be addressed. If Members of the Committee from any side intervene to raise issues, it is incumbent upon me to respond to them.
In fact, once or twice during the Committee stage of the Bill, I have been criticised for not responding at greater length than I did. I shall not mention any names, but it is mildly curious that I should then be accused of being long-winded when not some two hours ago I was
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accused of being the reverse. If that accusation had not been made, I might have been able to put my words more succinctly.
I deal with the point raised by my noble friend Lord Balfour which ties in very cleverly with the point with which I was dealing; namely, the question of rehabilitation. My noble friend suggests that at a certain point in the sentence, prisoners should be released from custody and serve some form of community service order, as I understand it, based in the community. Prisoners would reside in the community but would be subject to supervision and, more important, subject to training.
One of the merits of the Bill is that it will extend supervision of released prisoners long beyond the expiry of the determinate part. During the five-sixths of the sentence for which they are in custody, they will have to earn early release dates in the manner I have outlined. Obviously, long-term prisoners in Scottish prisons receive training in various forms. If for any reason they do not fit in with the work regime available to them, they would run the risk of not earning the early release days which they might otherwise have.
It is as much in the interests of those who run prisons as those who occupy them that work should be made available to keep them occupied and keep them working with their fellow prisoners with as reasonable an amount of camaraderie as is possible. That process will continue. Upon their release, those prisoners will be subject to supervision release orders which can extend long beyond the expiry of the five or ten-year sentence. We hope and believe that that offers a very good way of seeking to reintegrate the individual back into the community.
I am grateful to the noble and learned Lord, Lord Hope, for his explanation as to why it would be inappropriate for the court to proceed by way of act of adjournal or, indeed, by way of practice direction. The noble and learned Lord's views carry great weight and seek to support the view that I expressed earlier; namely, that the correct way forward is to leave it to the court to decide and not to seek to impose it upon the court by way of legislation.
I take the point that changes in early release regimes could undoubtedly, if they come too frequently, create a difficulty for the Appeal Court. However, I hope that the court will appreciate that, if senior judges are talking about this "charade" leading to a loss of confidence, the Government cannot stand back and allow that charade to continue for another five years before doing something about it. The media do not operate on that basis; the public understanding of the courts does not stand still; indeed, the public view of the courts moves on.
It is a practical problem which required to be addressed and that is why we seek to do it in Scotland in a way which has regard to the approach taken by the courts in ignoring the statutory provisions for early release which is contrary to the way that it has been done in Scotland. With what I have managed to say in response to the amendment—and I hope that I shall be forgiven for relying on the support of the noble and

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learned Lord, Lord Hope—I trust that Members of the Committee will appreciate that, while this was an important issue for the noble and learned Lord, Lord McCluskey, to raise, it would not be the right way to proceed for this Bill.
Lord McCluskey: In the light of the length of time taken over this matter, I do not propose to add anything further at this stage. I wish to test the opinion of the Committee.
9.16 p.m.
On Question, Whether the said amendment (No. 136A) shall be agreed to?
Their Lordships divided: Contents, 109; Not-Contents, 67.

Division No. 2

CONTENTS

Acton, L.

Kennet, L.

Addington, L.

Kirkhill, L.

Ashley of Stoke, L.

Lockwood, B.

Barnett, L.

Lovell-Davis, L.

Berkeley, L.

Macaulay of Bragar, L.

Blackstone, B.

McCarthy, L.

Blease, L.

McCluskey, L.

Borrie, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

Mackie of Benshie, L.

Bruce of Donington, L.

McNair, L.

Calverley, L.

McNally, L.

Carlisle, E.

Mallalieu, B.

Carmichael of Kelvingrove, L.

Mar and Kellie, E. [Teller.]

Carter, L.

Merlyn-Rees, L.

Chandos, V.

Meston, L.

Cocks of Hartcliffe, L.

Milner of Leeds, L.

Craigavon, V.

Monkswell, L.

Currie of Marylebone, L.

Morris of Castle Morris, L.

Dahrendorf, L.

Murray of Epping Forest, L.

David, B.

Nicol,B.

Desai, L.

Ogmore, L.

Donaldson of Kingsbridge, L.

Paul, L.

Donoughue, L.

Peston, L.

Dormand of Easington, L.

Plant of Highfield, L.

Dubs, L.

Ponsonby of Shulbrede, L.

Ezra, L.

Prys-Davies, L.

Falkender, B.

Ramsay of Cartvale,B.

Falkland, V.

Rea, L.

Farrington of Ribbleton, B.

Redesdale, L.

Freyberg, L.

Richard, L.

Gallacher, L.

Rochester, L.

Gladwin of Clee, L.

Rodgers of Quarry Bank, L.

Gould of Potternewton, B.

Rogers of Riverside, L.

Graham of Edmonton, L. [Teller.]

Russell, E.

Grenfell, L.

Sefton of Garston, L.

Grey, E.

Serota, B.

Hamwee, B.

Sewel, L.

Hanworth, V.

Shepherd, L.

Harris of Greenwich, L.

Smith of Gilmorehill, B.

Haskel, L.

Stoddart of Swindon, L.

Hayman, B.

Strabolgi, L.

Hilton of Eggardon, B.

SymonsofVernham Dean, B.

Hollick, L.

Taverne, L.

Hollis of Heigham, B.

Taylor of Blackburn, L.

Holme of Cheltenham, L.

Thomas of Gresford,L.

Hooson, L.

Thomas of Walliswood, B.

Hughes, L.

Thomson of Monifieth, L.

Jay of Paddington, B.

Thurso, V.

Jeger, B.

Tope, L.

Jenkins of Putney, L.

Tordoff, L.

108

Wedderbum of Charlton, L.

Williams of Elvel, L.

Whitty, L.

Williams of Mostyn, L.

Wigoder, L.

Winchilsea and Nottingham, E.

Winston, L.

Williams of Crosby, B.

Young of Dartington, L.

NOT-CONTENTS

Ailsa, M.

Inglewood, L.

Anelay of St Johns, B.

Jenkin of Roding, L.

Astor of Hever, L.

Kimball, L.

Attlee, E.

Lindsay, E.

Balfour, E.

Long, V.

Beloff, L.

Lucas, L.

Belstead, L.

Lucas of Chilworth, L.

Blatch, B.

Luke, L.

Brentford, V.

Lyell, L.

Bridgeman, V.

McColl of Dulwich, L.

Brougham and Vaux, L.

McConnell, L.

Byford, B.

Mackay of Ardbrecknish, L.

Carnegy of Lour, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Carnock,L.

Chesham, L. [Teller.]

Mackay of Drumadoon, L.

Clark of Kempston, L.

Marlesford, L.

Courtown, E.

Miller of Hendon, B.

Cranborne, V. [Lord Privy Seal.]

Mountevans, L.

Crickhowell, L.

Northesk, E.

Cross, V.

Oxfuird, V.

Dean of Harptree, L.

Rennell, L.

Denbigh, E.

Renton, L.

Dixon-Smith, L.

Seccombe, B.

Dudley, E.

Sharpies, B.

Eccles of Moulton, B.

Shaw of Northstead, L.

Elles, B.

Skelmersdale, L.

Ferrers, E.

Stewartby, L.

Geddes, L.

Strathcarron, L.

Harlech, L.

Strathclyde, L. [Teller.]

Henley, L.

Thomas of Gwydir, L.

Hogg, B.

Trumpington, B.

HolmPatrick, L.

Vivian, L.

Home, E.

Wise, L.

Hope of Craighead, L.

Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.
9.25 p.m.
Clause 30 [Application of provisions with respect to early release]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 137:
Page 35, leave out lines 31 and 32 and insert—
(""prescribed minimum standard" means an absence of proven misconduct reports").
The noble Earl said: I promise not to filibuster. The last amendment was a fine example of how to do so. Amendment No. 137 launches the Committee into the proposals for change in the system for liberation from prison. The prisoner's lib date is very important to him, his family, and the entire prison system. The amendment establishes that the first six days early release within a two month period are to be earned by objective criteria. Good behaviour is defined as abiding by the recently re-enacted prison rules for Scotland. Conforming to the prison rules is a concept easily understood by everyone inside and probably outside, prison, as is failing to do SO.
During debate on a similar amendment to the English Bill, it was established by the noble Baroness, Lady Blatch, that the prescribed minimum standard would be slightly higher than not appearing before the governor on a report and the charge being proved.
In England, we seem to be heading for subjective criteria with all the unhappiness and appeals to which that will lead. If we have to have this new liberation scheme in Scotland and in Scottish prisons, it is important that it is seen to he fair and workable. That means that there must be objective criteria obviously recognisable to all. Despite their offences against others, offenders, and prisoners especially, have an acute sense of injustice to themselves especially as a group. Great care has to be taken to keep a prison on an even keel. Unless we adopt these objective criteria, this measure is likely to achieve the opposite. I beg to move.
Lord Macaulay of Bragar: I give general support to the observations that the noble Earl made. I do not wish to repeat what he said. We have had an example this evening of going over the same ground three or four times. I do not wish to repeat the exercise.
Lord Mackay of Drumadoon: I am happy to take the implied compliment from the noble Lord that it is not necessary to go over the same ground in relation to this matter. The amendment seeks to define the prescribed minimum standard as,
"an absence of proven misconduct reports".
We do not believe that it would be desirable to adopt such a narrow definition. Following on from what I referred to recently, we firmly believe that the earning of early release should be a positive matter. It should not be just a question of adhering to prison discipline but of demonstrating positive good behaviour and making constructive use of time in prison, whether that is by way of work programmes or programmes designed to address offending behaviour—on drug addiction, anger management, and so on. We believe that these programmes offer great advantage to prisoners. They should be encouraged to attend them and play a meaningful part in them when they have the opportunity to do so.
As I made clear, we fully accept that such programmes are not yet as widely available as they might be. However, that is no reason not to take a very positive measure to ensure the prisoners' co-operation with programmes where they do exist. Where the appropriate programmes are not available to prisoners, there can be no doubt that they will not be penalised in any way in terms of early release.
The approach that we take is intended to set out a much wider definition of the prescribed minimum standard, one which will provide an incentive to prisoners not only to obey the law of the prison but to make a positive effort to co-operate with the prison regime, the prison officers working there and those who come in from the social work department and other agencies to help to educate prisoners and to address any medical or other problems that they have. I hope, therefore, having explained in greater detail what lies
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behind the provisions in subsection (3) of Clause 31, the noble Earl will not feel it necessary to press this amendment.
9.30 p.m.
Lord Thomas of Gresford: I support my noble friend Lord Mar and Kellie in addressing this amendment. The noble and learned Lord the Lord Advocate relies upon rules. The problem about rules is that, so far as his explanation goes, it would be impossible to set standard rules that will apply to all prison establishments.
If what the noble and learned Lord has in mind is that a prisoner will attend various programmes—he referred to drug addiction, anger management and matters of that sort—how can there be rules which apply to premises or prisons which do not have such programmes available? There is an important point of principle here. These programmes, which are not as yet in place, will not provide a common standard to all those serving a sentence of imprisonment.
On the other hand, the proposal in my noble friend's amendment is that misconduct reports should be a test if they are proved; that is to say, if through the disciplinary procedures of the prison a prisoner is shown to have misbehaved in some way, then he will not have come up to the standard of behaviour referred to in Clause 31(2).
There is at the present time a well-known and fair system of procedure whereby disciplinary offences are brought before a governor or a person standing in for the governor and those offences will be properly established, on evidence; the nature of the charge will be placed before the prisoner concerned and he will be given the opportunity to respond. That is a fair and just system which can apply across the board. Relying on some vague system of programmes which are not as yet in place and which, in any event, will vary from place to place is not fair. I support the amendment moved by my noble friend.
Lord Mackay of Drumadoon: I apologise to the noble Lord, Lord Thomas, for not having seen that he wished to contribute to the debate; otherwise I would have waited to hear his remarks.
Perhaps I should make it clear that in the next group of amendments I intend to set out in some detail the procedure that will be followed in dealing with the provisions for gaining early release days. It might be wrong to anticipate our discussions on that matter lest I be criticised again for repeating myself.
It might be of assistance if I gave some instances of the prescribed minimum standards of behaviour which will be set out in prison rules. They obviously involve the precise detail of the rules which are made by the Secretary of State dealing with matters such as the use of violent or threatening behaviour towards fellow inmates or staff, intimidation and the like, co-operation with staff, showing the respect for the property of other prisoners that it deserves and abstaining from drugs and alcohol. The noble Earl will be aware that mandatory drug testing is now in place in some prisons in Scotland. That provides a fair mechanism for establishing whether

111
such abstinence takes place. Therefore, it is possible to set out in rules where the minimum standard has not been attained.
Exceeding the minimum standards will need to be looked at in the light of a particular prisoner and the prison in which he is housed. In my submission, there is absolutely no reason why procedures for assessing various types of behaviour cannot be evolved and administered in a fair manner. There is the need for prisoners to participate constructively in the planning of how they serve their sentences. The noble Earl will be aware that prisoners are regularly involved in such discussions. Their effort and productivity in workshops to which they are allocated to work and their participation in courses are necessary.
It is easy to be despondent or critical when new ideas are promoted. I like to take a slightly more optimistic view and believe that senior officers and governors who will be involved in administering the system are more than capable of acting fairly. I like to think that prisoners will respond positively, conforming with the prescribed rules and exceeding the minimum prescribed standards in the manner to which I referred.
I fully accept that the noble Earl, Lord Mar and Kellie, puts the amendment forward in a constructive mood, but we believe that restricting the provision to an absence of two misconduct reports would be a serious mistake. Far from encouraging good behaviour in prisons, it would send a message to prisoners that provided they abided by the strict letter of the law that would be all that was expected of them. We do not think that approach is sensible.
The Earl of Mar and Kellie: Having listened to the Minister, I do not believe he fully understood what I intended in my amendment. "Prescribed minimum standards" are only the standards to be achieved in the first six days of the 12 which a prisoner would be allowed to earn in a two-month period. I expect that the second six days would have to be earned for above-average behaviour. I do not see that as too much of a problem.
The reason I brought the amendment forward is that in order to explain the rules to prisoners—and I am considering how I would set about doing that as a member of the visiting committee at Glenochil young offenders institution—as a VC member I, as well as the prison officers, would have to try to explain a criterion which does not exist. It is more than not being on report, but unless matters are completely written down, the system will be difficult to operate.
I shall not press the amendment. I suspect that the debate will continue at Report stage. I should be interested in hearing what more the noble and learned Lord has to say about the operation of the scheme. Therefore, at this point, with reluctance but with enthusiasm for the future, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sewel Lord Sewel moved Amendment No. 138:
Page 35, line 31, after first (" "prescribed" ") insert ("independent person" ").
The noble Lord said: This amendment seeks to ensure that the person who is to grant early release days to a prisoner should be independent. I believe that the case for that is clear when one starts to reflect upon the dynamics of prison life. Clearly, the early release provisions must be set in a framework of independent adjudication in order to ensure that prison discipline will not be adversely affected.
I believe that it is inappropriate for prisoners to have their early release days determined by individuals who are not independent of the prison system itself. Why is that? There are two reasons. One is that when there is closeness between personnel—the prisoner and those within the prison system who are making a very important decision for the individual prisoner—there is a very real risk of opening up two possibly highly dangerous avenues of behaviour.
First there is the possibility quite simply of threat. A prisoner with the possibility of early release may have unsavoury friends on the outside who can put pressure on those within the Prison Service responsible for making the recommendation to ensure that the prisoner receives early release days, perhaps in some cases when the prisoner's behaviour does not justify it. That exposes the individual prison officer to an extremely dangerous risk. I do not wish to overstate it but the risk is certainly there. A glance at where our prisons tend to be situated shows how easily that could happen.
Secondly, it works the other way. The prison officer can be exposed to the charge of favouritism if he makes a recommendation which results in one person obtaining early release days and another person does not. There is a risk of favouritism. How could that reasonably be resolved in such an intense and introverted "total" institution as a prison?
The amendment ensures that one can steer clear of that kind of high risk—the relationship of threat and the relationship of favouritism—developing. One can step back and have an independent person involved in the assessment of whether or not the early release days should be granted. The amendment is of significant importance in terms of the proper, good and orderly management of the prison system. In speaking to this amendment, I speak also to the consequential amendments, Amendments Nos. 143 and 144. I beg to move.
Lord McCluskey: My amendments, Amendments Nos. 145 and 146 have been grouped with this amendment. There is not very much to add. I simply say that the idea that there should be an independent element was massively supported by those who were consulted or who chose to make representations to the Government.
My amendments are concerned with providing an independent element. I am not sure that Amendment No. 146, which refers to a sheriff or sheriff principal, does not go too far. But I seek to emphasise the point that one needs a kind of judicial involvement in making

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what is essentially a judicial decision. It is an important decision in the sense that if it goes the wrong way for the prisoner, it results in his spending a much longer time in prison.
I deplore the notion that prison warders should become the judges of matters affecting people on their own landings or even within their own prison. That cannot be right. I hope that the Government will think carefully before proceeding with the scheme proposed in the Bill.
9.45 p.m.
The Earl of Mar and Kellie: My Amendment No. 142 is grouped with Amendment No. 138. By comparison with the 1993 liberation scheme, the proposed early release scheme will be complicated to operate. The complication begins with the Bill when it fails to define who the "prescribed" person will be. The assumptions are that it will be devolved to a gallery officer or, in the case of a young offenders' institution, a residential officer.
Why do we have to proceed on assumptions? Other amendments propose that the prescribed person be independent of the Scottish Prison Service. Amendment No. 142 proposes that the Parole Board for Scotland extend its duties to adjudicate on the early release scheme. The Parole Board for Scotland has complete experience of the issues surrounding the liberation practice. The board could easily be expanded to take on this new function. It will be advantageous for prison staff not to have to act as judge and jury, as the noble and learned Lord, Lord McCluskey, said. After all, part of a prison officer's job is to help a prisoner cope with his sentence and punishment. An angry prisoner is difficult enough to calm down, without the prison officer or his immediate colleagues being the cause of that anger.
Lord Thomas of Gresford: I support these amendments. What I find offensive—perhaps the noble and learned Lord the Lord Advocate could address this point in his response—is that what the noble and learned Lord, Lord McCluskey, rightly described as a "judicial decision" taken either by the warder on the landing or on his advice, may be taken by the employee of a private firm who has a contractual relationship with the Government. To hand over to employees of a private company the judicial power to determine how long a person stays in prison is completely new and, to me, offensive. Is that what is being suggested? Will Group 4 employees be able to determine how long a person stays in prison?
Baroness Carnegy of Lour: I listened with some care to the proceedings in relation to this aspect of the English Bill. Various matters make me anxious. However, perhaps I can listen to the response of my noble and learned friend as to how the process will work and then ask a question.
Lord Mackay of Drumadoon: In replying to Amendment No. 138, with the leave of the Committee
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I shall reply also to Amendments Nos. 142 to 146, all of which have been spoken to by one or other Members of the Committee.
Amendments Nos. 138, 143 and 144 in the name of the noble Lords, Lord Sewel and Lord Macaulay, seek to make the award of days of early release the function of an independent prescribed person, leaving it to prison rules to specify who that prescribed person will be. On the contrary, Amendment No. 142 in the name of the noble Earl, Lord Mar and Kellie, would have the effect of making the Parole Board responsible for such awards during the first 12 months of the sentence, though I assume—perhaps it can be confirmed in due course—that the intention is that the Parole Board would handle all such awards.
Amendment No. 145, tabled by the noble and learned Lord, Lord McCluskey, would prevent the prison rules prescribing the person who would make the assessment and provides that either a sheriff or a sheriff principal should consider and make recommendations on appeals regarding assessments. It is obvious, therefore, that among the amendments before the Committee there is a range of views as to how this matter might be approached. Against that background it may be helpful if I explain in a little detail why the Government have chosen the system set out in the Bill. Before I do so, I remind the Committee that rules made under the Prisons (Scotland) Act 1989, which is referred to in subsection (5) of Clause 30, would require to be laid before the House and would be subject to the negative resolution procedure.
The Bill reduces the opportunity for early release in the manner I described earlier and will require that it is earned by good behaviour in prison. Since that is the basis for early release, it appears clear to the Government that those based in the prisons are best placed to make the individual assessments that are necessary. I need not explain to the Committee the structure and management within prisons, but there are a number of governors under the senior governor and below them prison officers of different ranks. Prison staff work with prisoners on a day-to-day basis and are trained to have the necessary expertise to assess the behaviour of prisoners and to gauge the progress individual prisoners are making. The more senior the rank and the greater training and experience the prison officer or governor has had, so the ability to carry out that exercise will increase.
Even if the function which would require to be discharged to fulfil the provisions of subsection (3) of Clause 31 were to be handed to an outside body—whether a sheriff, the parole board or whoever—such a body or individual would be reliant on reports coming from prison staff. The Bill calls for a process of continuous assessment, with up to 12 days being capable of being awarded to each prisoner for every two months of the prison sentence. On current prison populations, that implies somewhere in the region of 30,000 decisions to be made each year. It may assist the Committee to know that the Parole Board of Scotland currently sits some 24 times a year to consider between 500 and 700 cases where determinate sentences have been imposed. The number varies from year to year as

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the prison population comes towards the period for eligibility for early release. It is clear that the Parole Board could not be expected to take on a case load of the nature predicted under the Bill.
Nor do we believe there is any need for a body of the nature of the Parole Board to do so, the assessments involving, as they do, whether a prisoner's behaviour in custody over a two-month period would merit 12 days' early release. If the idea of someone independent from the parole board was to be selected, one would require him to create a cadre of independent persons with a back-up staff quite enormous in number; so also if sheriffs or sheriffs principal were to be involved.
We propose that the assessment procedure be laid down in prison rules, subject, as I have already indicated, to parliamentary scrutiny. We envisage that the governor or another senior manager in the prison will convene an assessment board to consider reports from relevant staff on each prisoner according to a range of criteria set out in the prison rules which are to be made. Decisions on the award of early release will be made following the meeting of this internal assessment board. If a particular prisoner is dissatisfied with the decision we envisage that a three-stage appeal process, based on the existing complaints procedure in Scottish prisons, will apply. As part of that appeal process the rules will empower the Secretary of State to appoint a person to consider the appeal and report to him. In all normal circumstances he will ask the prison complaints commissioner for such a report. The commissioner will provide an independent element to the process if that proves to be necessary. He will not have power to overturn the governor's decision by his own hand but will expect the chief executive of the Scottish Prison Service, acting on behalf of the Secretary of State, to take account of any factors which he may identify before any final decision is made.
We believe that to ask sheriffs or sheriffs principal to consider appeals regarding early release would be to mix the different roles of those involved in the criminal justice system in an inappropriate way. Unlike the prison complaints commissioner, they are not used to dealing with complaints about decisions regarding behaviour in prison. Moreover, the need for urgent decisions on such appeal cases would represent an unwelcome burden for sheriffs at a time when court resources in most parts of the country are reasonably stretched.
Our position is that no one outwith the Scottish Prison Service will be in a position to make the necessary assessment of the prisoner's behaviour on which the initial award of days of early release depend. We accept that there is a case for independent scrutiny, but we believe that that will come from the involvement of the Scottish prison complaints commissioner who has been operating recently and whose work commands respect.
I now deal with a number of points raised by Members of the Committee. The noble Lord, Lord Thomas, indicated that he considered it offensive that an individual employed by a company which had a contractual arrangement with the Government should have any role to play in these matters. As Members of
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the Committee will know, there are as yet no private prisons in Scotland. But the comment made about offence may be—I do not do so—turned round the other way. People running private prisons in England are trained: they are performing a very important function. I am unaware of any evidence which suggests that the fact that they are working for a commercial company rather than the prison department causes them to operate in a different way than they might otherwise do.
I am not sure what lay behind the comment of the noble Lord, Lord Thomas. I do not know whether he is suggesting that an individual employee might be more inclined to refuse early release days so that the prisoner stayed in prison longer and his employer earned more money, or whether he is suggesting the contrary. I suggest that because private prisons are subject to supervision, it would be quite inappropriate to suggest that those employed at governor or senior management grade in those prisons are any less capable of doing this work in a responsible manner than their colleagues who are currently employed by the prison department.
Dealing with the points raised by the noble Lord, Lord Sewel, I hope that he will accept that because the assessment board will be detached from immediate contact with the prisoner—in other words, it will not be the prison officers working on individual wings who will be carrying out the assessments that will require to be made under Clause 31(3)—the risk of graft or favouritism will be minimised, if not completely eliminated. Whoever is to do the assessment will clearly require reports from the wings. I suggest that governor grades would be in a far better position to be alive to the risk of graft or favouritism than would an independent body or sheriff at some distance from the prison who could not begin to have the same knowledge of staff as the prison governor. Therefore, although I understand why the noble Lord raised these matters, I believe that the danger of any improper pressure or favouritism is fairly minimal. I believe that that was part of the concern which lay behind the noble and learned Lord, Lord McCluskey, tabling his amendments.
Clearly, this is a new procedure which will have to be carefully worked out with those who run the prisons. The procedure will require incorporation in the prison rules which will be brought to Parliament and laid before the House. However, in my submission, if that is done there is no need to accept any alteration in the procedure that we propose. Therefore, I hope that all noble Lords will withdraw the amendments which stand in their names.
10 p.m.
Lord Thomas of Gresford: Before the noble and learned Lord sits down, perhaps I may ask him a question. He said that those who are based in a prison will make the decision. That implies that if a prison is run by a private company—I use Group 4 simply as an example—decisions are made by employees of the company. If there is a procedural unfairness in what those employees do, would the noble and learned Lord consider that to be a matter of public law and therefore subject to judicial review? I ask for enlightenment.

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Would the noble and learned Lord consider that that was a matter which would breach the European Convention on Human Rights? These are decisions about the liberty of the subject. Does he think it right that such important decisions should be taken by private persons, who are not employed by the state, who are not public servants? Does he believe that people who are simply under a contractual duty to their employer can take decisions to the extent that a prisoner can be held in prison for days, weeks or even months without any proper recourse? Is that a matter of public law? Is it subject to judicial review? Perhaps the noble and learned Lord could help me.
Lord McCluskey: Before the noble and learned Lord replies to that, perhaps I may draw the Committee's attention to the White Paper and the summary of resource implications, which at paragraph 16.5 reads:
"It is envisaged that any new prisons required would be privately financed through the Private Finance Initiative … In broad terms the cost of each new 500 place prison built under the PFI might add 10–15 per cent. to the running costs of the Scottish Prison Service"—
that is, it will add between £15 million and £20 million per annum. Are the Government saying that for the 2,200 people who are expected to be added to the prison population, four or five new PFI prisons will have to be built? Are the Government saying that within those prisons the regime will not be conducted by privately employed contractors and their employees?
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for drawing attention to paragraph 16.5, which reads:
"It is envisaged that any new prisons required would be privately financed through the Private Finance Initiative".
That initiative has been used in a number of ways throughout the United Kingdom, in particular in the health service, without the need to privatise all the staff who work there. In broad terms the cost of each new prison will be as the noble and learned Lord has read out. It will add 10 per cent. to 15 per cent. to the running costs of the Scottish Prison Service, which is the agency under the Director of the Scottish Prison Service that administers the prisons at the present time. Those costs in the current year are approximately £152 million. That is an increase in the current budget of the Scottish Prison Service.
As I understand it—if I am wrong, I shall certainly inform the Committee as soon as possible—the fact that a prison is financed by a private finance initiative does not necessarily mean that it requires to be run by a private company such as Group 4 or anybody else. Therefore, the answer to the question posed by the noble and learned Lord, Lord McCluskey, is that that will require to be worked out in the fullness of time against the background that these new provisions will not be brought into force unless there are prison spaces available. However, the effect of the amendment that has been passed is that prisoners will now serve a shorter term than they would otherwise have served. Consequently, the need for paragraph 16.5 may be lessened assuming that the Bill remains in its present form.
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I resist as strongly as I can the suggestion that we have any reason to believe that the standards followed in a privately run prison are different from those to be found currently in Scotland under the director of the Scottish Prison Service. To explain that further, perhaps I may provide details of the appeal procedure before I turn to the issues of judicial review and the European Convention on Human Rights. After the initial appearance before the assessment board, the first avenue of appeal will be the prison internal complaints committee. It is proposed that each prison should have such a committee which will be chaired by a senior manager and will have a minimum of three members. The proposal is that the members involved will have had no prior involvement with the particular prisoner who has brought the matter before that committee.
Lord Harris of Greenwich: Perhaps I may put one question to the noble and learned Lord. Precisely who are the three members? I understand the position of the chairman, to whom the noble and learned Lord has referred, but who will be the three members? Will they be employees of the Prison Service or some other category of person?
Lord Mackay of Drumadoon: My understanding is that they will be employees of the Prison Service and that that will be made clear in the prison rules to be laid before Parliament before the procedure comes into force.
If I go through the various appeal procedures I hope that that will become clearer. If following consideration of his or her case by the complaints committee a particular prisoner remains dissatisfied, he or she can make a further appeal to the governor in charge who will reconsider the case. It should be noted that at the present time half of all general complaints under the existing complaints procedure when put to an internal complaints committee are resolved at that stage and do not require to go to the governor. If having had his or her case reconsidered by the governor the prisoner is unhappy, the prisoner can appeal to the Secretary of State. At the present time, that is handled on his behalf by the chief executive of the Scottish Prison Service who acts with the authority of the Secretary of State. It is at this stage that the Scottish Prisons Complaints Commissioner becomes involved in the manner I described earlier.
Lord Harris of Greenwich: Perhaps I may be absolutely clear. Will there will be a requirement at every level of the appeal process for a written record to be maintained by those who are adjudicating the appeal? Will that be made available to any lawyer who is engaged by the prisoner who may want to make an application for judicial review?
Lord Mackay of Drumadoon: The noble Lord, Lord Harris, anticipates precisely what I was going to say. I was about to turn to the issue of judicial review. All of these are exercises of statutory function and therefore all are susceptible to judicial review. Because the courts could not begin to address the merits or otherwise of a

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judicial review without proper documentation, clearly all this will be required to be documented. Indeed, if one goes back to the initial assessment panel, it must have documents in front of it before it makes its decision. If its decision is to be appealed to the internal complaints committee, the internal complaints committee will need to know the information upon which the assessment panel proceeded, what decision it reached and so forth.
Lord Thomas of Gresford: The noble and learned Lord is dealing with interruptions with enormous patience and I apologise to him. The figure which was given in relation to the English provisions was that in the average prison there would be something like 40 decisions a week. That is the figure which sticks in my mind. There would be 40 decisions a week, each one recorded in case there is an appeal. If there is an appeal each one is recorded for the next stage and for the next stage. What additional allocation of funds and resources for building storehouses in which to store all these records are to be made?
Lord Mackay of Drumadoon: I hope that the prisons will embrace information technology in a way in which many branches of government have done with the encouragement of the Government. There may be certain practical problems in setting up the procedure, but increasingly courts seem to manage all the paperwork with the benefit of information technology. I have no reason to doubt that the prison authorities can do likewise.
I turn to deal with the issue of the European Convention on Human Rights. The Government have obviously considered the matter carefully. The position is quite clear that no infringement would arise because any days lost by a particular prisoner, having failed to gain the days for whatever reason, would still fall within the envelope of his original sentence. Clearly, that is something which happens at the moment as regards misconduct and therefore no European convention concerns arise. However, they will be looked at again, as is normal with all government legislation, before the prison rules are laid before Parliament.
I indicated that if I was wrong about the PFI initiative I would inform the Committee as soon as I could. I understand that if PFI prisons come into operation in Scotland they will be operated by the private sector under contract but subject to prison rules—
Baroness Trumpington: Order!
Lord Mackay of Drumadoon: I very much regret the sotto voces that I am hearing. I was asked a question and I indicated my understanding of the answer, but I indicated in the same breath that if I were wrong I would inform the Committee as soon as I could. The fact that I am now doing so does not seem to me to merit the kind of sotto voces that I regret to say I am hearing.
Perhaps I may continue. We envisage that the assessment of early release will be made by the controller, who will in fact not be in the employ of
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the company concerned but will be a Crown servant appointed by the Secretary of State to deal with disciplinary matters in the prison which is run by the private sector. Therefore, the concern which the noble Lord, Lord Thomas, mentioned earlier, about certain matters which were causing him a degree of offence will, as I understand it, not come to pass.
Obviously, this will have to be set out in the rules because those prisons will be subject to prison rules which are laid before Parliament and subject to the negative resolution procedure in accordance with the procedure set out in the 1989 Act.
I regret that it has proved necessary to go into the matter in a little detail, but I repeat what I said earlier. I believe that the procedures which we propose are a sensible way forward and none of the amendments would achieve a better and more practical result.
10.15 p.m.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, unless I misheard him, he affirmed that the process of judicial review will apply to the procedure in any case arising under the legislation which the Government now propose. If so, how many cases of judicial review have been taken in England to date? It is not a very popular procedure in Scotland. Can the noble and learned Lord give some figures relating to judicial review arising out of prisons and the matters which we are discussing?
Lord Mackay of Drumadoon: I cannot give figures for judicial review arising out of the matters that we have been discussing because, as I understand it, there will have been no such judicial reviews in England dealing with similar provisions. However, judicial review arising out of prison matters is not uncommon north or south of the Border. If the noble Lord wishes statistics for the past five years of how many judicial reviews individual prison departments have been required to deal with, I shall be happy to arrange for officials to prepare that information and to send it to him. A copy of the letter will be placed in the Library.
Lord McCluskey: I hope that the noble and learned Lord the Lord Advocate will acknowledge that, when he was critical of those who interrupted or spoke from a sedentary position, that did not include me.
The noble and learned Lord the Lord Advocate acknowledged, and rightly so, at the earliest possible opportunity that the position as regards the private finance initiative is that when the prisons are built through the PFI they are likely to be staffed by privately employed people. Therefore, the point made by the noble Lord, Lord Thomas, is a valid one.
I return to the White Paper, which envisages that the effect on the prison population in the first year will be an increase of 1,000. As the noble Lord, Lord Macaulay, reminded us earlier, the current population is about 6,000. Therefore, there will be an increase of one-sixth—1,000 in the first year.
At present, the prison population is about 11 or 12 per cent. over capacity. Accordingly, it follows that not fewer than two new 500-place prisons will be

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required. As I understand the Government's public announcements on the matter—and I can quote them if required—only one 500-place prison is contemplated to be built before the end of the century. That raises the important question as to where all the extra prisoners are to go.
The statement at paragraph 16.4 of the White Paper is that the numbers will rise to 2,200 by the end of the fifth year, so by the end of the century we shall have something in the order of 2,000 extra prisoners. My own view is that that is an underestimate, for reasons into which I need not go at this late hour of the night. Accordingly it follows that a vast number of private finance initiative prisons will have to be built. That must be so because the Government have made it abundantly clear—and again, if required, I can give chapter and verse—that there will be no increase in public expenditure in order to finance the building of extra prisons. They are to be built through the PFI. Therefore, private prisons are to be built.
That brings me back to the end of my intervention and to the point raised by the noble Lord, Lord Thomas of Gresford. It is not only a question of standards. No one doubts that privately employed people can be as honest and uncorrupt as those who are employed in the public service. It is a question of philosophy and culture. It is a question as to whether servants of the state are charged with the responsibility of looking after prisoners or the staff of B&Q or Woolworths.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, I should point out that I did not intend to refer to him earlier. Although he is sitting too far away from me for me to hear anything that he may say, I do not for a minute believe that he would intervene in the nature of some of the comments which, unfortunately, my left ear was being bombarded with at the time that I made the comment.
It is instructive to look at paragraph 16.4 of the White Paper because, in the second to last line, it indicates that if there were a larger reduction, say, by around one third, the increase over five years would only be 700. Of course, the net effect of the amendment moved by the noble and learned Lord and accepted by the Committee would have approximately that effect. Therefore, one has to wonder why we have spent the last 40 minutes dealing with this allegedly huge increase in the prison population.
However, against the possibility that the Bill might return to its original form, perhaps I may say again what I ought to have made clear earlier when responding to a point raised by the noble Lord, Lord Thomas. In a prison which is privately run, the proposal is that assessments on early release will be made by an individual who is a Crown servant and who is appointed for the specific purpose of dealing with that and disciplinary matters. Therefore, the constitutional objection advanced by the noble and learned Lord and supported by the noble Lord, Lord Thomas, earlier is one which will not arise in actual fact. It is important for all of us to remember that the precise details of the procedure will need to be
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set out in prison rules. I hope, therefore, at this late hour of night, that the position will be clear to all Members of the Committee.
Baroness Carnegy of Lour: I have heard no mention of the particular point which concerned me while listening to the debate on the English Bill; namely, where, if anywhere, is there the possibility of an assessment of risk to the public in the case of the longer-term prisoners who are being considered for release? As I understand it, it is done at present by the Parole Board. But where does that happen? Prison officers are trained to assess behaviour; and indeed, they already do so. If the programmes exist for prisoners to prove that they are intending to mend their ways they can do so. But where is the assessment of risk? Does that feature anywhere in the clause, or is it completely excluded? If that is the case, is there not some danger to the public that did not exist before?
My noble friend Lady Blatch has said that she will look into the matter as regards England and Wales to see whether the Parole Board might have a locus in the matter. I know that the Scottish Parole Board is a rather different animal and we have heard that it meets much less often. However, is that relevant to this clause? I should have thought that it was, but it has not been mentioned. It seems to me to be important.
Lord Mackay of Drumadoon: My noble friend has raised a concern about which I know she feels most strongly. The whole nature of the procedure set out in Clause 31 will do away with the possibility of prisoners being released at 50 per cent. of their sentence, and between that and two-thirds of their sentence, when a risk assessment is carried out by the Parole Board. On the contrary, the proposal is that they will go beyond the two-thirds to five-sixths and will be released at that stage, subject to supervision requirements which, as I said earlier, can go beyond the expiry of a determinate sentence.
It is not intended that a similar exercise should be carried out in the assessment procedure as is carried out by the Parole Board. I do not understand why the noble Earl, Lord Mar and Kellie, in speaking to his amendment thought it would be appropriate that in each and every case the Parole Board should carry out an assessment of entitlement to early release days—I refer to Clause 31(3)—and that a risk assessment is carried out every time it has to be assessed whether six or 12 days are to be awarded.
We believe that if a longer period of a sentence is spent in custody, and if there is a longer period of supervision running from the five-sixths point, that affords perfectly adequate protection to the public which is equal to, if not better than, the procedure which applies at the moment where many prisoners are being released after they have served between half or two-thirds of their sentence, and all of them are being released at two-thirds of their sentence without there being any need for a risk assessment and without the necessary supervision continuing beyond the expiry of

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a determinate sentence. Therefore the regime we are discussing will be different in that respect from that which currently applies.
Lord Hope of Craighead: I hope I may intervene to make a point which I believe is relevant to what the noble Baroness said. As I understand the English provisions, at Clause 31 of the English Bill, there was a provision that every long-term prisoner would be subject on release to a period of supervision. The noble and learned Lord used the word "supervision" in his reply to the noble Baroness which suggests that supervision will be available to everyone. As I understand the Scottish Bill, supervision after release is only to be provided if the court decides that it should be provided. The court has to make that decision at the outset when it is imposing sentence. At Second Reading I raised this point with the noble and learned Lord and asked him to consider whether the English position was to be adopted for Scotland. I notice that no such amendment has been tabled. Following the real concern expressed by the noble Baroness, I should be grateful if the noble and learned Lord could say whether it is intended that supervision after release should be available for every prisoner serving a long-term sentence, or whether it is to be a matter for decision by sheriffs and judges.
Lord Sewel: Is it not the case that this matter is dealt with in Amendment No. 147?
Lord McCluskey: The answer to the noble Baroness is fairly clear. The provision about which we are now talking is concerned with release for good behaviour in prison; it is not concerned with supervision after release at all. That is abundantly plain. What I think ought to concern the noble Baroness is the point that was brought out in the Crime (Sentences) Bill and which is within my experience as a trial judge and counsel who has taken part in a number of prison riot cases; namely, the persons who behave best in prison are sex offenders. The ordinary ruffians who commit assaults, breaches of the peace and mayhem tend to behave rather badly in prison. However, sex offenders behave well in prison. Therefore the result of these provisions is that one earns one's release by the way one behaves in prison, and therefore the ones who get out are the sex offenders and the ones who stay in are the violent offenders. That is a matter of greater concern than the mistaken confusion of this part of the Bill with another part of the Bill which lies behind the intervention of the noble Baroness.
Lord Harris of Greenwich: I confirm what the noble and learned Lord, Lord McCluskey, has just said, speaking as a former chairman of the Parole Board for England and Wales. The most dangerous prisoners and the people who represent the greatest risk to the general public on their release behave impeccably in prison. Their position will be greatly improved as a result of this Bill. If the only test is good behaviour in prison—and that is what it is—there is an increased risk to the
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safety of the public as a result of the Bill which we are now discussing. I return to a point made earlier by the noble and learned Lord the Lord Advocate—
Lord Mackay of Drumadoon: If I may—
Lord Harris of Greenwich: I hope I may discuss this point as I am about to refer to the noble and learned Lord. I shall then gladly give way. The noble and learned Lord has said, in terms of providing reassurance as regards the position of the privately-contracted prison—if I may so describe it—that a Crown servant would make the decision as to whether someone should or should not be released, or whether his appeal should or should not be accepted. Who would sit with the Crown servant? Would he sit on his own or with others?
It is a fundamental question because we are moving away from a system where, by and large, the inmate population accepts the fairness of the present system. We are moving into uncharted waters where there are constant risks. A new procedure has been created as a result of which it could be represented that what was previously fair has become grossly unfair. That raises the risk of disturbances in prisons. We have seen in England and Wales just such difficulties, some of which were touched on in the report of the noble and learned Lord, Lord Woolf.
Secondly, what is the position of this Crown servant who will decide the matter? Does he decide it on his own, and if with others, who are they?
10.30 p.m.
Lord Mackay of Drumadoon: I do not know the full answer to that question. I understand from information I have that it is intended to remove from those employed by the private company the carrying out of the statutory duties set out in Clause 31(3). There is an elaborate appeal procedure, as I indicated earlier. Rather than elaborating without the precise details, it would be better if I undertake to write to the noble Lord. I understand that it is intended to involve Crown servants who will be directly responsible to the Secretary of State and through him to Parliament, and of course subject to judicial review in the courts.
However, perhaps I may pick up the point raised by the noble Lord about the fact that the Bill would result in those who were the greatest risk to the public having most to gain and being in an improved position. I suggest that that ignores the provisions of Clause 1 of the Bill. The noble Lord referred to sex offenders. If they were sent to prison on a second occasion, no matter how good their behaviour, and it was decided at the expiry of the determinate part that they remained a risk to the public, the Parole Board would have to be satisfied that that risk no longer existed before they were released. Serious sex offenders admittedly tend to behave well when in prison, in part because they are kept away from "the ruffians", as the noble and learned Lord, Lord McCluskey, refers to them, and kept with people who have offended in a similar manner. However, contrary to the comment of the noble Lord, I believe that when the provisions of Clause 1 come into effect, such good behaviour will not necessarily

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result in their release. Upon proper assessment—this is where the issue of risk assessment arises, to refer to a point raised by the noble Baroness, Lady Carnegy—they will not necessarily be returned to the community just because the five or ten years have expired.
Lord Sewel: We are potentially on the threshold of introducing a thoroughly ill-conceived practice into the prison system. Essentially that is the conflation of a judicial function in determining early release dates with responsibility for prison management and the maintenance of good order and discipline within a prison. That conflation will potentially have extremely adverse consequences for the future proper management of the Prison Service.
It is late, and it is not my intention to divide the Committee. However, I hope that even at this stage the noble and learned Lord the Lord Advocate will recognise that on this issue the concerns expressed on this side of the Committee are genuine and sincerely held. Our concern is essentially for the proper functioning and ordering of the prisons and to avoid the risk of prisons, which we know are difficult institutions to manage, being put in an even more difficult position. I hope that the noble and learned Lord will at least reflect a little on what has been said this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 139:
Page 35, line 36, at end insert ("the Repatriation of Prisoners Act 1984, section 74(6) of the 1984 Act,").
The noble and learned Lord said: In moving this amendment, with the leave of the Committee I shall also speak to Amendments Nos. 140 and 141.
These are technical amendments to ensure that changes set out in other legislation are brought into being in consequence of changes made in Part III of Chapter I. The Committee will see from the first and third of the amendments that they refer to the Repatriation of Prisoners Act 1984. They are technical in the extreme. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 140 and 141:
Page 35, line 39, leave out ("either") and insert ("any").
Page 35, line 41, at end insert—
("(to the amendments made to the Repatriation of Prisoners Act 1984 by paragraph 5(2)(b) and (3) of Schedule 1 to this Act;").
The noble and learned Lord said: I spoke to these amendments with Amendment No. 139. I beg to move the amendments en bloc.
On Question, amendments agreed to.
On Question, Whether Clause 30 shall stand part of the Bill.
Lord McCluskey: I do not oppose the Question. However, I wonder whether I have misunderstood the
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Bill. In relation to early release and the one-sixth remission, I do not understand that that applies to Section 205A, which was referred to by the noble and learned Lord the Lord Advocate in his answer.
I believe it follows that if a person is sent to prison for life under Section 205A—for example, a second rapist—then he does not enjoy the benefit of the one-sixth early release provisions. Those sex offenders who enjoy the benefit of the one-sixth early release provisions are persons who, however many sex offences they may have committed, have not been twice convicted in the High Court and therefore fallen under Section 205A. I wonder whether the noble and learned Lord is able to confirm that I am right about that.
Lord Mackay of Drumadoon: I am, and I hope that I did not mislead the Committee. I had not intended to refer to Section 205A other than to deal with the point raised by the noble Lord, Lord Harris.
Lord McCluskey: I am happy that the noble and learned Lord is able to make that clear. I have no opposition to this clause standing part of the Bill.
On Question, Clause 30 agreed to.
Clause 31 [Early release]:
Lord Sewel Lord Sewel moved Amendment No. 141A:
Page 36, line 15, leave Out subsections (2) and (3) and insert—
("(2) The court shall inform the prisoner at the time he is sentenced how many early release days (being twelve for each assessment period) to which, subject to subsection (3), he is entitled, calculated in accordance with the length of his term of imprisonment.
(3) Where a prisoner is found guilty of a disciplinary offence, the number of early release days to which he is entitled—

(a) may be reduced, up to a prescribed maximum; and

(b) if so reduced, may be reduced by more than the number of days notionally relating to the number of assessment periods which he has already served.").

The noble Lord said: This amendment continues the theme of honesty in sentencing with which both the Government Benches and the Benches on this side of the Committee are in full accord. The amendment basically seeks to make clear the time to which a prisoner is being sentenced and what in fact the early release terms will be. In other words, we are bringing up front in the process of sentencing the precise situation that will obtain. We are making sentencing more explicit and more transparent. It is all part of our combined endeavour to achieve honesty in sentencing.
The Deputy Chairman of Committees (Lord Elton): I should advise the Committee that if this amendment is agreed to, it will not be possible for me to call Amendments Nos. 142 to 144.
Lord Mackay of Drumadoon: I compliment the noble Lord on the originality with which he thinks up amendments to which he can link the words "honesty in sentencing".
As I have already explained in discussing Amendment No. 137, it is an essential principle of the Bill's scheme that early release should be earned by

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good behaviour, which goes beyond the simple avoidance of misconduct reports. Equally it should go beyond the simple avoidance of disciplinary offences which represent the same concept. Under the amendment, such prisoners would continue to be released early with all their problems intact.
The main problem with this group of amendments, which includes Amendments Nos. 144A and 144B, is the calculation of how many early release days a prisoner may be entitled to during his sentence. It can be a complex task and I am quite sure that members of the Scottish Court Service would not welcome taking it on. I am satisfied that it would not be appropriate for them to do so. Equally, I do not believe that the sheriffs would wish to sit down, having decided on the appropriate sentence, and embark on the exercise of calculating right through to the end of the sentence. That would involve working out precisely when the period of five-sixths was reached.
Questions of early release have always been for prison staff to calculate, with the assistance on many occasions, I suspect, of prisoners themselves. The prison staff not only have the necessary experience but they also have available to them knowledge of any other warrants for imprisonment which may relate to the prisoner concerned.
The effect of Amendment No. 144A would be to leave the door open for a future Secretary of State to use a statutory instrument to reduce the level of early release below 12 days every two months. We believe that this level of early release represents the minimum necessary to ensure good order and discipline in our prisons. We do not believe that such a minimum should be reduced by way of subordinate legislation. We would expect any future government who wished to alter the Bill in that regard to come before Parliament, as we have done. For all those reasons, I invite the Committee not to accept Amendment No. 141A.
Lord Sewel: Having heard the Minister on this occasion and not being entirely convinced with his arguments, I think it may still be appropriate to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 142 to 144B not moved.]
On Question, Whether Clause 31 shall stand part of the Bill?
The Earl of Mar and Kellie: I wish to take this opportunity to give an assessment of what I believe will happen in prisons if the early release scheme is implemented: first, a state of insecurity across the prison community. Prisoners will only know the last possible day of their imprisonment, not the first possible day of their release. The staff will be for ever having to help prisoners sort out when they might be released. That means asking the general office to work it out and entails many telephone calls and administrative work. At present prisoners know when they will be released, unless they get themselves on report. Those members of
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staff concerned with post-release supervision and arrangements for, say, accommodation, will have difficulty in assessing likely dates of liberation.
Secondly, the extra six days for above average behaviour and participation in programmes is bound to be based on subjective criteria. There may be consistency in every prison, but that consistency will be impossible to achieve across the 22 prison establishments and one possible private prison. The Scottish Prison Service-wide inconsistency will relate not only to the subjective criteria but also to the availability of programmes in which to participate. Is not that a complicated can of worms, liable to upset prison morale and reasonable behaviour?
Thirdly and finally, will not prison governors faced with overcrowding put out a quiet word that everyone is to have the full allowance unless they have been on report and the charge proved?
All that will be in replacement for a system that works well in practice.
10.45 p.m.
Lord McCluskey: I had intended to deal with this matter when the noble Earl, Lord Mar and Kellie, spoke in relation to Clause 38. But I understand from him that he does not intend to oppose Clause 38 and, accordingly, this is the appropriate time to raise the matter.
We are now deeply into the early release provisions of the Bill. The Committee indicated earlier that it supported Amendment No. 136A, which I am bound to say makes a dramatic difference to all the calculations, as the noble and learned Lord the Lord Advocate pointed out to those of us who were prepared to do their arithmetic. So far as I can see, the amendment results in a saving in public expenditure of about £45 million in the first year or two.
But I am not concerned with the public expenditure consequences. It is slightly artificial to continue discussing the early release provisions unless the Government are prepared to give us some indication of what they intend to do following the Committee's decision to carry Amendment No. 136A. I am sure I should be enlightened if the noble and learned Lord would tell us.
Lord Thomas of Gresford: The noble and learned Lord the Lord Advocate has still not addressed to my satisfaction the risk assessment point. It seems to me that the early release days are to be awarded regardless of any risk assessment. A person who earns the early release will obtain it and come out whatever the state of belief of those who are in control of him about his suitability to be released into the community.
The problem that I find so difficult about early release is that there is a total lack of procedural fairness about it. It comes down to what the man on the landing thinks; whether he personally takes the decision or whether he simply reports to a Crown servant or whoever as to the view that he has. When we discussed the English proposals we were told that it would not be simply the warder on the landing but the person in charge of the

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workshop, the person in charge of the programme, the person in charge of kitchens or whatever—this, that or the other aspect of prison life. They would all be reporting to some central body about a particular individual. He, so far as I can tell, has no right to see those reports. He is just told what his assessment is at the end of two months. He has no right to challenge and he cannot know what to address. Presumably, he will not have any knowledge of what is said about him unless he goes on appeal. The temptation for those 40 inmates a week to go on appeal in order to see why the decision is taken in relation to those early release days, will be considerable.
It is the total lack of fairness about the provisions that I find objectionable. I fully support my noble friend Lord Mar and Kellie in his opposition to this entire clause.
Lord Mackay of Drumadoon: Perhaps I can deal first with the points raised by the noble and learned Lord, Lord McCluskey, who referred to the fact that this would lead to a saving in public expenditure of £45 million. I am tempted to suggest that that may offer some insight as to why the amendment received support from some quarters of the Chamber, though I hasten to assure the noble and learned Lord, Lord McCluskey, that I do not regard that as being one of his motives in bringing forward the amendment. I suspect others may have supported it for that reason and no doubt we will find out in the fullness of time.
The noble Lord, Lord Thomas, said that I had not yet addressed the issue of risk assessment. As the noble Lord, Lord Sewel, indicated not long ago, this is a matter which arises fairly and squarely in Amendment No. 147 and I believe it would be more sensible to deal with it at that time.
In relation to the issue of procedural fairness, I do not claim a huge expertise in judicial review. But if there is one thing that judicial review is designed to look at, it is the issue of procedural fairness. All steps of the procedure will be subject to judicial review in the courts. If there is a lack of procedural fairness, the courts will not be slow to tell the Government that that is so.
The precise detail of how prisoners are given copies of relevant documents; how they make submissions on the relevant documents before decisions are taken; and how the various stages of the appeal procedure are conducted are matters which will be set out in the rules. If, for any reason, the basic principles of procedural fairness are not adhered to, there can be little doubt that judicial review will take place on some basis or another.
I suggest therefore that while it may be difficult prior to seeing the prison rules to be satisfied that these concerns will be addressed, Members of the Committee should accept that the Government will have no alternative but to address them. The Government have every wish to address them because they appreciate as well as anybody that if the procedure for dealing with the assessments is not conducted according to the requirements of procedural fairness, that would lead to unrest and consequences in the court may arise.
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The noble Earl, Lord Mar and Kellie, seeks to oppose the clause in its entirety. Members of the Committee will appreciate that it is a clause which is central to the Bill's scheme of early release. Earlier, I had occasion to go through the detail of the matter at a length which caused irritation to some Members of the Committee. I will therefore not trespass again in that regard.
I do not accept that the criteria will be subjective. I do not accept that staff cannot operate the procedure in a fair manner. I repeat that whoever is taking decisions in relation to the early release of prisoners has, to some extent, to rely on those who see them on a daily basis. However, I stress that the decisions will be taken much higher up the management ladder. I understand the anxieties of the noble Earl, Lord Mar and Kellie. I hope, however, that he will not persist in his opposition to Clause 31 standing part of the Bill.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, I am still puzzled about the question of judicial review. One can look at the procedures under judicial review if the body is subject to judicial review. I am not being in any way critical of the Government, because we are all puzzled by judicial review, but is the Lord Advocate saying that these procedures will automatically fall under the umbrella of judicial review and that the procedures can then be looked at in a quasi-judicial context; or will it be left to the courts to decide whether each individual case falls within the ambit of judicial review?
Lord Mackay of Drumadoon: I apologise for not making the matter clearer earlier. The Government's position is that the statutory procedure set out in the Bill for the assessment of days will in its entirety be subject to judicial review in the courts. The case which establishes that as the law, in so far as it establishes that the prison authorities are subject to judicial review, is West v. The Secretary of State for Scotland. I may be wrong about that but I am absolutely certain that I am right about the fact that judicial review will apply. I have not heard any contradictor to that assertion, albeit that I may not have explained earlier the full extent to which that procedure will cover the various stages of the assessment, both the initial assessment and the appeal procedure.
Clause 31 agreed to.
Clause 32 agreed to.
Clause 33 [Amendments to 1989 Act]:
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 145:
Page 38, leave out lines 9 to 13.
The noble and learned Lord said: Amendments Nos. 145 and 146 go together. They have already been spoken to. I have nothing to add. I apologise to the Committee for the fact that I have to depart now because I have to return to Edinburgh tonight, having judicial business to attend to tomorrow morning. I hope that someone may look carefully at Clause 41 and seek from the Government some explanation as to why the clause

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has been introduced. I apologise to the Committee for not being able to be present to deal with the other matters.
[Amendment No. 145 not moved.]
[Amendment No. 146 not moved.]
Clause 33 agreed to.
Clauses 34 to 37 agreed to.
Clause 38 [Mentally disordered offenders]:
On Question, Whether Clause 38 shall stand part of the Bill?
The Earl of Mar and Kellie: I withdraw my opposition to the clause standing part. I misunderstood the clause.
Clause 38 agreed to.
Lord Sewel Lord Sewel moved Amendment No. 147:
After Clause 38, insert the following new clause—
RELEASE LICENCES
(" .—(1) This section applies to all prisoners sentenced to a term of imprisonment or terms of imprisonment totalling 4 years or longer and who are not released on—

(a) life licence;

(b) supervised release order; or

(c) compassionate grounds.

(2) A prisoner to whom this section applies shall be released on licence which shall (unless revoked) remain in force until the entire period specified in his sentence (reckoned from the commencement of the sentence) has elapsed.
(3) A person released on licence under subsection (2) above shall comply with such conditions as may be specified in that licence by the Secretary of State.
(4) Without prejudice to the generality of subsection (3) above and to the power of the Secretary of State under subsection (5) below to vary or cancel any condition, a licence granted under this section shall include a condition requiring that the person subject to it shall—

(a) be under the supervision of a relevant officer of such local authority, or of a probation officer appointed for or assigned to such petty sessions area, as may be specified in the licence; and

(b) comply with such requirements as that officer may specify for the purposes of the supervision.

(5) The Secretary of State may from time to time under subsection (3) above insert, vary or cancel a condition in a licence granted under this section, but no licence condition shall be included on release or subsequently inserted, varied or cancelled except after consulting the Board.
(6) For the purposes of subsection (5) above, the Secretary of State shall be treated as having consulted the Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the implementation of proposals of that description generally or in that class of case.").
The noble Lord said: This is an important amendment in that with it we return to the matter that was briefly mentioned by the noble and learned Lord, Lord Hope, some time ago. There is a danger of being too brief at this time of night when we face important clauses. The amendment seeks to improve public safety by ensuring that anyone sentenced to imprisonment for four years or more is subject to a period of supervision on licence from the date of his release until his sentence expiry date.
There are three reasons for the amendment. The 1993 Act, which has been referred to on many occasions during our debates on the Bill, introduced non-parole licences, which means that any prisoner sentenced to more than four years but not granted parole is currently released on licence until his sentence expiry date. That is the current situation. At present, people sentenced to long terms of imprisonment and not receiving parole, when released are subject to supervision. These arrangements are important because they not only enhance public safety, which must be a primary concern, but they also add to the rehabilitation of the individual through supervision.
The current proposals in the Bill alter these arrangements as only life parolees and those made subject to a supervised release order by the sentencing court, will now be under any direct supervision. All other long-term prisoners will have no supervision, but they will be liable to recall following a further offence. There is no requirement and nothing mandatory that prisoners released without parole on long sentences will be subject to a supervision order.
If the amendment is agreed to public safety will be increased because long-term prisoners will be supervised until their sentence expires. There is that important link of supervision until the sentence expires. We have to recognise that those falling into that category constitute a population from which those who commit future serious offences are likely to be drawn. The idea of mandatory supervision throughout this period is a very powerful one. In particular, this amendment will ensure that those sentenced for offences of dishonesty, theft by housebreaking, especially repeat, serious offenders and the professional criminal and thief, are brought into mandatory supervision on release. That is surely right not only in terms of trying to rehabilitate the prisoner who is making the transition from prison to the outside in a more structured and more supportive way, which is more likely to lead to successful rehabilitation, but more importantly—I say this quite plainly—these provisions are important for a public safety purpose to make sure that those who have been convicted of serious offences and who have served a significant time in prison, are supervised in that important period of time when they are first released into the community.
As I say, the argument for this amendment is two-fold. It concerns not only rehabilitation but, much more than that, public safety.
11 p.m.
Lord Mackay of Drumadoon: The noble Lord mentioned the question of public safety. I would like to believe that the Committee were satisfied that the protection of the public is at the very heart of Government policy and at the heart of this Bill. That is demonstrated by two sets of provisions, those relating to amending the procedures for early release and those dealing with post-release supervision.
The new clause in the amendment moved by the noble Lord, Lord Sewel, addresses the position of offenders who are sentenced to a period of

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imprisonment of five years or more and who are released, other than on compassionate grounds, without being subject to a supervised release order or a life licence. Yet the practical effect of the amendment for such offenders would be to retain the existing provisions of Sections 11 and 12 of the 1993 Act because the release of such prisoners would be on licence. That would endure for the unexpired period of the sentence. It would require the offender to comply with such conditions as the Secretary of State, on the advice of the Parole Board, may from time to time specify and would require the offender to be under the supervision of a local authority social worker.
On the face of it, that proposal might appear attractive, but I believe that in practice it could well weaken the arrangements for post-release supervision. It is important to bear in mind the provisions in the Bill dealing with supervision which are set out in Clause 3 on page 5. The noble and learned Lord, Lord Hope, drew attention to the fact that there is a difference between the English and Scottish Bills on this matter, but it can be seen from subsection (2) of the new clause that in certain instances the supervision order will be mandatory while in others it will be discretionary.
It is important to understand that supervised release orders are potentially much stronger tools for post-release supervision than are parole licences. One reason is that they can last considerably longer, if necessary. If post-release supervision is required, it is, we believe, preferable that it should be done by way of a supervised release order rather than a period of licence between the five-sixths point and the end of the sentence to which it would apply. We believe that it is important to avoid obscuring the fact that the courts have a responsibility to consider, when imposing sentence in these serious cases, whether a supervised release order is appropriate if it is not a case in which it is mandatory.
We are concerned that the new clause would seek to deflect the courts from applying their minds to the very important issue of whether to impose a supervised release order in discretionary cases. If they did so, that could have the effect of reducing the number imposed which, far from enhancing public safety, would serve to diminish it. That is because the maximum length of the licence could be only to the end of the determinate sentence, whereas Clause 3(5) makes it clear that the periods for which a supervised release order could be imposed can be far in excess of the expiry of the determinate part
Lord Sewel: Will the noble and learned Lord accept that the amendment refers specifically to the fact that the provisions would not apply to those released on a supervised release order?
Lord Mackay of Drumadoon: I fully accept that, but it simply bears out the point that I am seeking to make. If at the point of sentence the court knows that some other body—namely, the Parole Board—some years down the line can address its mind to the issue of licence subject to conditions which in certain respects would be similar to supervision, that could distract the court from the importance of considering whether it—the court—should impose the supervised release order. If the court knew that
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if it did so these provisions for licence would not apply, I suggest that that might be a very cogent reason why some judges would be dissuaded from making use of the power, despite the fact that it has the benefit of extending long after the expiry of the determinate part, which is not something that can apply to licence conditions for reasons of complying with the European Convention on Human Rights.
We also believe that the new clause would have a further undesirable consequence because of its requirement for post-release supervision on a blanket basis irrespective of whether the risk required it. In every case where the prisoner was released, the licence would apply. It would inevitably mean that some effort on the part of those responsible for supervising prisoners would be expended on cases where there was no real need for it and no real benefit to either the prisoner or the community. We believe that the resources of social workers and others who are involved in supervision should instead be concentrated on cases where there is a real need for this to continue, in some instances many years beyond the expiry of the determinate part.
For these reasons, we do not believe that this new clause should be added to the Bill. While we sympathise with the motive that lies behind it, we believe that on closer examination it will create difficulty. I hope, therefore, that it will not be insisted upon.
Baroness Carnegy of Lour: I am extremely grateful for the noble and learned Lord's explanation of the distinction between supervised release orders and the early release procedures. I now understand it better. It is confusing because it is so different from the position under the English Bill. One tries to fit the two together but they do not do so, and indeed should not do so, because the systems are different.
Lord Harris of Greenwich: I am sure that noble Lords should be grateful to the noble and learned Lord the Lord Advocate. However, I believe that his reply was the most unpersuasive I have heard during the course of the debates on either this Bill or the English Bill. What is his argument? As I understand it, the real danger of this amendment is that it will distract the court from determining whether or not there should be a supervised release order. I have rather more confidence in Her Majesty's judges in Scotland than the noble and learned Lord the Lord Advocate appears to have. It seems to me that the case made by the noble Lord, Lord Sewel, is overwhelming. The Committee has not heard a serious reply from the noble and learned Lord as to why this amendment should not be accepted.
Public safety is a matter which the Secretary of State for Scotland spends a great deal of time discussing with anyone who is prepared to listen to him, but public safety is guaranteed by this amendment. I am astonished to hear the noble and learned Lord say that one of the grave dangers inherent in the amendment is that we will return to the provisions of the 1993 Act. Who introduced the 1993 Act? The present Government. We are therefore asked to disbelieve everything said by his predecessor, now a distinguished judge in Scotland. All of that is to be swept aside. Under no circumstances must we pay any

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attention to what his predecessor said when occupying his present office, but we must accept uncritically everything that he says this evening. I believe that the amendment moved by the noble Lord, Lord Sewel, is overwhelmingly right and that my noble friends will vote for it.
Lord Sewel: I am equally disappointed by the reply of the noble and learned Lord the Lord Advocate, primarily because I believe that much of it is basically irrelevant. The noble and learned Lord put up a straw man and proposed the supervised release order against what we propose in this amendment. The fact is that the amendment specifically excludes its application to those released through a supervised release order. There is no weakening of the supervised release order route. It is there. It is designed for those potentially dangerous releasees who, having served four years or more, come back into the community and are not subject to life licence or supervised release orders, or who are released on compassionate grounds.
The noble and learned Lord the Lord Advocate cannot deny that as the Bill stands now there is every likelihood that a significant group of prisoners, having committed crimes worthy of a sentence of four years or longer, will be released back into the community without any supervision at all. Surely, that is wrong if one is to protect and look after the safety of the public. I beg to move.
11.14 p.m.
On Question, Whether the said amendment (No. 147) shall be agreed to?
Their Lordships divided: Contents, 12; Not-Contents, 31.

Division No. 3

CONTENTS

Brooks of Tremorfa, L.

Lovell-Davis, L.

Carmichael of Kelvingrove, L.

Macaulay of Bragar, L.

Falkender, B.

McIntosh of Haringey, L.

Fitt, L.

Mar and Kellie, E. [Teller]

Graham of Edmonton, L.

Monkswell, L.

Harris of Greenwich, L. [Teller.]

Sewel, L.

NOT-CONTENTS

Ailsa, M.

Lindsay, E.

Attlee, E.

Long, V.

Balfour, E.

Lucas, L.

Blatch, B.

Lucas of Chilworth, L.

Byford, B.

Lyell, L.

Carnegy of Lour, B.

Mackay of Ardbrecknish, L.

Chesham, L. [Teller.]

Mackay of Clashfern, L. [Lord chancellor.]

Courtown, E.

Cross, V.

Mackay of Drumadoon, L.

Dean of Harptree, L.

Marlesford, L.

Dixon-Smith, L.

Miller of Hendon, B.

Elton, L.

Northesk, E.

Ferrers, E.

Rennell, L.

Henley, L.

Strathclyde, L. [Teller.]

HolmPatrick, L.

Trumpington, B.

Inglewood, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
11.20 p.m.
Clauses 39 to 41 agreed to.
Clause 42 [Police grant]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 147A:
Page 46, line 21, leave out ("each") and insert ("the financial year 1997–98 and for each subsequent").
The noble and learned Lord said: In moving this amendment, I shall speak also to Amendments Nos. 147B to 147GA and Amendment No. 150C. These amendments to Clauses 42, 43 and 62 will ease the implementation of the provisions of the Bill dealing with police grant and common police services. They have no policy implications. They are technical amendments. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 147B to 147G:
Page 46, line 29, leave out ("this section") and insert ("subsection (1) above").
Page 46, line 32, at end insert—
("and any determination under this subsection for any financial year may be varied or revoked by a subsequent such determination for that year.").
Page 47. line 6, leave out ("this section") and insert ("subsection (3) above").
Page 47, line 11, leave out ("this section") and insert ("subsection (3) above").
Page 47, line 13, leave out ("this section") and insert ("subsection (3) above").
Page 47, line 21, at end insert—
("(2) A determination made under section 32(3) (police grant) of the Police (Scotland) Act 1967 (as inserted into that Act by subsection (1) above) for the financial year 1997–98 may, notwithstanding that this section comes into force after the beginning of that financial year, relate to the whole of that year; and the first such determination shall take effect in place of any determination made for that year under section 32(1) of that Act as it had effect prior to the coming into force of this section.").
On Question, amendments agreed to.
Clause 42, as amended, agreed to.
Clause 43 [Common police services]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 147GA:
Page 48, line 37, at end insert—
("(3) Section 36, and the definition of "central services" in section 38(5), of the Police (Scotland) Act 1967, as substituted respectively by subsections (1) and (2) above, shall come into force or, if this section comes into force after that date, be deemed to have come into force, on 1st April 1997.
(4) The first determination made by the Secretary of State under section 36(3) of that Act, as so substituted, for the recovery of any expenditure incurred by him under that section—

(a) may be applied by him in relation to any expenditure so incurred during the period beginning on 1st April 1997 and ending on the date on which the determination is made; and

(b) subject to subsection (5) below, shall take effect in place of any provision for such recovery made in an Order under the said section 36 as it had effect prior to the coming into force of this section.

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(5) Nothing in subsection (4) above shall entitle the Secretary of State to recover a higher proportion of his expenditure in relation to the period mentioned in that subsection than he would have been entitled to recover in relation to that period under any such Order.").
The noble and learned Lord said: I spoke to this amendment when dealing with Amendment No. 147A. I beg to move.
On Question, amendment agreed to.
Clause 43, as amended, agreed to.
Clause 44 agreed to.
Clause 45 [Samples etc. from persons convicted of sexual and violent offences]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 147GB:
Page 50, line 40, leave out from beginning to end of line 2 on page 51 and insert ("This section applies where a person—

(a) is convicted on or after the relevant date of a relevant offence and is sentenced to imprisonment;

(b) was convicted before the relevant date of a relevant offence, was sentenced to imprisonment and is serving that sentence on or after the relevant date;

(c) was convicted before the relevant date of a specified relevant offence, was sentenced to imprisonment, is not serving that sentence on that date or at any time after that date but was serving it at any time during the period of five years ending with the day before that date.").

The noble and learned Lord said: In moving this amendment I shall speak also to Amendments Nos. 147GC to 147GJ. This is an important group of amendments which are intended to give the police wider powers to obtain DNA samples for DNA purposes in order to assist them in their investigation of the most serious crimes of a sexual or violent nature and, thereby, give the public greater protection. The Bill already gives the police powers to take such samples and other physical data from sexual and violent offenders who are in custody. What we are now proposing is that they should be given additional powers to take samples from certain of the most serious offenders who have completed their prison sentences and have been released before the commencement date.
We recognise that it is unusual to make a provision which will affect offenders who have completed their sentences. We appreciate that there are issues relating to civil liberties here. But we believe that the crimes committed by such offenders are sufficiently heinous that all steps should be taken to ensure that the public is properly protected from them. It appears that there is a high propensity on the part of sexual and violent offenders to repeat their reprehensible behaviour, and we therefore consider that it would be very useful for the police to be able to take samples from recently released offenders to assist them in their investigations. Of course, the rights of past offenders have to be weighed against the right of the public to be protected from those criminals who have committed crimes of this serious nature. The amendments that we have brought forward attempt to strike a balance. We intend to allow the police to take samples from offenders who have been released from prison, but we intend that that right should be limited by certain safeguards to prevent any undue
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encroachment on the lives of persons who have been released from custody. I commend the amendments to the Committee. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 147GC to 147GJ:
Page 51, line 3, leave out ("subsection (3)") and insert ("subsections (3) and (3A)").
Page 51, line 4, leave out ("at any time while the person is in legal custody").
Page 51, line 21, at end insert—
("(3A) Where this section applies by virtue of—

(a) paragraphs (a) or (b) of subsection (1) above, the powers conferred by subsection (2) above may be exercised at any time when the person is serving his sentence; and

(b) paragraph (c) of the said subsection (1), those powers may only be exercised within a period of three months beginning on the relevant date.

(3B) Where a person in respect of whom the power conferred by subsection (2) above may be exercised—

(a) is no longer serving his sentence of imprisonment, subsections (3)(a), (5) and (6);

(b) is serving his sentence of imprisonment, subsection (3)(b),

of section 19 of this Act shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.").
Page 51, line 29, at end insert—
(""relevant date" means the date on which section 45 of the Crime and Punishment (Scotland) Act 1997 is commenced;").
Page 52, leave out lines 18 and 19 and insert—

("(viii) section 5(1) or (2) of that Act (unlawful intercourse with girl under 13 years);

(viiia) section 5(3) of that Act (unlawful intercourse with girl aged between 13 and 16 years);").

Page 53, line 29, at end insert—
("and any reference to a person serving his sentence shall be construed as a reference to the person being detained in a prison, hospital or other place in pursuance of a sentence of imprisonment; and
"specified relevant offence" means—

(a) any relevant sexual offence mentioned in paragraph (a), (b), (f) and (i)(viii) of the definition of that expression and any such offence as is mentioned in paragraph (h) of that definition where the person against whom the offence was committed did not consent; and

(b) any relevant violent offence mentioned in paragraph (a) or (g) of the definition of that expression and any such offence as is mentioned in paragraph (e) of that definition where the assault is to the victim's severe injury,

but, notwithstanding subsection (5) below, does not include—

(i) conspiracy or incitement to commit; and

(ii) aiding and abetting, counseling or procuring the commission of,

any of those offences.").
On Question, amendments agreed to.
On Question, Whether Clause 45, as amended, shall stand part of the Bill?
The Earl of Mar and Kellie: I wish briefly to clarify one point; namely, does the offender have any choice in the matter of giving a sample to the police or, alternatively, does he have to submit to the requirement placed upon him by the police constable in accordance with the schedule of offences? Is it practical to take such a sample from an unconsenting offender?
Lord Mackay of Drumadoon: The Bill gives the police certain powers to take samples from offenders. When the provisions come into force, we hope that they will be respected by those to whom they will apply. New Clause 19B of the 1995 Act (which is set out at the foot of page 53 of the Bill) indicates that the constable,
"may use reasonable force in",
taking such samples. However, we hope that that will not prove necessary, but if it should the power is there. I hope that that answers the noble Earl's question.
On Question, Clause 45, as amended, agreed to.
Clause 46 [Criminal legal assistance]:
11.30 p.m.
Lord Macaulay of Bragar: Before the noble Earl, Lord Mar and Kellie, moves his amendment, I hope I may say, with the permission of the Committee, that it is now half-past eleven at night. I think we have been here since quarter past three, subject to a one hour break. I am not pleading sympathy but in any other factory that would be a breach of the Health and Safety at Work Act.
We are now about to discuss an important matter; namely, the question of legal aid, the code of conduct, the relationship between the code of conduct and solicitors and the Faculty of Advocates. These amendments may look simple because they are short but I make a request to the noble and learned Lord the Lord Advocate, subject to any views that the noble Earl, Lord Mar and Kellie, may have, that perhaps the Government can take the rest of the amendments away and consider them because they have been tabled only recently and perhaps contact those of us who have an interest in this matter and even have a meeting with us to discuss what the outcome might be. That would certainly save much discussion this evening; otherwise, we may be here for some considerable time.
I have not consulted in detail with the noble Earl, Lord Mar and Kellie, but I thought my suggestion would be in the best interests of justice, which is what this Bill is supposed to be all about. I hope the Government can take these amendments away, think about them and have discussions between now and Report stage. If the Government consider there are amendments that they can support, we can return to them on Report. It is regrettable that a few people are facing one another across the Chamber discussing important matters in
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relation to the administration of justice in Scotland. I hope the noble and learned Lord the Lord Advocate might give the matter some thought.
The Earl of Mar and Kellie: I also feel it is disappointing that a revising Chamber should be so empty when we are discussing matters of such importance to the Scottish constitution. I hope that the noble and learned Lord will feel the same way as the noble Lord, Lord Macaulay of Bragar.
Lord Mackay of Drumadoon: Perhaps I may make my position clear, as I have sought to do earlier in the Committee stage. Any noble Lord should feel perfectly free to talk to me about any amendment or any clause for whatever purpose. It is regrettable that we should discuss these amendments at this hour but the reasons for that are obvious to those of us who have participated in the Committee stage since it began last Tuesday.
I can indicate now that because the next group of amendments were tabled so late in the day the Government have no alternative but to resist them. As soon as I saw them I sought to obtain from the Dean of the Faculty of Advocates a response on them, but while he has provided me with a fairly lengthy letter, he is perfectly understandably not yet in a position to reach a final view on these matters on behalf of the faculty. That might satisfy the Committee that there is no point in pressing ahead with them. I have discussed matters recently with various members of the solicitors' branch of the profession and I am well aware what lies behind amendments that they have invited the Committee to move. However, I am open to discussion on those matters, too. So far as I recollect, I do not intend to accept any of the amendments which we have still to discuss. On the clear understanding that I shall discuss them, it is a matter for the Committee whether or not it presses the amendments.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 147H:
Page 54, line 10, at end insert—
("() advocates;").
The noble Earl said: It is disappointing that we have had two and a half days to discuss a Bill which took four days to discuss when it related to England. However, having said that, I beg to move Amendment No. 147H.
This group of numerous amendments has been suggested to me by the Society of Solicitor-Advocates. This relatively new group of legal professionals, established by legislation in 1990, is keen to establish its position in the legal system. Indeed, at the Strathclyde tram inquiry the petitioners were represented by a solicitor-advocate.
This huge group of amendments relates to the need for a level playing field for advocates and solicitor-advocates. This will be particularly relevant in the High Court. It is conceivable that both advocates and solicitor-advocates may appear in trials involving multiple accused persons. It seems inappropriate that the Scottish Legal Aid Board should regulate representation

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by solicitor-advocates under the code of practice, as proposed in Clause 46, and be unable to regulate representation by advocates.
There is also an issue about stewardship of the legal aid fund. It is essential that the public receive the same standard of service from solicitors and advocates.
Lord Macaulay of Bragar: There is a common theme running through the amendments. It is to put advocates and solicitors on a level playing field. In the administration of justice there cannot be a level playing field. I declare an interest as a member of the Faculty of Advocates. It has been in existence since, I think, 1532. I am subject to correction as I speak off the top of my head. In so far as I have any thoughts at this time of night, I think that the Faculty of Advocates may go back to 1452 and the reign of James III.
Perhaps it should be made clear to the Committee that the Faculty of Advocates has had its own code of conduct for a considerable number of years. Those of us who are involved know that successive deans of faculty have not dealt lightly with misdemeanours by members of the Faculty of Advocates. Indeed, I am sure that the records of the faculty will indicate occasions when members of the faculty who did not comply with the code of conduct were suspended from practice, with various other admonitions against them.
The faculty has already established its own ombudsman—a disciplinary committee formerly chaired by Lord Kincraig who was the author, to some extent, of the 1993 Bill which the Government have now thrown out of the window. Fortunately, Lord Kincraig did not go out with the Bill. He was succeeded by the noble and learned Lord, Lord Jauncey. So we have a built in system of discipline within the faculty. It is important to remember that solicitors are not members of the Faculty of Advocates. They are solicitors with extended rights of audience in the High Court of Scotland. They are not within the discipline of the faculty; and there is no reason why they should be. I understand that they are still subject to the governing body, namely the Law Society of Scotland.
Therefore we have two bodies working together. I appreciate, as the noble Earl, Lord Mar and Kellie, said, that one may have five people in a trial, three represented by counsel, and two by solicitor-advocates. But that does not alter the fact that if any of the five persons representing the people step out of line their own disciplinary body will take charge of any complaints made by the public, a juror, an accused or anyone else.
I do not intend to dwell on these amendments at any length since the Government have made it clear that they will not accept any of them. At this stage it would not be profitable to go into the minutiae. However, I wish to put on record the general principle that the Faculty of Advocates has its own code of conduct, headed by a very highly respected Member of this place with two laymen. The Law Society has its own disciplinary procedure. I assure the Committee that appearing before it is not a pleasant experience for either
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the solicitor who has stepped out of line or the counsel or solicitor who may be representing that person. The society is very rigorous in its application of standards.
It would be folly to mix up the two systems. Solicitor-advocates should remain what they are—solicitors, with extended rights of audience. Members of the Faculty of Advocates should remain what they are; namely, members of the College of Justice in Scotland. We should leave matters as they stand, unless there is some very compelling reason as to why they should be linked together.
I hope that the noble and learned Lord the Lord Advocate might take these issues on hoard, and that the noble Earl, Lord Mar and Kellie, might consider these factors in relation to the rest of the amendments before the Committee. Tonight, we are not debating these matters; we are merely making observations. No doubt if these amendments are tabled again on Report, we shall hold a proper debate on them.
Lord Mackay of Drumadoon: The amendments tabled by the noble Earl, coming as they do at this stage in the Bill, raise some very important and interesting issues. However, they have been tabled at a time which makes it impossible for either the Government or, more importantly, those who might be affected by them to give these matters the full consideration that they merit.
I appreciate that solicitor-advocates may have concerns about the proposals in Part V of the Bill. However, I wish to assure them that, although they will be obliged to observe the code of practice if they wish to register for criminal legal assistance in their capacities as solicitors, so far as their role as solicitor-advocate is concerned different considerations apply.
I have already referred to the fact that I received only today a very full letter from the Dean of Faculty. It deals with a number of important issues which the noble Lord, Lord Macaulay, mentioned. The faculty's procedures for discipline is one of those matters; it is set out very fully and cogently. It may be that the Dean of Faculty will think it of assistance to disclose the contents of that letter to others who are interested in this amendment apart from the Society of Solicitor-Advocates, which promoted it. I know that these amendments have the support of the Law Society.
I am happy to listen to anybody who wishes to talk to me about the amendments or send me any further epistles about them. However, I wish to make it clear that it would be quite inappropriate to indicate acceptance of them tonight or indeed any indication that they might prove acceptable during the currency of this Bill. They raise major matters, as the noble Lord, Lord Macaulay, mentioned.
On the assurance that I am willing to listen to anyone who wishes to speak to me, I hope that the noble Earl will not insist on this and the successive amendment.
The Earl of Mar and Kellie: I should merely like to establish that solicitors have a code of conduct at present; they have an independent disciplinary tribunal, and there is a government ombudsman to deal with their problems.

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The noble and learned Lord said that there is not enough time to give adequate thought to this matter. That I can see. Will the noble and learned Lord say how much pre-legislative consultation there was? That seems to be the flaw in all this. If the Dean of Faculty is only now being asked for an opinion, one wonders why this matter did not arise in pre-legislative consultation. Perhaps the Minister could tell me whether he has met the Law Society representatives to discuss the matter.
11.45 p.m.
Lord Mackay of Drumadoon: My understanding is that of all the bodies in Scotland which meet regularly with Scottish Office officials and Ministers, the Law Society is pretty much at the head of the queue. These consultations take place formally and informally, there is a wide exchange of views on matters relating to legal aid. The Law Society must be complimented on bringing forward its ideas on how the scheme might be altered. It has proved to be of use in discussing the Government's ideas, so there has been wide-ranging consultation. The faculty has been involved to some extent as well. But until now no one has suggested that it would be appropriate to have the provisions apply to people who appear in court, in the High Court, who are detached from the client in the way that a member of a faculty is, who must be instructed by a solicitor or in the way that a solicitor-advocate is. He has to be one step removed from the accused.
So there are fundamental issues here which I am happy to discuss further, but the fact that they arise late is not a consequence of a lack of consultation among the profession in Scotland. It arises for reasons which I understand; the society of solicitor-advocates is of the view that it might provide a level playing field. I might hear a strong argument from some quarters that the level playing field already exists.
The Earl of Mar and Kellie: I am fairly grateful for that answer. The solicitor-advocates are obviously anxious about the matter. I hope that the noble and learned Lord will be able to hold consultations before the Report stage, but I undertake to bring the subject back at Report because it clearly needs a full and final answer. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.47 p.m.
Lord Harris of Greenwich: I beg to move, That the House be now resumed. I think the Government should give some indication of how late we shall sit tonight. Unless the Minister gives an astonishingly provocative reply, I do not intend to divide the Committee on the issue, but he will remember, as we all do, the decisions of the Procedure Committee following the report of Lord Rippon and his colleagues.
It is wholly unreasonable that a revising Chamber should discuss matters as important as this at a quarter to 12 at night. There are about 16 of us discussing major issues involving the criminal law of Scotland. On
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Monday of last week, the House sat until three o'clock in the morning. The next night we sat until nearly midnight. Some restraint must be shown by Ministers, even when they have got into an appalling mess with their legislative programme.
It is obvious that the Committee is becoming rather tired and ill-tempered—though not on this side of the Committee. I saw a gesture from the noble Baroness, Lady Trumpington, which I clearly misunderstood and I must tell the Minister that it worried me considerably. It did not seem to be consistent with the Prime Minister's views on the way in which people should conduct themselves in public life. The noble Baroness is a popular Member of the House and I would not hold it against her. Nevertheless, it shows the extremities to which people are driven when we sit as late as this.
Seriously, there are important questions involved if the House is to be seen as a proper revising Chamber. Every day we hear indications from Ministers about the unique service performed by the House in scrutinising legislation. That is right. But how can it be suggested that we are seriously examining legislation—16 of us—knowing full well that if there are not 30 in the Government Lobby, or 30 voting in the House, the House will be counted out. That is the reality.
This Chamber accepted the report of the Procedure Committee recommending that we should aim—it was only an aim—to adjourn not later than 10 o'clock at night. We are now approaching midnight and this is the third time within a period of eight days that such a situation has obtained. No doubt we shall have plenty more occasions of the same character in the next week or two.
I hope that the Government will now indicate what they expect to happen and whether they still believe that it is right to discuss issues of such fundamental importance involving the criminal law of Scotland at this time of the evening.
Moved, That the House be now resumed(Lord Harris of Greenwich.)
Lord Elton: Having heard a great deal of the proceedings on this Bill, I should like to make just two observations. The first is that the Procedure Committee's decision as to time is, of course, the opinion of the House delegated to it. But I have to say that I recall many nights on which we have debated long beyond midnight matters more complicated than this and done so very effectively.
My second observation is that the earlier stages of the proceedings on this Bill today were conducted in a very leisurely manner. The noble Lord may make what gestures he likes but it seemed to me that there was a leisureliness all round the Chamber for which we are now paying and which I regret.
Lord Macaulay of Bragar: With respect to the noble Lord, I take objection to that remark. We take Scottish legislation very seriously. We may have different characteristics from people south of the Border and maybe sometimes we appear to be a little laid back about what is going on on both sides of the Chamber.

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That does not mean that we do not treat matters seriously and try to expedite the business of the Chamber. I am sure that in due course, if maybe the noble Lord comes up to Scotland for a holiday, he will familiarise himself with the Scottish character more than he seems to have done up to date.
We have tried to expedite the Bill. The reason that we got lost, if I may so put it—I do not criticise anyone for it—is that one amendment took 58 minutes to debate. That is where the Bill went astray. As I understand the matter, what the Government wanted and what was agreed was that the Bill should pass its Committee stage tonight. If the Government (the noble and learned Lord has been very positive about it) are prepared to take the later provisions of the Bill away, think about them and receive representations from the Faculty of Advocates, the Society of Solicitor-Advocates and the Law Society of Scotland, then the Government will have what they want; namely, that the Committee stage would pass tonight, at this stage, without any further debate as I understand it; and they would be wrong.
Lord Mackay of Drumadoon: So far as concerns the point raised by the noble Lord, Lord Macaulay, I hope that I had made it clear that I am happy to listen to representations on any amendment. But I also made it clear that I intended to resist the amendments and that it was a matter for noble Lords whether or not they moved them.
As to the point raised by the noble Lord, Lord Harris, he will be well aware that these matters are for discussion by the usual channels. It has been agreed by the usual channels that we should continue. One amendment may have taken longer than many people anticipated; but that is a fact of parliamentary life, for which I do not accept or accord any blame. We are where we are because of what happened earlier.
Having made it clear that if anyone wishes to discuss matters further, I hope that the Committee may find it possible so to conduct the rest of the business that the noble Lord, Lord Harris, will get to his bed earlier than he might otherwise do.
Lord Harris of Greenwich: I am perfectly prepared to remain with the noble and learned Lord the Lord Advocate so long as he wishes. The question is whether 30 members of his own party will remain with us to ensure that the business of the Government has its quorum.
The noble and learned Lord made two comments. He referred to what happened earlier. We all remember what happened earlier. The noble and learned Lord was involved in a filibuster. He was asked by the Government Chief Whip to continue speaking long enough to ensure that enough Conservative Peers arrived to defeat the amendment. We all know that, notwithstanding his admirable 30-minute speech—
Lord Mackay of Drumadoon: It was 40 minutes.
Lord Harris of Greenwich: I apologise, I am not paying sufficient tribute to the Lord Advocate; it was a
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40-minute speech. That is one of the reasons we are sitting at nearly midnight tonight. So what happened earlier, to repeat the direct language of the Lord Advocate, was that we had a 40-minute speech from the noble and learned Lord to try to frustrate the Opposition Benches who wished to ensure that the amendment was carried.
That is the first point. We then come to the interesting intervention—as they always are—of the noble Lord, Lord Elton. He told us that the Chamber often sat beyond midnight. That is true. The reason Lord Rippon was invited to look into the question of the sitting hours of the Chamber was for just that reason; namely, people on both sides of the House regarded it as objectionable that a revising Chamber should discuss serious questions about the law of this country when only 12 or so people were in the Chamber.
We are now being invited by the noble Lord, Lord Elton—I hope I summarised his argument fairly—to ignore what the House decided on the recommendation of Lord Rippon. The Government are in a desperate state with their parliamentary timetable. But we ignore Lord Rippon. The Lord Advocate tells us that, whatever is said, he will oppose every amendment, notwithstanding what the arguments may be in their favour. That is an extraordinary approach.
Lord Elton: Will the noble Lord give way?
Lord Harris of Greenwich: I will gladly give way. I am always delighted to give the floor to the noble Lord, Lord Elton. However, it was an astonishing statement. I have never heard a Minister, during the course of a Committee stage of a Bill, say, "Notwithstanding what may be said on any amendment later in our proceedings, I propose to ask the Chamber to reject it". I have not heard a statement like that from any Minister in any government.
Lord Elton: The noble Lord did not hear the words that the Minister said as a preface to that; namely, that the amendments were tabled so late it was impossible to give them just discussion or reach a fair decision without discussion between stages.
Lord Harris of Greenwich: There are a substantial number of amendments which follow on the Marshalled List which were tabled a significant length of time ago. That is therefore not an argument.
I indicated earlier that I would not invite the Committee to make a decision, but if we continue like this, the temptation to do so, and to do so repeatedly, will become very attractive to some of us.
Lord Thomas of Gresford: I support the Motion that the House be resumed. It is extraordinary that we have the West Lothian question reversed this evening. If I look around the Chamber at the 12 or so people here, the Scots are in a complete minority; there may be three or four of them present. Yet here we are about to embark upon a discussion of the representation of Scottish

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people in Scottish courts by Scottish advocates and solicitors in a system that even I, with some experience of Scottish law, do not fully understand.
It does a disservice to this Chamber that we should be pretending to legislate for a nation and a country which does not have a legislature in this manner, and to be doing it at midnight. I support the Motion.
Lord Macaulay of Bragar: For clarification perhaps I can ask the noble and learned Lord the Lord Advocate whether, by implication or direct invitation, he said that he would consider these later amendments and that he was open to representations from any body involved in their formulation. In other words, a convenient way of dealing with this would be if he would convene a meeting with all parties represented who have tabled amendments, and have a discussion to see whether some consensus on these matters can be reached before Report stage. I would be perfectly happy to attend such a meeting.
I may have been rather churlish when the noble and learned Lord invited me to come and talk earlier in the debate and I said that he should bring legislation here and it should be discussed here. But if he wants to convene a meeting with the Royal Society, the Faculty of Advocates and the Society of Solicitor-Advocates, when we can talk round the table for the benefit of the people of Scotland, I would be happy to accept that invitation. In the meantime, I support what has been said by other Members of the Committee; it is time we went home; we should not discuss the constitution of Scotland at precisely midnight, as the clock now shows.
Midnight
Lord Sewel: I have no criticism of the Lord Advocate on this score. The amendments were put down relatively late. They clearly refer to and affect significant interests in Scotland. It would be wrong for a view to be reached on the amendments prior to those interests, and the interests affected by the amendments one way or another, being consulted. It is quite appropriate that they should be taken away and thought about. The Lord Advocate should be in a position to carry out such consultations as he thinks appropriate.
Lord Harris of Greenwich: After what the noble Lord, Lord Macaulay of Bragar, said, I wonder whether the Lord Advocate proposes to respond. I very much hope he does. The noble Lord, Lord Macaulay, has made a sensible suggestion. We wait with interest to find out what the Lord Advocate is going to say about it.
Lord Mackay of Drumadoon: The Lord Advocate is going to repeat what he hoped he had made clear before. As presently advised, the Government do not find any of the amendments acceptable as some of them were put down very late in the day and others were put down a few days ago. The Government have had ample time to reflect on their consideration of these matters and such consultation as has been taking place over the past few months. It is therefore a matter for Members of the Committee whether they intend to insist on them.
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What I will say is that if anyone wishes to meet me or send me representations I shall be happy to entertain them. I do not think convening a meeting of all interested parties is the way forward in dealing with these matters and I would offer no promise to follow that approach. It would quite probably do more harm than good. However, if individuals, whether Members of your Lordships' Committee or anyone else, wish to make representations, notwithstanding the withdrawal of a particular amendment on this occasion, and there is a case which they wish to explain in writing or orally, I am more than happy to do that and will arrange for appropriate officials to be in attendance if that were thought to be of assistance. However, the fact of the matter is that the usual channels decided that this should be sorted out and that the Committee stage should last for three days. Unless Members of the Committee feel it appropriate to withdraw their amendments, I regret to say that we shall have to go through them one by one. Having explained our view, I think we should move on.
The Earl of Mar and Kellie: Before the noble and learned Lord sits down, can he assure us that adequate time will be given at Report to discuss these difficult issues?
Lord Mackay of Drumadoon: I am sure the noble Earl knows the answer to that question. It is a matter for discussion between the usual channels. It is not for Ministers at the Dispatch Box or for opposition spokesmen at the Dispatch Box to indicate how long we should take at later stages of a Bill which have yet to be reached. That is one of the good reasons why the usual channels are there. It would be wrong for me to offer any comment other than to say that I hear what the noble Earl says.
Lord Harris of Greenwich: I indicated earlier that I did not at this stage intend to suggest that we should vote on the Motion but I must tell the Government quite bluntly that the idea that we should go on night after night behaving in this way and being treated by the Government in this fashion is simply unacceptable. It is no use talking about the usual channels as though we are talking about the Supreme Court of the United States. We are not the Supreme Court of the United States and we are merely told what the Government have decided.
The Government have decided, because they have got their legislative programme in a mess, to give a totally inadequate amount of time to the Bill. That is why we are talking about it at five minutes past midnight. It is not wholly the responsibility of the Lord Advocate, having made a 40 minute speech earlier this evening. I can see an expression of horror on the face of the Government Chief Whip that his noble and learned friend spoke for 40 minutes but I fear I must tell him that he did speak for 40 minutes—50 minutes I am now told. It is getting longer and longer as I speak. So I fear that the Lord Advocate will have a very unattractive meeting with the Government Chief Whip at the end of the debate as to why he behaved as he did. I will do the best I can to protect him. As I have indicated, I do not

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propose to continue this debate. It is necessary, and possibly will be necessary in the future, to raise matters of this sort if we are going to be treated by the Government in the way that we are at the moment on a Bill of major significance so far as concerns Scotland. Having said that, I beg leave to withdraw the Motion.
On Question, Motion, by leave, withdrawn.
[Amendments Nos. 147L to 147ZR not moved.]
Clause 46 agreed to.
Clause 47 [Employment of solicitors in relation to criminal legal assistance]:
[Amendments Nos. 147ZS to 147ZU not moved.]
Clause 47 agreed to.
Clause 48 [Fixed payments]:
[Amendments Nos. 147ZUA to 147ZW not moved.]
Clause 48 agreed to.
Clause 49 [Contracts for the provision of criminal legal assistance]:
[Amendments Nos. 147ZV and 147ZW not moved.]
Clause 49 agreed to.
Clause 50 [Power of investigation of Scottish Legal Aid Board]:
[Amendments Nos. 147ZX to 147JZ not moved.]
Clause 50 agreed to.
Clause 51 [Regulations in relation to criminal legal assistance]:
[Amendment No. 147KZ not moved.]
Clause 51 agreed to.
Lord Sewel Lord Sewel moved Amendment No. 148:
Before Clause 52, insert the following new clause—
VERDICT OF JURY: 10 MEMBERS TO AGREE
(" . After section 100 of the 1995 Act (verdict of jury) there shall be inserted the following section—
"Verdict of jury: 10 members to agree.
100A.—(1) No person shall be convicted of any offence unless 10 members of the jury vote in favour of a guilty verdict.
(2) The verdict of the jury shall be publicly recorded and the number of jurors voting in any verdict shall be publicly announced.".").
The noble Lord said: I am sorry, but I am moving this amendment! Amendment No. 148 may not be the solution, but it is offered in the spirit of a possible solution to the problem of the misrecording of verdicts. The details are in the amendment, but perhaps I may briefly give the Committee the background. There have been at least two recent cases which have caused a degree of concern where the misrecording of a verdict has given rise to public disquiet. On one occasion in 1995 at a sitting of the High Court in Glasgow two youths were allowed to leave the court when the jury foreman stated that the case was not proven when in fact the jury had decided that the accused were guilty. That was the result of the jury foreman wrongly stating a verdict which was in fact completely at variance with the jury's actual decision. There was a second case in November 1996 when Mr. Keith Chisholm was leaving the dock at Glasgow sheriff court after being found not
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guilty by a jury of causing the death of a 14 year-old boy. The jury indicated that an alternative verdict of dangerous driving had not been recorded. Those were two occasions when the verdict of the jury was at variance with what had been said and what was recorded.
This is clearly a matter of significant concern. Those cases were bad enough; but one can think of even worse cases where if the same thing happened—perhaps as a result of accident or ignorance—it would rightly cause great disquiet. We now have an opportunity in this Bill to rectify the position. As I have said, this amendment is offered as a possible solution. I am quite prepared to accept that it may not be the solution, but we need a solution. I beg to move.
Lord Mackay of Drumadoon: I fully appreciate what lies behind the tabling of this new clause, and I share the concern which has arisen occasionally but with unfortunate regularity in recent years. Following the most recent such case, my right honourable friend the Secretary of State wrote to the Lord Justice General to seek his views on what might be done to prevent such occurrences in the future. The Lord Justice General indicated that he too shared that concern and that he had already acted to refer the matter to the Criminal Courts Rules Council for its consideration. Noble Lords will recall that under Section 304 of the 1995 Act such a council is now in existence and is constituted of the Lord Justice General, the Lord Justice Clerk, the Clerk of Justiciary, a further Lord Commissioner of Justiciary and various other persons including sheriffs and two members of the Faculty of Advocates, two solicitors and others with an interest and qualifications in these matters. They are to consider the matter and report back to the court.
Our understanding is that the Lord Justice General has it in mind to deal with the matter in the light of the advice that he has received. He could act by way of Act of Adjournal, a procedure which was discussed earlier, or by way of practice note; but our understanding is that he is as determined as we are that there should be some procedure set down by which these unfortunate occurrences could be eliminated.
We believe that the best way for this to be addressed is for the council to consider the matter at its next meeting. It is composed of those who have vast practical experience. There is no suggestion from the Lord Justice General that he thinks that he does not have the necessary statutory powers to act. On the basis that the matter is being looked at urgently, I hope that this amendment will not be pressed. However, I fully understand why the matter is raised.
Lord Sewel: On the basis of what the noble and learned Lord the Lord Advocate said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.15 a.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 148A:
Before Clause 52, insert the following new clause—
INCREASED PROBATION FOR SEX OFFENDERS
(" . After section 228 of the 1995 Act there shall be inserted the following section—
"Increased probation for sex offenders.
228A.—(1) A probation order made under section 228 above shall in the case of an offender convicted of an offence listed in subsection (2) below be of such duration exceeding six months but not exceeding five years as the court may determine.
(2) The offences to which this section applies shall include—

(a) rape or attempted rape;

(b) sodomy or attempted sodomy where in either case one party does not consent;

(c) lewd, indecent or libidinous behaviour; and

(d) any offence committed by contravention of section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (unlawful intercourse with a girl under the age of thirteen years).".").

The noble Lord said: Amendment No. 148A is a fairly simple amendment with a public input. The side note indicates that the amendment involves increased probation for sex offenders. It is suggested that for certain sex offences set out on page 23 of the Marshalled List a probation order should be imposed of a duration exceeding six months but not exceeding five years, as the court may determine.
The amendment is moved in an effort to keep under review, if not control, sex offenders who have caused so much public disquiet. A probation order can do only what it is said to do, namely, to lay down a set of conditions. If the person who is the subject of the order breaks it he comes back to the court. But in light of recent press reports and public animosity towards paedophiles these people are changing their names. Instead of knowing whether they are back in the community, no one will know whether a sex offender is living next door to a family with young children and so on. To that extent, the probation order will make sure that the identity of the person to whom the order applies is always known to the authorities, whatever he calls himself anywhere else within the community. I commend the amendment to the Committee.
The Earl of Mar and Kellie: This amendment reminds me of the classic disagreement among criminal justice social workers as to whether probation is about routine supervision or the solution of a behavioural modification task. I believe, recognising that most criminal justice social workers view probation as behaviour modification, that five years will be a difficult period to sustain.
Lord Mackay of Drumadoon: I am grateful to the noble Earl for his contribution which bears out the Government's understanding of the current position. Our view is that it would be premature, if not completely unnecessary, to increase the power in the manner proposed, in view of the fact that currently only 4 per cent. of probation orders are for a period of over
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two years. In 1994, which is the last year for which I have statistics, only 62 probation orders were made in the High Court. That represented approximately 1 per cent. of the total number of such orders in Scotland. Some of the offences referred to in the amendment are ones where only the High Court has jurisdiction.
The fact is that no representations have been made to the Scottish Office to suggest that the maximum period should be increased. There is a consultation group in existence which deals with national standards for social work services in the criminal justice system. That group consists of representatives of the judiciary, police, the Association of Directors of Social Work, the British Association of Social Work, the Convention of Scottish Local Authorities and others. The group last met on 3rd March this year. It has it in mind to revise the national standards for probation. I undertake to feed this suggestion into the group for discussion at its next meeting. However, the Government are not persuaded that it is necessary and the noble Earl tends to agree with that view. For those reasons, I hope that the amendment will not be pressed.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. The phraseology does not say that the provision must extend to five years, but it gives the court the power to extend it to five years.
Those of us who read not only the so-called respectable press but the tabloid press are well aware that they have now become—I cannot think of another phrase—bloodhounds. They chase sex offenders all over the place. We know what happened, as no doubt does the noble and learned Lord, in Stirling when the social services department tried to rehabilitate a sex offender. The local people held a demonstration and threatened to break into the house. He had to be removed and goodness knows where he is now.
I hope that the Crown Office will keep an eye on the way the press are following this up because, irrespective of the offence that has been committed, it does not seem fair that people should be pursued for the rest of their lives, in the way some people are now being pursued by the press. With that observation, for what it is worth, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 52 and 53 agreed to.
Clause 54 [Precognitions]:
[Amendments Nos. 149 and 150 not moved.]
Clause 54 agreed to.
Clauses 55 and 56 agreed to.
Clause 57 [Grants for forensic medical services]:
[Amendments Nos. 150A and 150B not moved.]
Clause 57 agreed to.
Clause 58 [Confiscation of alcohol from persons under 18]:
On Question, Whether Clause 58 shall stand part of the Bill?
The Earl of Mar and Kellie: I note that Clause 58 constitutes a separate Bill for England and Wales,

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so we must be careful what is tacked onto the back of this substantial Scottish Bill. I wish to put one question to the Minister. Subsection (1) provides that a police constable who has reasonable grounds for suspicion that a person in a public place is, first, under 18 and, secondly, has alcohol in his possession may require that person to surrender the alcohol to him. Then it quaintly states:
"and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address".
In the event of the person complying, has he committed an offence? I know that subsections (3) and (4) provide that a person who does not comply certainly has committed an offence, but it is not clear whether the under-age drinker in public has committed an offence if he complies with the police request.
Lord Mackay of Drumadoon: He certainly has not committed an offence under this legislation. The offence created by subsection (3) is for a failure to comply with the requirement made out under subsections (1) or (2). Therefore, if one complies with the requirement there is no offence. Off the top of my head, I cannot be sure whether any other offence under the Licensing (Scotland) Act may have been committed too. I rather suspect that it may have been, depending upon where the public place may be. However, as regards this Bill, it is quite clear that if you comply with the requirement made by the police no offence has been committed.
Clause 58 agreed to.
Clauses 59 to 61 agreed to.
Clause 62 [Short title, commencement and extent]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 150C:
Page 71, line 25, leave out ("this section") and insert ("sections 42 and 43").
The noble and learned Lord said: I spoke to this amendment with Amendment No. 147A. I beg to move.
On Question, amendment agreed to.
[Amendment No. 151 not moved.]
Clause 62, as amended, agreed to.
Schedule 1 [Minor and Consequential Amendments]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 152:
Page 72, line 37, at end insert—
("The Criminal Justice (Scotland) Act 1980 (c.62)
. In section 3D(1)(b) of the Criminal Justice (Scotland) Act 1980 (interpretation of sections 3A to 3C), for the words "section 3 of this Act" there shall be substituted the words "section 15(6) of the Criminal Procedure (Scotland) Act I995".").
The noble and learned Lord said: In moving this amendment, I shall speak also to Amendments Nos. 153, 155 and 159. These are technical amendments ghich have no policy implications. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 153:
Page 82, line 27, at end insert—
("() In section 15 (rights of persons arrested or detained), in subsection (6)(b), for the words "actual custody" there shall he substituted the word "care".").
The noble and learned Lord said: I spoke to this amendment with Amendment No. 152. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 154:
Page 84, leave out lines 5 and 6 and insert—
("(14) In section 118 (disposal of appeals)—

(a) in subsection (4)(b), the word "additional" shall cease to have effect; and

(b) after subsection (8) there shall be inserted the following subsection—

"(9) The High Court may give its reasons for the disposal of any appeal in writing without giving those reasons orally.".").
The noble and learned Lord said: This amendment is intended to improve the procedures of the appeal court by providing the court with the option of delivering its opinions in writing without having to read out its reasons in open court.
The current requirement to read out opinions can lead to the time of the senior judiciary being, quite frankly, wasted to a considerable extent. In a recent case where the opinions of five judges had to be read, the exercise took some two and a half hours, time which the Lord Justice General believed could be put to more constructive use.
The amendment comes as a suggestion from him; it has our full support; and I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 155:
Page 84, line 23, at end insert—
("() In section 179(2) (stated case: adjustment and signature) the word "additional" shall cease to have effect.").
The noble and learned Lord said: I spoke to this amendment with Amendment No. 152. I beg to move.
On Question, amendment agreed to.
[Amendment No. 156 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 156A:
Page 85, line 19, at end insert—
("() In section 280 (routine evidence), in subsection (6)(b), for the words "the accused" there shall be substituted the word "he".").
The noble and learned Lord said: This is a minor drafting amendment with no policy implications. I beg to move.
On Question, amendment agreed to.
[Amendment No. 157 not moved.]
Schedule 1, as amended, agreed to.
Schedule 2 agreed to.
Schedule 3 [Repeals]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendments Nos. 158 and 159:
Page 90, line 9, at end insert—("1993 c. 24.The Video Recordings Act 1993. Section 5.")
Page 90, line 51, column 3, at end insert— ("In section 179(2), the word "additional".")
The noble and learned Lord said: I spoke to these amendments with Amendment No. 135. I beg to move.
On Question, amendments agreed to.
Schedule 3, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at twenty-nine minutes before one o'clock.