Crime and Punishment (Scotland) Bill

HL Deb 10 March 1997 vol 579 cc89-156

House again in Committee on Clause 26.

[Amendment No. 133 not moved.]

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 Drumadoon

I 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.

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 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 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 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—

1. (a) to which this section applies; and
93
2. (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—

1. (a) which did not subsist, or was not punishable with imprisonment, immediately before the commencement of this Part: or
2. (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 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 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.

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

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.

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". 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 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 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 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 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 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.

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 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 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.

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 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 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 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 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 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 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 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 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.

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.

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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) may be reduced, up to a prescribed maximum; and
2. (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 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 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 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.

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 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 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 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—

1. (a) life licence;
2. (b) supervised release order; or
3. (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—

1. (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
2. (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 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 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 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 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 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 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—

1. (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
2. (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.

(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 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—

1. (a) is convicted on or after the relevant date of a relevant offence and is sentenced to imprisonment;
2. (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;
3. (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 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 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—

1. (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
2. (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—

1. (a) is no longer serving his sentence of imprisonment, subsections (3)(a), (5) and (6);
2. (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—

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

1. (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
2. (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—

1. (i) conspiracy or incitement to commit; and
2. (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 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 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 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 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.

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 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.

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 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 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.

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 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 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 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 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—

1. (a) rape or attempted rape;
2. (b) sodomy or attempted sodomy where in either case one party does not consent;
3. (c) lewd, indecent or libidinous behaviour; and
4. (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 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, 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 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 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 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 moved Amendment No. 154: Page 84, leave out lines 5 and 6 and insert— ("(14) In section 118 (disposal of appeals)—

1. (a) in subsection (4)(b), the word "additional" shall cease to have effect; and
2. (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 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 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 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.