Lords Sitting of 18 March 1997

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

London Underground: Privatisation Advisers
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean asked Her Majesty's Government:
How much Civil Service time was spent and what costs were incurred in developing the policy and preparing the statement on the privatisation of London Underground which was presented to Parliament on 25th February.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, all the preparation work relating to the London Underground privatisation policy was carried out by civil servants already in place in the course of their normal duties. Departmental civil servants do not generally log their time spent on individual tasks.
Baroness Symons of Vernham Dean: My Lords, in thanking the Minister for his Answer, perhaps I may point out that the original Statement was made on 25th February, when there was not the slightest chance of implementing the proposals before the general election, and also that in another place on the same day his right honourable friend the Secretary of State said that he hoped that the decisions of electors in London would be influenced,
"by our plans for London Underground".—[Official Report, Commons. 25/2/97; col. 164.]
Is the drawing up of the Conservative Party's manifesto not a most inappropriate use of politically neutral civil servants?
Viscount Goschen: My Lords, that is nonsense. The duty of civil servants is to advise Ministers and to help to implement their policies. It is entirely appropriate that departmental civil servants working on London Underground matters should advise the Government on their intentions to produce a privatisation policy. A small group of civil servants already working within the department did just that. There is no question of impropriety. Indeed, I was pressed on a number of occasions by Opposition Front Bench spokesmen to reveal our intentions towards London Underground. When I came to the House and made a Statement, I was then criticised for making it. Noble Lords cannot have it both ways.
Lord Gisborough: My Lords, in view of the overwhelming success of every privatisation—a fact accepted by every country, including Russia and China, but not by the party opposite—would the Minister
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give an undertaking that, when the Government are returned after the election, they will proceed with the privatisation of London Underground?
Viscount Goschen: Yes, my Lords, it is our firm intention to continue with this policy and it is my firm expectation that it will be opposed by the party opposite, just as they have opposed every privatisation so far, although they generally change their mind when it is shown to work.
Lord Berkeley: My Lords, does the Minister recall signing Questions of Procedure for Ministers? It is stated therein:
"Ministers must not use public resources for party political purposes"?
Is this not a flagrant breach of that code of procedure?
Viscount Goschen: No, my Lords.
Lord Clinton-Davis: My Lords, I believe it is appropriate on this occasion, since the Minister is soon to depart, and as this is the last transport Question of this Parliament, to say that throughout the time he has held his office he has been unfailingly courteous, and we appreciate that. There is nothing at all wrong with his courtesy; it is just his answers that are unacceptable. Does the Minister not recognise that there is a world of difference between making a statement several weeks in advance of the election and making one which is clearly stated to be part of the election manifesto and promise of his party? Does he not see that there is something slightly remiss in causing the Civil Service to help to develop the Tory Party manifesto?
Viscount Goschen: My Lords, back in October my right honourable friend the Prime Minister said that we wanted to examine whether the benefits of privatisation, which has been shown to work with the heavy railway industry, could be applied to the London Underground. Subsequently civil servants, quite properly, took part in working up this policy to the point where it was possible to come before your Lordships' House with a Statement. There is nothing whatsoever wrong with that. The Government would never ask civil servants to do anything which was in any way political.
Lord Elton: My Lords, would my noble friend not suggest that the party opposite fears the results of this expenditure being very popular with the electorate? Is it not difficult to understand how it can object to this unless it thinks that the policy is right?
Viscount Goschen: My Lords, my noble friend is quite right. It is also interesting that most of the recent questions with regard to London Underground have carefully steered away from the policy itself and concentrated on the issue of the three principal civil servants who helped with the drawing-up of the plans, matters concerning consultants, and so on. The fact is that every policy of privatisation with which we have

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come forward has been opposed tooth and nail by members of the party opposite but they have come round to it. I am sure that they do not want to make the same mistake again.
Lord Bruce of Donington: My Lords, how is it that the noble Viscount finds difficulty in answering that part of my noble friend's Question that relates to the costs incurred by the Civil Service in view of the fact that, whenever the Government have a question put to them which they do not wish to answer, or are afraid to answer, it is their practice to be able to cost quite accurately the amount of time spent on answering a Parliamentary Question? Why can the noble Viscount not provide even an approximate figure—the House will always accept a degree of approximation—in answer to the Question raised by my noble friend?
Viscount Goschen: My Lords, when we consider Parliamentary Answers to Written Questions, we know that there are limits to the amount of money that can be spent on finding out the answers. The noble Lord will know that. Our policy is to examine the costs very closely. If we know that they will be above a certain amount, we would give the appropriate disproportionate cost answer. But that is a quite separate issue. Certainly, the work that has been taken forward on developing that policy was done by civil servants already in post, civil servants who are already considering London Underground matters—the privatisation, PFI, core funding or whatever. They do not log their time. So it is not possible for me, however much I should like to do so, to come forward with an answer to the noble Lord's question.
Lord Clark of Kempston: My Lords, does my noble friend agree that one of the duties of the Civil Service is to control public expenditure? If time is spent by civil servants on privatisation, whatever it may be, the cold fact of the matter is that whatever the cost has been to the Civil Service, the privatisation policy of this Government has resulted in a reverse of the £50 million per week spent by the taxpayer becoming now a receipt of £60 million a week to the Exchequer.
Viscount Goschen: My Lords, my noble friend's sentiment is quite right. That is why noble Lords opposite have stopped opposing some privatisations which they so bitterly opposed at the time. It is worth noting that £2.6 billion a year in taxes is now contributed by privatised companies which paid only £37 million a year when they were operating in the public sector.
The Lord Privy Seal (Viscount Cranborne): My Lords, I hope noble Lords will forgive me, but I note that we have a full quota of Questions today. I wonder whether the House might feel that the time has come to move on.

Industrial Tribunals: Members' Expenses
2.45 p.m.
Lord McCarthy Lord McCarthy asked Her Majesty's Government:
Whether the data which lay behind the recent statement of the Central Office of Industrial Tribunals to the effect that over half of the expenses claims by members of tribunals "are for less than £10 and a fifth for less than £5" include both travel and subsistence claims; and how far the levels of claims vary from region to region and by reference to whether members are employer or employee nominees.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, the data, based on a random sample of claims from across Great Britain, included both travel and subsistence claims. The proportion of claims for less than £10 varied between 48 per cent. and 76 per cent. across the industrial tribunals' five operational management commands in England and Wales and Scotland. The sample did not identify separately claims from employer and employee nominees.
Lord McCarthy: My Lords, I thank the noble and learned Lord for that Answer. Surely he must accept that it is not satisfactory. For example, we do not know the proportion between employer and employee representatives and we do not know what will be the consequences of those decisions. Will he accept that we are creating a situation in which side members and parties who are forced to travel more than 10 miles by train or 20 miles by coach will be out of pocket? On the noble and learned Lord's own estimates, that will have a disproportionate effect on people who live a long way from the tribunals and have to spend that money. Does he agree that there are better ways of saving the money, if it has to be saved, than the way advanced by the Government?
Lord Fraser of Carmyllie: My Lords, I thought it was clear from the first Answer that I gave that the majority of claims are for less than £10 and a third of them for less than £7. Those members were receiving £119 as a daily fee and that has now gone up to £129. It does not seem to me that there is any significant loss to anyone who participates and indeed there will be some who will gain from it. I am bound to say that I do not consider that this is a matter of any great substance. Indeed, as the letter went out to tribunal members, the present arrangements were being changed, as was simply spelt out, because they were regarded as being unnecessarily cumbersome. I should have thought that the detail that I gave in the Answer would reveal that that was a perfectly sensible decision at which to arrive.
Baroness Gardner of Parkes: My Lords, I declare an interest as a member who sits on a tribunal panel. Is it not a fact that that letter gave the news that the increase would be £10 on the daily rate? Did it not also give the reason that it was to save a very large amount of money in administrative costs? There were costs in

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checking those very small amounts—certainly in London it might cost £1.50 for transport each way and there was a luncheon allowance of £4.25 only if one sat for the whole day. As I understand the letter of explanation, it was to save those very heavy administrative costs.
Lord Fraser of Carmyllie: My Lords, indeed, I thought that was adequately encompassed in the description of "unnecessarily cumbersome". I should have thought it acceptable that if there is an increase of £10 in the daily fee and the majority of claims are for less than that sum, it is a matter of no great substance. It might have been a matter of greater substance if there were members who had to participate in the tribunal away from their normal office or hearing centre and they were caught in that. There might then be some point of concern. But, as the letter to which my noble friend referred says, if they go to an unusual place to sit, they will of course be paid expenses if they are required to sit in that alternative office.
Baroness Turner of Camden: My Lords, will the Minister be kind enough to say whether the presidents of the industrial tribunals—that is the president of the tribunal in Scotland and the one for Wales—were consulted and whether any arrangement was made to consult the regional chairmen who are responsible for administering the tribunals? Was any consultation along those lines conducted before the changes were made?
Lord Fraser of Carmyllie: My Lords, I am not sure whether those particular persons were consulted. But, as the noble Baroness will appreciate, there is no representative organisation for the 2,500 or so members. Certainly the chairmen themselves are not included within the arrangement, for the very good reason that it will avoid any potential conflict of interests. Because they are legally qualified in the areas in which they practise, they are frequently required to participate in these tribunals well away from the areas in which they work. For that reason, they are not included within the arrangement.
Lord Monkswell: My Lords, the whole House appreciates the fact that administrative savings may be made by making a single lump sum payment. But we are concerned that parties, witnesses and members of industrial tribunals who incur exceptional significant travelling expenses will not be able to claim them. Can the Minister say whether it will be possible, in exceptional circumstances, for legitimate high travelling expenses to be reimbursed?
Lord Fraser of Carmyllie: My Lords, sometimes I get the mood of the House wrong, but I do not get the impression today that it is particularly concerned about this matter. As I indicated, exceptional circumstances are provided for. If a member is required to go away from the location at which the tribunal usually sits, travel expenses would be paid additionally.
Lord McCarthy: My Lords, does not the Minister agree that the fact that this House is not concerned is what
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is wrong with this House? This House should be concerned. This House does not know, on the basis of the Minister's statement, whether all the 50 per cent. or so of people who do not need the money are employer representatives and it does not seem to care. Is that not disgraceful?
Lord Fraser of Carmyllie: No, my Lords.

Parkhurst Prison: Suspension of Governor
2.50 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey asked Her Majesty's Government:
Whether they remain of the opinion that the Home Secretary was correct in telling the House of Commons on 19th October 1995 that "there was no question of overruling the director-general" of the Prison Service on the suspension of the governor of Parkhurst Prison.
The Minister of State, Home Office (Baroness Blatch): Yes, my Lords.
Lord McIntosh of Haringey: My Lords, is not there a conflict of evidence, if the Government are so satisfied, between the Answer we have just been given and the evidence given by Mr. Derek Lewis in his book, with which the Minister will no doubt be familiar? It reported the Permanent Secretary as saying that, if he did not suspend Marriott—the governor of Parkhurst—he would go to the House that afternoon and announce that he had been sacked.
Baroness Blatch: My Lords, I am familiar with the book; it is misleading and inaccurate. The Home Secretary was not only anxious about that affair, he also needed to be consulted and had a right to know. There was grave concern about the escapes from Parkhurst. They worried the Home Secretary, as they should have done. He was entitled to be consulted and was consulted. The book is misleading and inaccurate.
Lord Merlyn-Rees: My Lords, given the status of the Prison Service Agency, could the Home Secretary have overruled the director of the Prison Service on this matter?
Baroness Blatch: No, my Lords, he could not.

European Union Development Council
2.52 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What was the outcome of the recent informal European Union Development Council meeting and what will be its implications for the aid and development policy of Her Majesty's Government.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, Ministers discussed a wide variety of topics, including coherence of policy between development and other European Union policies, the reform of the UN, the future of the ACP/EU relations and the situation in a number of countries where there is conflict. I stressed the importance of setting up clear institutional arrangements to ensure coherence on food security, fisheries, migration and conflict prevention and management. As this was an informal council, no formal decisions or conclusions were adopted. However, we expect the issues to be taken forward in other fora, including the June development council.
Lord Judd: My Lords, I thank the Minister for that reply. I am sure she will agree that it is important that we know what we will inherit on the European front when we take office in May.
Did the meeting make progress on better arrangements for co-ordination in responding decisively and effectively to acute humanitarian challenges, like that in Albania, as regards both short and long-term needs? What was agreed on more timely action to defuse developing crises in time and prevent human catastrophes on the scale of Albania? In relation to food security, what progress was made in dealing with the appalling way in which the common agricultural policy, with its consequential food dumping on third world countries, actively undermines the development priorities both of the Union and of individual member countries?
Baroness Chalker of Wallasey: My Lords, the noble Lord asks a whole list of questions. The evening discussion on humanitarian issues was enlightened by the presence of the EU envoy, Aldo Ayello, and the UN and OAU envoy, Mr. Mohamed Sahnoun, when we discussed in detail the questions worrying all of us on eastern Zaire, Rwanda, Burundi and the general Great Lakes problem. We also discussed Liberia and Sierra Leone, Angola, Afghanistan and Bosnia. A much greater understanding was achieved in that meeting.
In addition to those discussions, we had a useful discussion on food security, as I mentioned. Everyone agreed with the proposals that I have now put through twice on coherence, so that the decisions that are made in one committee of the European Union—such as that on export refunds for beef destined for southern Africa—should not be upset by decisions in another. The discussions on food security will need to be taken forward in the working groups of officials and will come to a formal council when decisions can be adopted. The general discussion was in a firm sense "forward" and it will be something to which I shall look forward to taking forward after the general election.
Lord Redesdale: My Lords, can the Minister say whether the Lomé IV convention was discussed at the meeting? If so, was any agreement for refinancing
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reached on that? Can she say also whether the issue of negotiating the budget which is to take place in 1999 was discussed?
Baroness Chalker of Wallasey: My Lords, there was no discussion on the refinancing of Lomé, nor on the budget. They would be proper topics for a formal development council. We had a preliminary exchange of views in November's development council on the future of Lomé. I put forward a six-point plan on practical improvements for the delivery of aid, on simplification, programming, allocation, concentration, targeting and on management. They were discussed further in the informal council.
Lord Avebury: My Lords, did the meeting receive any information about the current situation in Liberia, of a more recent date than the Minister's last letter to me in which she said that 23,000 of the troops of the armed factions had by then been demobilised and that the Government were exploring the possibility of international assistance for the forthcoming elections there? Does not the noble Baroness believe that it is time to reconsider the proposals that were made by Mr. John McIntosh for resuscitation of the rubber industry in Liberia, which we had the pleasure of discussing with her some time ago? That would implement the agreement by ECOWAS that demobilisation and development had to go hand in hand in Liberia.
Baroness Chalker of Wallasey: My Lords, to the best of my memory, slightly higher figures than the ones quoted by the noble Lord were discussed at the meeting because more soldiers have now come forward to be demobilised. There was a general feeling that the direction of progress was positive in Liberia and there was an understanding that international development was much needed. We had no specific discussion about the rubber industry, but that is a proposal which, if security is maintained in Liberia, can be taken forward. I look forward to seeing that that is done.
Lord Judd: My Lords, can the Minister clarify whether she is content that the evidence is contained in the response to Albania that better arrangements for co-ordination are working? Can she also clarify whether she and her fellow Ministers were able to examine the tendency whereby in response to needs within—for example, France and Germany—increasingly resources are going to North Africa and East and Central Europe at the expense of the poorest countries? I understand that at the meeting the Minister bade farewell to her fellow Ministers. Can she clarify whether that was done in a personal position or on behalf of the Government?
Baroness Chalker of Wallasey: My Lords, Albania was not discussed to the extent that the noble Lord seems to imagine in the actual sessions that were held because on 28th February the situation was not as grave as it has since become. What is absolutely clear is that all member states were minded to give whatever help was practical. At the informal General Affairs Council held last weekend in Appledorn, the Foreign Secretary

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took forward proposals for an EU mission to Albania which will go in. That mission will seek to find out how best further help can be given. However, given the information in the newspapers over the past few days, I should be very surprised if the noble Lord had not realised that the insecurity there will make it very difficult to give the help which we would genuinely like to give. Nevertheless, we are working on this matter, and I believe that we will be able to help Albania. But Albania also needs to decide to help itself.
Lord Rotherwick: My Lords, what environmental issues were talked about at this informal meeting and what environmental items will my noble friend implement after May?
Baroness Chalker of Wallasey: My Lords, there were no specific items on the environmental agenda, but in discussing the questions of fisheries and of food policies in the developing world it was made absolutely clear that we should be ensuring that environmental concerns are considered as a mainstream issue in all the policies taken forward. That is why the discussions on coherence are so important. One of the frustrations that everyone finds is when different parts of the Commission do not exchange the information that they should which could enhance the development of the poorest countries. That is the end to which the British development programme is devoted—to enhance the needs of the poorest people. That is why we are concentrating our aid there, but we shall be discussing that matter on Thursday. In environmental terms, I can tell my noble friend only that the programme of more than 300 environmental projects across the world—some in forestry and some in looking after the flora and fauna—are all going forward. None is short-term. I hope that they will continue to grow, as they have grown very decisively in the past five years.
Lord Bruce of Donington: My Lords, can the Minister give some indication as to why it was decided to hold informal meetings to discuss these matters as distinct from the calling of a formal meeting? I am quite sure the noble Baroness can give the House a good reason for it. The question is by no means hostile to her intentions. I should like to know why the decision was made to have informal meetings. Was it because, for example, one would not have to have a communiqué after an informal meeting? Perhaps the noble Baroness will explain.
Baroness Chalker of Wallasey: My Lords, it has become customary in each presidency to devote a weekend or part of a weekend to informal discussions on a topic which is not allowed sufficient discussion, particularly in the case of development, at the formal council which takes place only once every six months. During the previous two Dutch presidencies we had informal development councils. It has always been the practice of the Dutch Government during their presidency to hold an informal development council in addition to the development council. My experience is that such an informal discussion often helps to get sensible discussions out of the development council.
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That is because Ministers will talk freely to one another with fewer prepared briefs than they sometimes have in development councils. The costs need to be watched but it is a useful practice if there is a proper agenda with proper objectives.
Baroness Farrington of Ribbleton: My Lords, as Albania is one of the poorest countries in Europe, does the Minister agree that the distribution of food aid is urgently needed? Does she further agree that at the appropriate stage it is important to offer training and advice to ensure that a stable government pay proper regard to decentralising power and strong local government as opposed to a centralised system of government? Proper training should be offered when requested to help develop a separation between the media—in particular television—and government and police.
Baroness Chalker of Wallasey: My Lords, the preponderance of agricultural work in Albania means that there are not distinct food shortages across the country as a whole. There are some localised shortages at the moment. We are watching that carefully. However, it is a mainly agricultural country and is therefore in a position on many food stuffs to continue to feed its people, provided people are devoting themselves to the land and not to fighting. The noble Baroness asked about good government. There are many ways in which the West can help good government to be developed and, as the noble Baroness knows, there are many British institutes which are willing and able to give such advice.

Future Business
3.5 p.m.
Lord Strathclyde: My Lords, following my announcement yesterday I am now in a position to announce further business after discussions within the usual channels. I should begin by saying that, if the Merchant Shipping and Maritime Security Bill is returned from the Commons in the next few moments as expected, the House will be asked to consider the Message forthwith at the start of the dinner break this evening.
Perhaps I may also say a word about the arrangements for Friday. The House will sit at 11 a.m. for Prorogation. My noble friend Lord Archer of Weston-Super-Mare and the noble Lord, Lord Chalfont, have kindly agreed not to proceed with their business scheduled for that date.
My noble friend the Lord Privy Seal will in a moment move a Business Motion which will suspend certain Standing Orders. The rest of my announcement is, of course, subject to that. The House will, however, wish to know that, if my noble friend's Motion is agreed to, the Clerk of the Parliaments has agreed that the Public Bill Office will accept amendments to any Bill in advance.

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As far as tomorrow is concerned, I can inform the House that my noble friend Lord Elton and the noble Countess, Lady Mar, have kindly agreed to withdraw their balloted Motions for short debate. Steps are being taken to inform those noble Lords who have put down their names to speak in these two debates.
The business for tomorrow, Wednesday, will accordingly be as follows: the Police (Property) Bill, Third Reading, followed by the Second Reading and remaining stages of the Finance Bill; further consideration on Report (and remaining stages) of the Education Bill; the Crime and Punishment (Scotland) Bill, Report (and remaining stages); the Building Societies Bill, Second Reading (and remaining stages); the Confiscation of Alcohol (Young Persons) Bill, Committee (and remaining stages); the Public Entertainments Licences (Drug Misuse) Bill, Report (and remaining stages).
The following business is proposed for tomorrow's dinner break, at 7 p.m., when dinner will be available in the Dining Room: Contract (Scotland) Bill, Committee (and remaining stages); the Scottish Legal Services Ombudsman and Commissioner for Local Administration in Scotland Bill, Committee (and remaining stages); the Flood Prevention and Land Drainage (Scotland) Bill, Committee (and remaining stages); the Welsh Development Agency Bill, Committee (and remaining stages); and the Prisons (Alcohol Testing) Bill, Committee (and remaining stages). There will also be an opportunity to deal with the Sexual Offences (Protected Material) Bill, Third Reading. Furthermore, in the dinner break there will be a Motion moved by the right reverend Prelate the Bishop of Bristol to approve the Church of England Pensions Measure. A number of affirmative instruments will also be moved in the dinner break.
It will not have escaped your Lordships' notice that my noble friend Lord Marlesford has an Unstarred Question which is, as always, entered last on the Order Paper. It is proposed to leave that on the Order Paper. I am also able to announce the following business for Thursday, but the House will also be asked to consider any Messages that are received from another place. I can confirm to your Lordships that dinner will be available on Thursday evening. There will be the Third Reading of the Building Societies (Distributions) Bill; the National Health Service (Primary Care) Bill, Consideration of Commons Amendments; if the Bill is received from the Commons, the Police Bill, Consideration of Commons Amendments; the Social Security Administration (Fraud) Bill, the House to be again in Committee, and it is expected that we shall complete all remaining stages on that day. The Sex Offenders Bill, Committee and remaining stages, will be taken.
If the following Bills are received from the other place they will be taken; namely, the Appropriation Bill, Second Reading and remaining stages; the Birds (Registration Charges) Bill, Second Reading and remaining stages; and the Police and Firemen's Pensions Bill, Second Reading and remaining stages. A number of affirmative instruments will also be moved.
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I hope that your Lordships agree and recognise that we have plenty of business to be getting on with and that we should now proceed as quickly as we can.

Building Societies Bill
Brought from the Commons; read a first time, and to be printed.

Business of the House
3.11 p.m.
Viscount Cranborne: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the provisions of Standing Order 38 (Arrangement of the Order Paper) be suspended until the end of the Session to give Her Majesty's Government the power to arrange the order of business; and that Standing Order 44 (No two stages of a Bill to be taken on one day) be suspended for the same period.—(Viscount Cranborne.)
Lord Ewing of Kirkford: My Lords, perhaps I may press the Lord Privy Seal a bit further on the business statement. At first sight, it is reasonable to argue that the announcement of the date of the general election is the background to the statement. I shall not detain your Lordships long, but perhaps for a minute we can examine just exactly what has happened. The Government are taking what are really quite draconian powers at this late stage of a Parliament. To be fair to the Prime Minister, he has said repeatedly that the date of the general election would be 1st May. He has said that time and time again. In order to allow for polling day on 1st May, the latest date for the dissolution of Parliament will be Wednesday 10th April. Monday 8th April is the date for dissolution. It has always been known that the Easter Recess was a factor in the business coming before your Lordships' House.
How have the Government got themselves into a position where there is so much business left over at this late stage? When the loyal Address was made at the State Opening of this Session of Parliament, it was assumed that the business in that address was sufficient only to take us up to the date of the general election. These are quite draconian powers for any government to take to themselves. I say in conclusion that my main reason for raising this matter is to say to my noble friends on the Labour Front Bench that it is my earnest hope that the incoming Labour Government will be much better business managers than the outgoing Conservative managers.
Lord Rodgers of Quarry Bank: My Lords, I oppose the Motion moved by the Lord Privy Seal. I do so principally on the ground that it requires the House in less than 24 hours to complete the Crime (Sentences) Bill, which has been allocated today as the first day of the Report stage. Those of us who have had responsibility either in this place or elsewhere recognise that there are problems for a government on the eve of

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dissolution. The noble Lord has said that the problems faced by the present Government, well spelt out in the statement made by the Government Chief Whip, are of their own making. They knew the timetable for the dissolution and, indeed, they could choose the date. Yet they chose at the time of the Queen's Speech to introduce into your Lordships' House or another place, Bills of such complexity and importance that their progress was bound to be slow. So I believe that none of us needs to have sympathy for the Government in their dilemma because they have brought it entirely upon themselves.
I look back to the occasions when it was necessary to discuss with the government of the day what the concluding business should be. It seems to me that the formula which was always adopted was threefold. First, the Government could drop altogether Bills which they felt were too complex, little advanced or so controversial that it was unreasonable to expect them to make progress before the dissolution of Parliament. Secondly, they could allow adequate time for scrutiny and debate even in the few remaining days. I say to the Government that there is no reason why your Lordships' House should not meet next week to conclude this business. There is no reason at all why the business should be crammed in for today, tomorrow and Thursday. Indeed, before the Prime Minister made his announcement and visited Her Majesty the Queen, it was widely understood that your Lordships' House might well return after Easter. So there is no reason at all why the Government should not allow this House to perform its time-honoured task of scrutiny on the basis of its own timetable for the general election.
The third point is this. There are some Bills that should be dropped and some that should be proceeded with. But every government at this juncture surely has discussions in this House not only with the Labour Party but with other parties, the Cross-Benchers and all Members of your Lordships' House as appropriate. It is reasonable to discuss a compromise which will give the Government at least some of what they want, but nevertheless recognising the strength of opinion elsewhere.
As regards the Crime (Sentences) Bill, to which I refer in particular, there is no proposal to drop it, although many of us believe that that would be by far the better course. There is no proposal to allow adequate time for scrutiny and debate. We may find it necessary to debate this measure through the night and into the following day. Neither is there any proposal for compromise.
Your Lordships will remember that on the first day of Committee stage of the Bill we debated a very important amendment standing in the name of the noble Lord, Lord McIntosh of Haringey. Your Lordships carried that amendment, and not simply in the name of the party of the noble Lord. The majority of those who voted for the amendment, which was 103 Members of your Lordships' House, were drawn from these Benches, the Cross-Benches, the Government Benches and the Bench of Bishops, too.
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I had supposed that as regards the third possible course the Lord Privy Seal would inform us this afternoon. Perhaps he is still to inform us—or perhaps that task will fall to the noble Baroness, Lady Blatch—but we still do not know. But if we were told that the Government will not seek to overturn the decision of your Lordships' House and another place at least there would be an element of compromise which could be considered. However, there has been no such breath of change on the part of the Government. So the Bill is not to be dropped or scrutinised and there is to be no compromise.
I revert to what I believe has been the custom and practice. If it has been abandoned in recent years so much the worse and it should return. It is for the Government to look at three kinds of Bills. The first are those Bills which are necessary by common consent during the period of an election; for example, it might be a Bill for revenue purposes. I do not believe that anyone would dispute that your Lordships have a very limited role in that respect and would oppose such a Bill going through the House. There might be a counter-terrorism Bill which needed renewal. Nobody, certainly not noble Lords on these Benches, would dispute the need to make progress on such a Bill. There might be an emergency Bill which comes forward unforeseen and out of the darkness. But there are no Bills here which have come forward as being unforeseen. They are Bills which were laid before your Lordships' House or another place months ago. So there is no emergency in the list of Bills to which reference has been made.
Thirdly, there are Bills on international affairs. The ground for Parliament considering them is that the world will not wait. That is a perfectly reasonable proposition so Parliament must pass the legislation. But the Crime (Sentences) Bill is not a necessary Bill; it is not an emergency measure and has no international implications. If the Government are so confident of their prospects it would be easy to drop it and return to it in the first Queen's Speech of the next Parliament. But if there is doubt about whether the Government will be in a position to introduce the Bill, is it right that at this juncture, at this 11th hour and 59th minute, a Bill with constitutional implications should be carried through the House?
I refer again to those who have spoken against the Bill in whole or in part. There have been speeches against the Bill from the principal Opposition Benches. There have been speeches against the Bill made by those on these Benches which have been loud, clear and persistent. Noble Lords on the Cross-Benches have spoken against it as have those on the Government Back Benches. This is a Bill which is opposed not only by one of the Opposition parties but it is opposed on all sides of the House. It changes the relationship between Parliament and the judiciary. It makes a major change in our penal system in relation to sentencing and it has been criticised heavily inside the House and outside it.
I do not hold the noble Viscount the Lord Privy Seal nor the noble Lord, Lord Strathclyde, responsible for the problem which your Lordships' House faces. Both noble Lords are very cognisant of the wishes of your

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Lordships and are very sensitive to the atmosphere of this House. Decisions have been made elsewhere, either by the Cabinet colleagues of the noble Viscount, Lord Cranborne, or—and I hope it is not the case—with the connivance of one of the spokesmen of Her Majesty's Opposition. We do not know and I make no accusation. I hope that the noble Lord, Lord McIntosh of Haringey, will confirm his support for my wish and the wish of the House to proceed with this Bill following a reasonable timetable.
I ask the noble Viscount, Lord Cranborne, to go back to his colleagues and to ask them to think again and to listen to the voice of your Lordships. He knows what your Lordships' House believes. I ask him to reconsider this matter and to make a further Statement later today. Alternatively, many of us will have to vote against the Motion standing in his name.
Lord Barnett: My Lords, perhaps I may say a few words. I have not spoken against the Crime (Sentences) Bill because there are many noble and learned Lords who have much greater knowledge than I do and I respect their views very much indeed, not least those of the noble Lord the Lord Chief Justice, the noble Lord, Lord Carlisle, and many others. Therefore, I have not spoken on the Bill.
However, I understand that there may have been a deal to agree some form of Bill and I should be extremely concerned if that were the case. Whatever deal may or may not have been struck, I hope that noble Lords will ignore any such deal and vote today in the way that they think right. That may mean that the Bill could not go through in the present Parliament. I do not believe that that would be any kind of disaster. I hope that there may be a better Bill in the next Parliament on the same subject, whichever party is in government. I say nothing about that at the moment.
But I am very concerned that your Lordships should not feel bound to agree to the Crime (Sentences) Bill without the amendments which this House wishes to carry. Therefore, I hope that your Lordships will ignore any deals, formal or informal, which may have been made.
Lord Carlisle of Bucklow: My Lords, I rise to support what has been said by the noble Lords, Lord Rodgers and Lord Barnett. Whatever may be one's views of the merits of the Bill, I hope that we all agree that it is a Bill of extreme importance, and it is also a controversial Bill. It is important because it changes in major ways the sentencing policy which has been used in the courts of this country for many years. It introduces principles which have not been part of our criminal law in the past—whether it is in the extension of the number of mandatory life sentences or in bringing in mandatory sentences for other types of offences.
Part II changes completely the proposals for early release which were introduced in this country as recently as 1991 and which are now proposed to be changed totally by the Bill.
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One reason that the Bill is controversial is that, in those aspects which I have mentioned, it is in total contradiction to the expressed views of this Government a few years ago in the White Paper and the legislation which they then passed.
Secondly, it is controversial not only because of differences within the party's approach but it is controversial in that it is opposed almost unanimously by those who are required to conduct business in the courts on our behalf. We have heard the views of the noble and learned Lord the Lord Chief Justice and many other senior judges. But I believe also that the vast majority of the judiciary as a whole, who will be required to implement it, opposes its principles.
That being so, if ever there was a Bill which required careful and sensible debate and consideration by this House, it is this Bill. I happen to believe that sentencing policy should not be a matter for party political debate. Where possible, it should be a matter for consensus between the parties and, even more so, a policy acceptable to those who are required to impose it. Therefore, it is vital that any such alteration to policy should be considered away from the fevered atmosphere of electioneering and should be given the full and detailed consideration that this House can give to such a Bill. We should take account of the views expressed in this House by senior members of the judiciary who are Members of this House.
What is the position? We have now had four days in Committee. We now start Report stage with 148 amendments on 23 pages, many of which are brought in by the Government themselves. None of those matters has yet been debated. Where we had debates, we made important changes to Clauses 2 and 3. But the whole issue of Part II was taken away to consider what amendments the Government should make. Those amendments were tabled last Thursday. They require greater consideration than can be given to them by taking all stages of the Bill today.
Finally, as the noble Lord, Lord Barnett, said, there is absolutely no emergency or hurry with this Bill. It is accepted by the Government that the implementation of the Bill will depend on resources, and particularly resources within the Prison Service. It is accepted today that those resources of the Prison Service are stretched to a degree and it is not proposed by the Government, in their own White Paper and in the statements made in this House, that the main controversial issues in the Bill—that is, mandatory sentences for burglary and a change of rules regarding early release—should come into force before, at the earliest, October 1999.
In those circumstances, there can be no urgency at all with this Bill and I ask the noble Viscount the Lord Privy Seal to reconsider the matter and to give this House adequate time to take into account the concerns which have been expressed by all those involved in the day-to-day working of our courts and the prison governors who are responsible for the organisation of the new proposals for early release. I see no urgency. Like the noble Lord, Lord Rodgers, I believe that this Bill could come back to the House after the general election without any difficulty and loss following further consideration—and in a better form than its present one.
3.30 p.m.
Lord McIntosh of Haringey: My Lords, the Motion before the House is not about the Crime (Sentences) Bill but about the business of the House between now and Prorogation and Dissolution. Such a Motion is far from unprecedented. I understand that, if not universal, it is the normal procedure of the House when Dissolution has been announced. However, I well understand the position of those noble Lords who feel strongly that a Business Motion of this kind should not apply to the Crime (Sentences) Bill. They will know that I have felt sufficiently strongly in opposition to the Bill to move amendments, a few of which have achieved the assent of your Lordships but many of which have not.
In these circumstances, it seems to me that there are three possible options for the future of the Crime (Sentences) Bill. One is that it should complete its proper parliamentary scrutiny in both Houses. For that to happen the House would have to sit next week and probably after Easter because the time available for it did not allow for Report stage to be completed before 27th March. That would have meant that Third Reading and Commons consideration of Lords amendments would have had to take place after Easter. It is a fact, which we do not have to applaud or disapprove of, that that option is not open to us.
The second option, as referred to by the noble Lord, Lord Rodgers, is that the Bill should be subject to what he called "compromise"; in other words, its formal proceedings should be abandoned and agreement should be reached between the usual channels—of course, he would argue that for these purposes the usual channels should be extended—as to which parts of the Bill were generally acceptable and which parts were not.
There is a great deal to be said for that point of view, but the Government have it in their power to reject it and have rejected it. If this Business Motion is carried, the Government have it in their power to complete the stages of the Bill today: to have the Lords amendments considered by another place on Thursday and to have the Bill passed and receive Royal Assent by the end of this week. Many of your Lordships may feel that either of those two options would be better than the option that has been taken. Although I sympathise with that view, those options are simply not available to noble Lords. We must be realistic and accept that the Government have it within their power to complete the business but have not done so. They have it within their power to truncate the business and intend to do so.
Having said that, one is left with a third, inferior option. All I say about it is that, as your Lordships have been forcefully reminded, your Lordships have taken a view in opposition to the major plank of Part I of the Bill. My right honourable and honourable friends in another place will vigorously support your Lordships' decision on mandatory minimum sentences when the Bill goes back to another place on Thursday, if the business proceeds as is now proposed. Noble Lords have our assurance that every step will he resisted which seeks to overturn that important amendment, even if the Home Secretary were to say that it was a wrecking amendment. I do not believe that it is a
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wrecking amendment, and I said so at the time. We will certainly support the amendments that your Lordships have passed.
I am a realist and I believe in accepting and working with reality. I also believe in looking forward to the future rather than complaining about the past. In looking forward to the future, I refer to the words of the noble and learned Lord the Lord Advocate. In speaking about the Crime and Punishment (Scotland) Bill, he said:
"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 prisoner population that might result".—[Official Report, 10/3/97; col. 95.]
I believe that those are wise words that apply equally to the Crime (Sentences) Bill as to the Crime and Punishment (Scotland) Bill.
In those circumstances, I believe that it is force majeure. We have no alternative but to accept the Business Motion that the Government have put forward. That has been agreed, and we shall support it. It is necessary for the proper conduct of the great range of business that must be completed by agreement before the end of this Parliament. It is unfortunate that it includes business over which there is no agreement. But that is a fact of life and of politics and we had better face it. Although we on these Benches will support the Business Motion I shall have no appetite for shadow boxing later today. I shall not be moving the amendments tabled in my name on the Crime (Sentences) Bill.
Lord Carr of Hadley: My Lords, I have no objection to the Motion moved by my noble friend the Lord Privy Seal. I shall not vote against it. It seems inevitable in the circumstances in which we find ourselves. But this is perhaps the only opportunity to express my grave concern about the use that is being made of the powers granted by this Motion in respect of the Crime (Sentences) Bill.
When he introduced his Business Statement yesterday my noble friend the Chief Whip ended the exchange of views with the hope that your Lordships would deal with the issue as sympathetically as possible so that the reputation of the House might be maintained. The reputation of our House depends above all on giving a digested consideration to a very major Bill.
It is well known that I am not in favour of some of the provisions in the Bill, but that is not the point that I seek to press at the moment. This is a major Bill with substantial effects on the judicial system, and the basis of justice in this country should not be changed in this or in any other substantial way until Parliament, including this House, has properly digested it. It has not been properly digested.
It is not just a question of mandatory sentences and their extension, which at Committee stage was a major issue and which remains a major issue. There are also issues relating to the Parole Board. Following Committee stage, the Government have tabled amendments which I believe will make improvements in that regard. But that very important aspect of the Bill requires further consideration and digestion. For

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example, there is the question of the way in which prisoners on release do or do not comply with their conditions of parole and how they should be brought back and dealt with if they break them or threaten to do so. That needs much greater consideration. I do not believe that it is consistent with the reputation of this House to allow this Bill to go forward in its present form. It is much more than the much-contested amendments about mandatory sentences.
I believe that, of the options open to us, the only proper course is for this Bill to be dropped. While I shall support the Motion—this is necessary in order to complete our business before the general election—I urge the Government to think hard about the way that they propose to deal with this Bill. The matter cannot be dealt with on the basis of some unspoken compromise between the Front Benches and another place.
Lord Bingham of Cornhill: My Lords, I hope that your Lordships will permit me to express, quite briefly, the dismay that I feel at the course which it is proposed to adopt in relation to the Crime (Sentences) Bill. This Bill is not put forward as a short-term measure—a quick, overnight panacea, an instant fix. It is put forward as a measure intended to have profound and long-term effects on the lives of our fellow citizens and on the penal arrangements made for those in custody. It is a measure which, if implemented, will affect the lives of our fellow citizens for very many years to come. Surely this is a measure which, in the debt that we owe to them, if not to ourselves, requires us to give its provisions mature deliberation.
The need for such deliberation is greater because the Bill's provisions do not represent the considered conclusions of a Royal Commission or a wide-ranging committee of inquiry. They are not founded upon any independent research. They are not supported by most of those with responsibility for operating the system, and they have been widely condemned by most academic commentators. It is difficult to imagine measures more obviously calling for searching and thoughtful scrutiny in this House. I have a deep fear that if we legislate in haste, we shall repent at leisure.
Lord Campbell of Alloway: My Lords, would not the reputation of your Lordships' House be vastly enhanced if the Crime (Sentences) Bill were excluded from this Motion, which is otherwise wholly acceptable? One of the purposes of this Motion is to restore mandatory sentencing and to defeat your Lordships' amendments.
It is well understood that the Bill will now pass, as the noble Lord, Lord McIntosh of Haringey, has said, with Labour support. I am told—I may have got it wrong, but my information differs from that of the noble Lord. Lord Rodgers—that my right honourable friend the Home Secretary will divide another place on these amendments, and that unless another place rejects the amendments, he will withdraw the Bill. That in effect all but ensures that it is virtually certain that another place will reject your Lordships' amendments. I, too, am a realist.
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As to the merits of the Motion as affecting the Crime (Sentences) Bill, if Standing Orders have to be suspended to save the Bill, well and good, so be it, but—there is a but—surely the Government should accept the Bill in the form in which it passes your Lordships' House and should not divide against Lords amendments on mandatory sentencing in another place.
The Bill, if it is withdrawn, will be returned to us before the Dissolution in a day or two—probably in the dinner hour, I expect—rejecting the Lords amendments. We have the right to insist, of course, but to do so would in fact kill the Bill owing to shortage of time. It is a decision which could be described as neither reasonable nor wise in those circumstances. But to reject the Motion, if it includes the Crime (Sentences) Bill, and to decline to barter entitlement for this potage could be—your Lordships may well think—an honourable solution, even if it were to kill the Bill, to return another day, under either this or another government.
For those reasons, speaking personally, I shall be unable to support the Motion unless the Crime (Sentences) Bill were to be excluded. The merit of the Motion, as it stands, could only be to avoid disparity on either side of the Border on mandatory sentencing with the Crime and Punishment (Scotland) Bill, which I gather is due to receive similar treatment under a Motion tomorrow.
3.45 p.m.
Lord Harris of Greenwich: My Lords, I very much agree with what the noble Lord, Lord Campbell of Alloway, has just said. I shall speak as "a usual channel" that did not go along with the Statement made last night by the noble Lord, Lord Strathclyde. Indeed, at the meeting we had last evening I made it clear that my noble friends would not be able to agree to the Motion which we are now debating. The reason we took that view was the one expressed by the noble Lord, Lord Carlisle of Bucklow, and the noble and learned Lord the Lord Chief Justice. There is no urgency about this Bill at all. That is the one issue which I believe is common ground with anyone who knows anything about that measure.
I waited with some interest to find out how the noble Viscount the Leader of the House was going to justify the Motion, but in fact, with great respect, he made no effort to do so. He just moved the Motion formally. I very much hope that he will now address the issues which have been raised, as I am sure that he will, by a number of his noble friends and others in this House. As my noble friend Lord Rodgers of Quarry Bank said a few moments ago, there is no absolutely no requirement to have Prorogation of this Parliament on Friday of this week—none whatsoever. It meets the convenience of Ministers. It has no purpose other than that. That is the reality, as all of us know perfectly well. If Prorogation took place next week there would have been a serious prospect of some of the issues being debated properly, both on this Bill and its Scottish equivalent.
We of course recognise, as the noble Lord, Lord Carr, did a few moments ago, that Motions of this kind are perfectly understandable at the end of a Parliament, but

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I must say, having been in this House for a substantial number of years, that I can remember no such Motion being moved in respect of a Bill which is as controversial as this is. There is in my view no precedent whatever. The only precedent I can recall—it is not much of a precedent but, nevertheless, let me mention it—was the Criminal Justice Bill 1987. That had not been carried through this House at the time the general election was announced.
The noble Earl, Lord Caithness, who was a Minister of State at the Home Office, asked my noble friend Lord Hutchinson of Lullington and myself whether we could reach some form of agreement on that Bill: whether there was some parts of the Bill which would be acceptable to us. The view he expressed on that occasion was that matters which were, in our view, controversial would await the new Parliament. We agreed with the clauses in the Bill which dealt with the creation of the Serious Fraud Office, but the rest of the Bill was reintroduced after the general election.
On that occasion, as on this, everyone recognised that there was no urgency with the Bill. The government of the day—the Home Secretary was Mr. Douglas Hurd—handled the matter in a most sensitive fashion. That, unhappily, has not been true on this occasion.
We are either a serious revising Chamber or we are nothing. There is no purpose in this House sitting and discussing matters of great public importance if we do not do our duty properly in scrutinising legislation. Yet the Motion in relation to the application of this Bill which we have been debating this afternoon means that we are in fact surrendering totally to the Executive our rights as regards that Bill. We are surrendering our rights as a revising Chamber. I would say only this to noble Lords opposite who may find the Government's arguments more attractive than I do: remember one thing, precedents are dangerous things. A government may surprisingly quickly become an opposition and they may find precedents of this sort peculiarly uncomfortable in the future.
Lord Ackner: My Lords, I beg to move an amendment to the Motion, at the end to insert,
"except in its application to the Crime (Sentences) Bill".
I suggest the amendment for these reasons: the key proposals in the Bill are threefold—the imposition of automatic life sentences on anyone convicted for a second time of a serious or violent sexual offence; the imposition of mandatory minimum sentences on repeat burglars and drug dealers; and the abolition of parole for prisoners serving determinate sentences, together with the shortening of remission.
In his speech in your Lordships' House on the Second Reading of the Bill, my noble and learned friend the Lord Chief Justice said:
"it is necessary to test each of the proposals by asking four questions. Will it be just? Will it serve to reduce levels of crime or increase the protection of society? Will it be cost effective? Will it work in practice?
The Lord Chief Justice then said:
"I feel bound to tell your Lordships that in my judgment these measures conspicuously fail to pass all four of those tests".—[Official Report, 27/1/97; col. 984.]
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In the same debate, the Master of the Rolls said:
"If this Bill is implemented, it is my fear that it will prove to be an extremely expensive way of making the criminal justice system worse".—[Official Report, 27/1/97; cols. 996–70.]
In the other place the Home Secretary said that he was introducing the Bill essentially to improve the protection of the public against serious, dangerous and persistent offenders, and to increase public confidence in the sentencing process. In the course of the Committee stage, numerous speakers have said that the Bill will have the reverse effect. It will deprive the public of protection and in many ways it will make the system a mockery.
Finally, in support of my amendment, I draw your Lordships' attention to the fact that considerable research, considerable consultation and considerable discussion resulted in the 1990 White Paper which was the basis of the legislation in 1991. The proposals in this Bill are diametrically opposed to what was suggested in that White Paper and, as the noble Lord, Lord Carr of Hadley, said in a recent debate:
"the Government are overturning—there is no other way to describe it—the proposals, principles and philosophies which were put forward as recently as 1990 and embodied in the … 1991 Act".
The noble Lord concluded:
"I do not believe that in respect of such a vital matter the Government can just go into reverse into this way without explaining more deeply and clearly to us in Parliament and to the public as a whole why six years ago they were wrong—not just a little wrong but fundamentally wrong—and are now fundamentally right".—[Official Report, 23/5/96; col. 1051.]
They have not provided that information to date, hence my tabling of this amendment to the Motion.
Lord Hughes: My Lords, before the noble and learned Lord resumes his seat—
Noble Lords: Order!
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, the original Motion was as set out on the Order Paper, since when an amendment has been moved thereto, at the end to insert,
"except in its application to the Crime (Sentences) Bill".
The Question before the House, therefore, is, That the amendment to the original Motion be agreed to:
Lord Hughes: My Lords, all that I wanted to ask the noble and learned Lord, Lord Ackner, was whether his amendment should not include also a reference to the equally controversial Scottish Bill because, as things stand, that Bill would go through along with the rest.
Lord Ackner: My Lords, I am afraid that under pressure of events, I had time only to think of England. However, if the noble Lord wants me to continue speaking while he writes out an amendment, I have plenty of material that I could read out.
Lord Hughes: My Lords, I am sorry, but the noble and learned Lord is asking me to do something which I am not capable of doing at the moment. I am quite

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sure, however, that if the noble and learned Lord gave a little thought to it, he could make a damn sight better job of it than I would.
Lord Monkswell: My Lords—
Noble Lords: The Leader of the House!
Lord Richard: My Lords, I wonder whether I may say just a few words before the Lord Privy Seal rises to his feet. We would not be in a position to support the amendment just moved by the noble and learned Lord, Lord Ackner—
Noble Lords: Shame!
Lord Richard: My Lords, I hear the cries from my right and from opposite—
Noble Lords: Behind you!
Lord Richard: and from behind—but I thought that it was sensible for me to set out the Labour Party's position on this issue.
The original Motion is clearly necessary at the end of a Parliament. The timing of the end of this Parliament is not a matter for the Opposition. It is right, however, that an opposition should co-operate with the Government in trying to succeed in providing a sensible ending to the Government's legislative programme. That we have done—not only in relation to the Bills which are before the House today but in relation also to the Bills which will come before the House tomorrow and on Thursday. I do not think that it is possible to unravel the package that has been agreed—
Noble Lords: Oh!
Lord Richard: My Lords, I know that various noble Lords do not like the agreement, but, with great respect, that is not the point. They may disagree and they may say that they are not party to the agreement, but I say only that the Labour Party has entered into an agreement and that we propose to stick by it.
Baroness Williams of Crosby: My Lords, before the Lord Privy Seal responds to the noble Lord, Lord Richard, perhaps I may make a few additional comments from these Benches. The agreement that has been reached in another place is in no way binding on this House, which did not reach that agreement itself. As I understand it, the purpose of this debate is precisely to determine whether it is the wish of this House to accede to that agreement which was made without discussion or deliberation with other Members of this House, including representatives of the Cross Benches and of some Opposition parties.
There can be almost no example more harsh of the power of the Executive than an agreement made between the two Front Benches without adequate consideration of the much wider considerations which cover this Bill. From all Benches in this Chamber in the
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past few minutes we have heard very powerful arguments as to why the Bill should not be allowed to go ahead without due further deliberation. The noble Lord, Lord McIntosh of Haringey, put forward what I regarded as a totally unacceptable argument. It went along the lines that if there is not the political will from the Front Benches, it is only realistic to say that there is no way in which their agreement can be overturned. I cannot accept that argument. It is a dangerous argument with the widest possible repercussions for a parliamentary democracy.
Perhaps I may make one further point on the substance of the matter. We know, because we have had evidence directly from the prison governors, that our prison system is in a state of advanced crisis. It may be the case that literally within the next few weeks or months the prison system will be unable to cope with the demands made upon it. We have heard from the Lord Chief Justice that those noble Lords who know most about the criminal justice system are extremely worried about the implications of the Bill. We know from my noble friend Lord Harris of Greenwich that there are the strongest reasons why the Bill should be deliberated at much greater length, in much greater detail and with much greater consideration as regards our own responsibility for those who work in the Prison Service, in the criminal justice system, in the police force and, for that matter, for offenders.
It has been said that this is a revising Chamber if it is anything. However, I also understood that it was a deliberative Chamber if it was anything: a Chamber charged with deliberating about the pressures that are brought to bear on Ministers and Members of another place. All of us know the pressures that are currently bearing upon Ministers and their shadows as a result of trying to show who can be tougher on crime; but it is the job of this House to resist sudden pressures, often driven by the popular media, to consider the long-term consequences of what is done and to consider the effects of the law.
I plead that we give serious consideration to the amendment proposed by the noble and learned Lord, Lord Ackner, because, as I understand it, it is an amendment in the true spirit of this House and its responsibility for the constitution of the United Kingdom.
Noble Lords: Leader!
4 p.m.
Lord Bridge of Harwich: My Lords, I shall be just two minutes or less. The cat is now out of the bag. I am the political innocent who had not seen it all along. The cat is that there has been a satanic pact between the two main political parties to see that this ill-considered legislation is forced through without proper examination by this House, because neither is prepared to forgo the hope of outbidding the other for the populist vote in the law and order debate leading up to the election. That is the truth of the matter and, to my mind, it is a deplorably cynical attitude to the administration of justice.
Viscount Cranborne: My Lords, it is a well-known truism in British parliamentary life for the Back Benches to look more than once when both Front Benches tell the same story. I am fully conscious of the honourable tradition behind that observation, which is one that I know many rebels deployed in their time in the other place. However, despite all the eloquence which we have heard against the Crime (Sentences) Bill during the course of the past 50 minutes, I have to say, notwithstanding my opening observation, that the noble Lords, Lord Richard and Lord McIntosh, were perfectly correct in their fundamental observations.
This Motion is a Motion for the sake of good order and good government.
Noble Lords: Oh!
Noble Lords: Order!
Viscount Cranborne: My Lords, I think it is fair to say that the Government Front Bench, with its usual courtesy, gave a hearing to all noble Lords who have spoken thus far. I am sure, therefore, that noble Lords will wish to do the same for me.
As the noble Lord, Lord McIntosh, observed, it is a Motion which tries to ensure that the dying days of a Parliament are conducted with a sense of good order and with decorum. I have not a great length of parliamentary experience, but I find it difficult to remember the end of a single Parliament when there was not a substantial amount of legislation still outstanding, much of it controversial, and when the usual channels in both Houses have not done their best to achieve a practical accommodation in the dying days of a Parliament to try to preserve good sense and dignity to the end.
Lord Taverne: My Lords—
Noble Lords: Order!
Viscount Cranborne: My Lords, if the noble Lord, Lord Taverne, will allow me to proceed for a little longer, I shall give way to him with the greatest of pleasure. However, I should like to complete this one point.
I believe it is fair to say that the Motion which I moved earlier, without, as some noble Lords observed, further explanation, is directed at that objective only. We deliberately put on the Report stage of the crime Bill this afternoon knowing that it would be important for noble Lords to consider whether they would like to make further progress on that legislation. If the Motion is passed by your Lordships and we proceed to the Report stage of the Bill, there will be more opportunities for noble Lords from all sides of the House to make speeches of very much the same character as we have heard this afternoon. I make no complaint about that. However, what I do say, with the greatest of respect to the many very distinguished noble Lords and noble and learned Lords who have spoken, is that this is not the Motion upon which to speak, unless it is the desire of noble Lords—and I say this with great diffidence—in some elegant way to begin to filibuster the discussion at every opportunity.
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I noticed that the noble Lords, Lord Harris, and Lord Barnett, the noble and learned Lord, Lord Ackner, and indeed the noble Baroness, Lady Williams, regard it as the right of this House to kill a Bill should it feel so inclined. Should we ever be so unfortunate as to lose an election, I will remember those observations with some interest under different circumstances. I should also tell the noble Baroness, Lady Williams, that my noble friend the Captain of the Gentlemen-at-Arms did indeed talk to the Convener and discuss the matter with him. I am assured by my noble friend that that is so. I give way to the noble Lord.
Lord Taverne: My Lords, I apologise for asking the following question. Can the noble Viscount explain to the House what is different in the circumstances of this Bill from the circumstances of the Criminal Justice Bill 1987? The noble Viscount said that there are often such situations at the end of a Parliament, but can he cite any single example where there was such strong opposition from his Benches, from many Members of the Cross Benches, from the whole of the judiciary and, indeed, from so many parts of the House?
Viscount Cranborne: My Lords, as has been made clear by the Benches of the party immediately opposite, there has been an agreement about how the conduct of business should be arranged during the remaining days of this week. It is open to your Lordships' House to reject that agreement, as it is always open to Members of this House to vote against any Motion. I would strongly oppose such a thought but I would certainly support the right of noble Lords—as, indeed, noble Lords would expect me to—to express their opinion by way of voting or any other means. It is on the Motion that we will vote if the noble and learned Lord wishes to press the amendment to a vote. I make no quarrel about that. We have a suggestion which we have put before your Lordships and it is for your Lordships to decide.
I repeat, if your Lordships wish to object to any particular item of business which is before the House during the course of the next two or three days, it is open to your Lordships to do so on the basis of the business before us. However, what I find difficult is what I believe the noble Lords, Lord Richard and Lord McIntosh, also find difficult; namely, to interrupt what has been a well-established precedent that we try to bring our business to a reasonable conclusion in an elegant and agreed way in the last days of a Parliament.
I am sure that the noble Lord, Lord Ewing, would not disagree with me, as a parliamentarian of many more years standing than I suspect I shall ever have, that the prerogative of the Prime Minister is clearly to call an election and to ask the Queen for prorogation and dissolution at his discretion. That decision is one which has been granted to Prime Ministers of all parties in power for some time now, as I am sure the noble Lord will agree. It is then, in the light of that decision, a matter of whether or not either House of Parliament wishes to allow the proposed arrangement of business to stand.
If this order of business is to have any chance of standing, and if not only the crime Bill but also all the rest of the Government's proposed legislation—and, indeed,

783
many Private Members' Bills—are to have any chance of becoming law in an agreed and orderly manner, we will have to suspend this Standing Order. We have an opportunity to discuss the crime Bill after that. I suggest to your Lordships that is the moment when objections of a passionately felt kind are appropriate, if your Lordships wish to make them.
I have to say by way of conclusion that, of course, even if we had persisted until 8th April—the last possible date for Parliament to sit if we were to have an election on 1st May—it is highly unlikely that we would have been able to complete consideration of this Bill anyway. If we were to have done so, we would have had to suspend Standing Orders in any case. I say with the greatest of respect to the House that I think perhaps we are mixing apples and oranges here. I am sure there will be much passionate debate later this afternoon should my Motion find favour with the House.
Lord Avebury: My Lords, I hope I may ask the noble Viscount a question. Is he saying that the Prime Minister of the day always has carte blanche to fill up the timetable with masses of legislation in the final Session of a Parliament which he knows cannot be completed in time and then to ramrod it through at the last moment without debate?
Viscount Cranborne: My Lords, it is for promoters of Bills to propose and for Parliament to decide.
The Lord Chancellor: My Lords, the original Motion was as set out on the Order Paper, since when an amendment has been moved thereto at the end to insert,
"except in its application to the Crime (Sentences) Bill".
The Question before this House, therefore, is, That the amendment to the original Motion be agreed to.
4.11 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 137; Not-Contents, 185.

Division No. 1

CONTENTS

Ackner, L. [Teller.]

Borrie, L.

Acton, L.

Boyd-Carpenter, L.

Addington, L.

Bramall, L.

Ailesbury, M.

Bridge of Harwich, L.

Allen of Abbeydale, L.

Bridges, L.

Allenby of Megiddo, V.

Brightman, L.

Ampthill, L.

Brooks of Tremotfa, L.

Annan, L.

Browne-Wilkinson, L.

Avebury, L.

Bruce of Donington, L.

Baldwin of Bewdley, E.

Calverley, L.

Barnett, L.

Campbell of Alloway, L.

Beaumont of Whitley, L.

Carlisle, E.

Bingham of Cornhill, L.

Carlisle of Bucklow, L.

Blease, L.

Carnarvon, E.

Bledisloe, V.

Carr of Hadley, L.

Blyth, L.

Charteris of Amisfield, L.

784

Chorley, L.

Monson, L.

Clancarty, E.

Mottistone, L.

Craigavon, V.

Murray of Epping Forest, L.

Crook, L.

Mustill, L.

Dahrendorf, L.

Napier of Magdâla, L.

Darcy (de Knayth), B.

Newall, L.

Devonport, V.

Nicol, B.

Dickinson, L.

Northbourne, L.

Donaldson of Lymington, L.

Norton, L.

Dowding, L.

Ogmore, L.

Elis-Thomas, L.

Oliver of Aylmerton, L.

Emerton, B.

Onslow, E.

Exmouth, V.

Palmer, L.

Ezra, L.

Park of Monmouth, B.

Falkland, V. [Teller.]

Pearson of Rannoch, L.

Flowers, L.

Phillips of Ellesmere, L.

Gillmore of Thamesfield, L.

Pym, L.

Gladwyn, L.

Redesdale, L.

Grenfell, L.

Renfrew of Kaimsthorn, L.

Grey, E.

Robson of Kiddington, B.

Hacking, L.

Rochester, L.

Hampton, L.

Rodgers of Quarry Bank, L.

Hamwee, B.

Russell, E.

Harding of Petherton, L.

Sainsbury, L.

Harris of Greenwich, L.

St. John of Bletso, L.

Harris of High Cross, L.

Saltoun of Abernethy, Ly.

Hayhoe, L.

Sefton of Garston, L.

Serota, B.

Hayter, L.

Shannon, E.

Hilton of Eggardon, B.

Shaughnessy, L.

Hooson, L.

Simon, V.

Hope of Craighead, L.

Simon of Glaisdale, L.

Howie of Troon, L.

Slynn of Hadley, L.

Hutchinson of Lullington, L.

Stallard, L.

Hylton, L.

Stoddart of Swindon, L.

Inchyra, L.

Strafford, E.

Jenkins of Putney, L.

Swinfen, L.

Kennet, L.

Taverne, L.

Kilbracken, L.

Taylor of Gosforth, L.

Kinloss, Ly.

Tenby V.

Kintore, E.

Thomas of Gresford, L.

Kirkhill, L.

Thomas of Walliswood, B.

Kirkwood, L.

Thurlow, L.

Lane, L.

Tope, L.

Leathers, V.

Tordoff, L.

Lester of Herne Hill, L.

Wallace of Coslany, L.

Lockwood, B.

Walpole, L.

Longford, E.

Warnock, B.

Lowry, L.

Weatherill, L.

McNair, L.

Wigoder, L.

Mar and Kellie, E.

Wilberforce, L.

Masham of Ilton, B.

Williams of Crosby, B.

Meston, L.

Wright of Richmond, L.

NOT-CONTENTS

Aberdare, L.

Bruntisfield, L.

Addison, V.

Butterworth, L.

Ailsa, M.

Byford, B.

Alexander of Tunis, E.

Cadman, L.

Anelay of St. Johns, B.

Caithness, E.

Archer of Weston-Super-Mare, L.

Campbell of Croy, L.

Ashbourne, L.

Carnegy of Lour, B.

Astor, V.

Carter, L.

Astor of Hever, L.

Chalker of Wallasey, B.

Attlee, E.

Chesham, L. [Teller.]

Balfour, E.

Clanwilliam, E.

Barber of Tewkesbury, L.

Clark of Kempston, L.

Belhaven and Stenton, L.

Cledwyn of Penrhos, L.

Belstead, L.

Clinton, L.

Berners, B.

Cochrane of Cults, L.

Blaker, L.

Courtown, E.

Blatch, B.

Craig of Radley, L.

Boardman, L.

Craigmyle, L.

Brabazon of Tara, L.

Cranborne, V. [Lord Privy Seal.]

Brougham and Vaux, L.

Cranbrook, E.

785

Cuckney, L.

Macleod of Borve, B.

Cullen of Ashbourne, L.

Malmesbury, E.

Cumberlege, B.

Marlesford, L.

Davidson, V.

Marsh, L.

Dean of Beswick, L.

Mason of Bamsley, L.

Dean of Harptree, L.

Merrivale, L.

Denbigh, E.

Middleton, L.

Denham, L.

Miller of Hendon, B.

Denton of Wakefield, B.

Montgomery of Alamein, V.

Dixon-Smith, L.

Morris of Castle Morris, L.

Donegall, M.

Morris of Kenwood, L.

Donoughue, L.

Mountevans, L.

Dormand of Easington, L.

Mowbray and Stourton, L.

Downshire, M.

Murton of Lindisfame, L.

Dubs, L.

Noel-Buxton, L.

Dundee, E.

Norrie, L.

Eatwell, L.

Northesk, E.

Eden of Winton, L.

O'Cathain, B.

Elles, B.

Oppenheim-Barnes, B.

Elliott of Morpeth, L.

Orr-Ewing, L.

Elton, L.

Oxfuird, V.

Farrington of Ribbleton, B.

Paul, L.

Feldman, L.

Pilkington of Oxenford, L.

Ferrers, E.

Platt of Writtle, B.

Flather, B.

Porter of Luddenham, L.

Fraser of Carmyllie, L.

Prys-Davies, L.

Gainford, L.

Quinton, L.

Gainsborough, E.

Ramsay of Cartvale, B.

Geddes, L.

Rankeillour, L.

Gibson-Watt, L.

Rawlings, B.

Gilmour of Craigmillar, L.

Reay, L.

Gisborough, L.

Renton, L.

Gladwin of Clee, L.

Renwick, L.

Goschen, V.

Richard, L.

Gould of Potternewton, B.

Ridley, V.

Graham of Edmonton, L.

Romney, E.

Gray, L.

Rotherwick, L.

Greenway, L.

Rowallan, L.

Haig, E.

St. Davids, V.

Halsbury, E.

Saint Oswald, L.

Haslam, L.

Seccombe, B.

Hayman, B.

Selsdon, L.

Hemphill, L.

Sewel, L.

Henley, L.

Sharples, B.

Holderness, L.

Shaw of Northstead, L.

Hollis of Heigham, B.

Skelmersdale, L.

HolmPatrick, L.

Somerset, D.

Howe, E.

Soulsby of Swaffham Prior, L.

Ilchester, E.

Stewartby, L.

Inglewood, L.

Strabolgi, L.

Jay of Paddington, B.

Strathcarron, L.

Johnston of Rockport, L.

Strathclyde, L. [Teller.]

Keyes, L.

Swinton, E.

Kimball, L.

Symons of Vernham Dean, B.

Kitchener, E.

Terrington, L.

Knutsford, V.

Teviot, L.

Laing of Dunphail, L.

Thomas of Gwydir, L.

Lane of Horsell, L.

Trefgame, L.

Lauderdale, E.

Trumpington, B.

Lindsay, E.

Turner of Camden, B.

Lindsey and Abingdon, E.

Ullswater, V.

Long, V.

Vivian, L.

Lucas, L.

Westbury, L.

Lucas of Chilworth, L.

Wharton, B.

Luke, L.

Whitelaw, V.

Lyell, L.

Whitty, L.

McColl of Dulwich, L.

Wilcox, B.

McConnell, L.

Williams of Elvel, L.

McIntosh of Haringey, L.

Willoughby de Broke, L.

Mackay of Ardbrecknish, L.

Winston, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Wolfson, L.

Wynford, L.

Mackay of Drumadoon, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.23 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 206 Not-Contents, 76.

Division No. 2

CONTENTS

Aberdare, L.

Dormand of Easington, L.

Addison, V.

Downshire, M.

Ailesbury, M.

Dubs, L.

Ailsa, M.

Dundee, E.

Alexander of Tunis, E.

Eatwell, L.

Ampthill, L.

Eden of Winton, L.

Anelay of St. Johns, B.

Ellenborough, L.

Archer of Weston-Super-Mare, L.

Elles, B.

Astor, V.

Elliott of Morpeth, L.

Astor of Hever, L.

Elton, L.

Attlee, E.

Farrington of Ribbleton, B.

Balfour, E.

Ferrers, E.

Barber of Tewkesbury, L.

Flather, B.

Belhaven and Stenton, L.

Fraser of Carmyllie, L.

Belstead, L.

Gainford, L.

Berkeley, L.

Gainsborough, E.

Berners, B.

Geddes, L.

Blaker, L.

Gibson-Watt, L.

Blatch, B.

Gilmour of Craigmillar, L.

Boardman, L.

Gisborough, L.

Brabazon of Tara, L.

Goschen, V.

Bradford, E.

Gould of Pottemewton, B.

Bramall, L.

Graham of Edmonton, L.

Brightman, L.

Gray, L.

Brougham and Vaux, L.

Gray of Contin, L.

Bruntisfield, L.

Greenway, L.

Butterworth, L.

Haig, E.

Byford, B.

Halsbury, E.

Cadman, L.

Harding of Petherton, L.

Caithness, E.

Harmar-Nicholls, L.

Campbell of Croy, L.

Haslam, L.

Carnegy of Lour, B.

Hayhoe, L.

Carr of Hadley, L.

Hayman, B.

Carter, L.

Hemphill, L.

Chalker of Wallasey, B.

Henley, L.

Charteris of Amisfield, L.

Hesketh, L.

Chesham, L. [Teller.]

Holderness, L.

Chorley, L.

Hollis of Heigham, B.

Clanwilliam, E.

HolmPatrick, L.

Clark of Kempston, L.

Howe, E.

Cledwyn of Penrhos, L.

Ilchester, E.

Clinton, L.

Inchyra, L.

Cochrane of Cults, L.

Inglewood, L.

Courtown, E.

Johnston of Rockport, L.

Craig of Radley, L.

Keyes, L.

Craigmyle, L.

Kimball, L.

Cranborne, V. [Lord Privy Seal.]

Kitchener, E.

Cranbrook, E.

Knutsford, V.

Crook, L.

Lane of Horsell, L.

Cross, V.

Leathers, V.

Cuckney, L.

Leigh, L.

Cullen of Ashbourne, L.

Lindsay, E.

Cumberlege, B.

Lindsey and Abingdon, E.

Davidson, V.

Long, V.

Dean of Harptree, L.

Lucas, L.

Denbigh, E.

Lucas of Chilworth, L.

Denham, L.

Luke, L.

Denton of Wakefield, B.

Lyell, L.

Dixon-Smith, L.

McColl of Dulwich, L.

Donegall, M.

McConnell, L.

787

McIntosh of Haringey, L.

Rees, L.

Mackay of Ardbrecknish, L.

Renfrew of Kaimsthorn, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Renton, L.

Renwick, L.

Mackay of Drumadoon, L.

Richard, L.

Macleod of Borve, B.

Romney, E.

Malmesbury, E.

Rotherwick, L.

Marlesford, L.

Rowallan, L.

Marsh, L.

St. Davids, V.

Masham of Ilton, B.

Saint Oswald, L.

Mason of Barnsley, L.

Seccombe, B.

Merrivale, L.

Selsdon, L.

Middleton, L.

Sewel, L.

Miller of Hendon, B.

Sharples, B.

Milner of Leeds, L.

Shaw of Northstead, L.

Milverton, L.

Skelmersdale, L.

Monk Bretton, L.

Somerset, D.

Montgomery of Alamein, V.

Soulsby of Swaffham Prior, L.

Morris of Castle Morris, L.

Stewartby, L.

Mottistone, L.

Strabolgi, L.

Mountevans, L.

Strathcarron, L.

Mowbray and Stourton, L.

Strathclyde, L. [Teller.]

Murton of Lindisfarne, L.

Strathmore and Kinghorne, E.

Swinfen, L.

Napier of Magdâla, L.

Swinton, E.

Noel-Buxton, L.

Symons of Vernham Dean, B.

Norrie, L.

Terrington, L.

Northesk, E.

Teviot, L.

O'Cathain, B.

Thomas of Gwydir, L.

Onslow, E.

Trefgame, L.

Oppenheim-Barnes, B.

Trumpington, B.

Orr-Ewing, L.

Turner of Camden, B.

Oxfuird, V.

Ullswater, V.

Pearson of Rannoch, L.

Vivian, L.

Pender, L.

Westbury, L.

Pilkington of Oxenford, L.

Wharton, B.

Platt of Writtle, B.

Whitelaw, V.

Prior, L.

Wilcox, B.

Pym, L.

Williams of Elvel, L.

Quinton, L.

Willoughby de Broke, L.

Ramsay of Cartvale, B.

Wise, L.

Rankeillour, L.

Wolfson, L.

Rawlings, B.

Wynford, L.

Reay, L.

Young, B.

NOT-CONTENTS

Ackner, L.

Hooson, L.

Addington, L.

Howie of Troon, L.

Allenby of Megiddo, V.

Hughes, L.

Avebury, L.

Hutchinson of Lullington, L.

Barnett, L.

Hylton, L.

Beaumont of Whitley, L.

Jenkins of Putney, L.

Blyth, L.

Kennet, L.

Bridge of Harwich, L.

Kilbracken, L.

Bridges, L.

Kirkwood, L.

Bruce of Donington, L.

Lane, L.

Calverley, L.

Lester of Herne Hill, L.

Carlisle, E.

Longford, E.

Chalfont, L.

McNair, L.

Clancarty, E.

Mar and Kellie, E.

Cobbold, L.

Meston, L.

Dahrendorf, L.

Monson, L.

Devonport, V.

Murray of Epping Forest, L.

Elis-Thomas, L.

Ogmore, L.

Exmouth, V.

Palmer, L.

Ezra, L.

Phillips of Ellesmere, L.

Falkland, V. [Teller.]

Prys-Davies, L.

Gillmore of Thamesfield, L.

Redesdale, L.

Gladwyn, L.

Robson of Kiddington, B.

Grey, E.

Rochester, L.

Hampton, L.

Rodgers of Quarry Bank, L.

Hamwee, B.

Russell, E.

Harris of Greenwich, L. [Teller.]

Sainsbury, L.

Hayter, L.

St. John of Bletso, L.

Hindlip, L.

Saltoun of Abernethy, Ly.

788

Shaughnessy, L.

Thomas of Walliswood, B.

Simon, V.

Tope, L.

Simon of Glaisdale, L.

Tordoff, L.

Stallard, L.

Varley, L.

Stoddart of Swindon, L.

Walpole, L.

Taverne, L.

Warnock, B.

Taylor of Gosforth, L.

Wigoder, L.

Tenby, V.

Williams of Crosby, B.

Thomas of Gresford, L.

Wright of Richmond, L.

Resolved in the affirmative, and Motion agreed to accordingly.

Consolidated Fund (No. 2) Bill
4.33 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord Mackay of Ardbrecknish.)
On Question, Bill read a second time; Committee negatived.
Then, Standing Order 44 having been suspended (pursuant to Resolution of 14th March), Bill read a third time, and passed.

Crime (Sentences) Bill
4.34 p.m.
Report received.
Clause 2 [Mandatory life sentence for second serious offence]:
Lord Carlisle of Bucklow Lord Carlisle of Bucklow moved Amendment No. 1:
Page 1, line 25, at end insert ("other than any offence in respect of which the offender is a rehabilitated person for the purposes of the Rehabilitation of Offenders Act 1974.").
The noble Lord said: My Lords, the amendment relates to Clause 2 of the Bill which provides that on the second conviction of various offences a person should be sentenced to an automatic sentence of life imprisonment. As I have always accepted, the objective of the clause is somewhat different from the mandatory provisions of Clauses 3 and 4. It is argued that the purpose of the clause, to make mandatory life sentences, is not so much to deal with the length of time that the person spends inside prison—it is proposed that the Government should still have the power to make a tariff order as to the length of time a person should stay—but to cover the release of that person back into society. To that extent I accept that this clause is different from the two clauses on mandatory sentences on burglary and drugs as regards which this House has already debated amendments to provide that no mandatory sentence needs to be passed if it is against the interests of justice.
Having accepted that, I still believe that there are major objections to the clause. First, it has the effect of increasing enormously the number of cases where a person is to be given a mandatory life sentence. Secondly, it is ironic in a Bill which claims to deal with

789
honesty in sentencing that the intention of the Government is that the court will have to pass a life sentence and say, "But that doesn't mean that you will serve life". Instead the court will say, "You will go to prison for life and serve a sentence of two years". That sounds to me a recipe for bringing the courts into disrepute.
Thirdly, since the tariff system is without regard to the provisions on early release, it means that none of those people—many of them, according to the Minister, dangerous people convicted of a second offence of a serious or sexual nature—will have any incentive for good behaviour in prison. The Minister may answer that the parole review will decide whether the individual comes out. But that will be assessed on risk. Although one of the assessments may be good behaviour, the provision to encourage people to behave well in prison will have no effect on those people because they will serve the tariff in full, irrespective of whether or not they behave well.
I see the Minister shakes her head. I shall of course give way. However, I asked her that specific question on the Question whether Clause 1 shall stand part. She agreed that the provisions on early release would not relate to the tariff sentence recommended to be served.
Baroness Blatch: My Lords, I shook my head simply because the noble Lord will hear—I invite him to discuss the amendments later—that behaviour will be taken into account by the Parole Board when considering release arrangements. The primary function is to consider the safety of the public.
Lord Carlisle of Bucklow: My Lords, that is exactly what I said, with respect. While I concede that behaviour may be one of the matters taken into account in deciding whether a person should be released, certainly under the provisions for early release which the Government have now tabled it will not be the only condition; and there will not be the deliberate encouragement of good behaviour for those who are sentenced under Clause 2 that exists under the other provisions.
Finally, as has been said, for example, by bodies such as Women Against Rape, a mandatory life sentence will inevitably lead to a considerable reduction in pleas of guilty and a considerable increase, therefore, in the number of cases tried in which the victims will be required to give evidence. In addition, although I know that my noble friend the Minister disputed this at Committee stage, I have absolutely no doubt that it will lead to an enhanced degree of plea bargaining in a way which we have not had in this country. I believe that there are strong arguments against the mandatory provisions for a life sentence for a second offence as set out in Clause 2.
The purpose of my amendment is much smaller in range. It accepts the principle that there should be mandatory life sentences for those with a second conviction of a serious or sexual nature but that the earlier conviction should not count if it is a conviction that is spent under the Rehabilitation of Offenders Act. The purpose of that Act, passed in 1974 at a time when
790
the climate was perhaps different, with the support of the then Conservative Party and the recently retired Home Office Ministers, was that those who commit a crime, particularly at an early stage in their lives, should have the opportunity to live down that crime and to be rehabilitated. If they keep out of trouble in the future a stage would be reached when that conviction would be treated as spent and as if it no longer existed.
What are the periods involved? For anyone sentenced on the first offence to a term of imprisonment of longer than 30 months, the conviction never becomes spent. My noble friend the Minister says that she is concerned about the man or the woman committing serious offences. Under my amendment, if that first conviction produced a sentence of over 30 months it is never spent and the provisions of Clause 2 of the Bill apply. On the other hand, if the sentence was of between six months and two and a half years, that conviction becomes spent once the person has kept out of any form of trouble for 10 years. If a person who has committed one of the offences to which Clause 1 applies has been given a sentence of imprisonment of less than two and a half years but more than six months and commits another offence of the nature set out in Clause 2 within 10 years, Clause 2 will apply as it stands. If, on the other hand, he or she has "gone straight" for over 10 years, that conviction will not be of effect for the purpose of this clause.
Perhaps I may take an example given by the Lord Chief Justice on an earlier occasion. If a youth of, let us say, 16 or 17 is convicted of having sexual intercourse with a girl of 12, for which he receives a custodial sentence of some nature, at the age of 40 becomes involved in a fight in which as a result of one blow struck by him the person he is fighting falls, hits his head on a pillar and is killed, and is charged with manslaughter, the earlier conviction would not be taken into account.
If the period of imprisonment is of up to six months, the conviction becomes spent after seven years. If the sentence is a fine, it becomes spent after five years. If the sentence is of conditional discharge or probation, it becomes spent at the end of that period of probation or conditional discharge. The whole purpose of the Rehabilitation of Offenders Act is to grade the periods during which the offence will be held against the person on the basis of the severity of the sentence, which itself will be based on the nature and severity of the offence. If we are to have a system whereby the commission of a second offence of a wide variety of natures—here one is talking not only of rape but also of manslaughter and wounding with intent, among other offences (Section 18 of the Offences Against the Person Act)—surely it is right that we should have a provision in the Bill similar to that in the Rehabilitation of Offenders Act so that a conviction which is spent for all other purposes should be spent also for the purposes of the Bill.
Noble Lords may say that this is irrelevant and of little importance because, as the Government always tell us, this clause is aimed at the person who commits repeated dangerous offences. Therefore anyone who comes before the court for a second time save on a charge of rape, having originally been charged with one

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of the other offences on the list, is almost bound to have received a sentence of over two and a half years' imprisonment and therefore would not be affected by my amendment. But that is not so. The figures given by the Home Office in the White Paper published last year show that in 1994—I am open to correction as to the year—35 per cent. of those convicted of one of the offences mentioned in Clause 2 received no custodial sentence at all, whereas for those who went to prison the average term of imprisonment was 4.1 years. That means that in 35 per cent. of cases coming before the courts where people are convicted for a first time of an offence among those listed the court which tries the case does not consider any form of imprisonment to be appropriate.
If that is so, can it really be right when after 10, 20 or 30 years a person commits one of the other offences referred to in the list, having many years ago committed an offence for which it was not thought appropriate that he should go to prison, he should receive an automatic life sentence? I cannot believe that the Government intend that to be so and I cannot believe that they have thought it through.
With great respect to my noble friend the Minister, from what she or others outside have said—and I mean this in no personal way against my noble friend—the implication has been that those who oppose the Bill are in some way soft on crime. It is not a question of being soft on crime. For a person convicted of any of the offences listed in Clause 2, the maximum sentence is life imprisonment. If the court feels that life imprisonment is the appropriate sentence, it may give it; and it may give it whether the person appears for a first occasion or for a second occasion with a spent conviction. This amendment simply seeks no mandatory requirement to impose a second conviction where the first conviction by the very nature of the sentence imposed was shown not to be of the greatest gravity.
This comes back to the fact that the offences under Clause 2 are extremely wide. I take the example of manslaughter. If in the course of a fight someone strikes a blow which tragically kills another and he then pleads guilty to manslaughter, is it to be said that he has to go to prison for life because at some stage in the past he had one previous conviction among that list? There are the examples that Women Against Rape has given. Suppose a woman who has suffered years of aggravated violence, eventually in desperation strikes out and wounds the person who has been violent towards her and is convicted of wounding with intent. If on a previous occasion several years ago in a similar situation she committed an act which led to such a conviction and the court felt that in all the circumstances due to the provocation and the life that she has lived it would be inappropriate to send her to prison, is it seriously to be said that she must go to prison for life on the second occasion?
I do not want to repeat the speeches made at Committee stage of the Bill. I merely make the point that one looks at the offences and says, "But this person is charged with rape"—or attempted rape or manslaughter and those offences sound and normally are
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extremely grave. Within the degrees particularly of the manslaughter charge and the Section 18 charge there is such a wide degree of seriousness that there should be some recognition of that. I take what I believe to be the least recognition of all by saying that, when looking at the previous offence, if it is found to be one which has already been spent and the person has been rehabilitated for all other purposes, it should not count as a conviction for the purposes of Section 1.
I apologise to the House if my speech has been somewhat disjointed. I started it without knowing where my notes were and picked them up about half way through. I am not quite sure whether I have covered fully my intentions. But I believe very strongly that if this clause is to be carried with the mandatory sentence, the very least that we can do is ensure that spent convictions do not count. I beg to move.
Lord Ackner: My Lords, I should like to support the amendment. It seems to me that there is an element of retrospection operating. After the person has been of good behaviour for a sufficiently long time, he having had a sentence of less than 30 months, it seems to me that he has achieved a status—the status of a rehabilitated offender. The Bill removes that status, because if he commits any of the so-called serious offences, even though the particular offence that he has committed is of a very minor kind on the facts, he has lost his rehabilitated status. On the face of it, that would seem to be quite contrary to the appropriate principle that the criminal law should not be retrospective or retroactive.
Lord Thomas of Gresford: My Lords, I wish to support the amendment. First of all, let us take the statistic to which the noble Lord, Lord Carlisle, referred; namely, that, in 1994, 35 per cent. of people convicted of the categories of crime listed as serious offences in subsection (5) of this clause did not receive a custodial sentence. What are we to take from that? Are we to take it that the judges failed and that the judges were soft on crime? If that is to be the inference to be drawn, what about the role of the Attorney-General, who has a right to appeal a sentence that he considers not to be sufficient? On how many occasions has the Attorney-General appealed the 35 per cent. of convictions? Are we to assume that in 1994 the Attorney-General failed in his duty and that he is soft on crime?
What that one statistic illustrates better than anything else is the diverse nature of the categories to which the noble Lord, Lord Carlisle, referred. The danger is that the House will be blinded by the categorisation that appears in subsection (5). As the noble Lord, Lord Carlisle, said, under manslaughter the differences between one conviction for manslaughter and another are huge. A single punch outside a public house to a person who has an eggshell skull can result in a fatal injury. All those who have practised in the courts have experience of such cases.
The noble Lord also referred to the gravest provocation that can arise through domestic violence, which would reduce a murder charge to manslaughter

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through the defence of provocation, and very frequently results in a battered wife receiving a non-custodial sentence, even though she has killed her husband in circumstances of provocation.
Another category that frequently arises is that of a person who is a fringe party to a joint enterprise. With other types of offence which are covered—for example, wounding or causing grievous bodily harm with intent—there may be a group of people involved. One person strikes the blow but the others who happen to be with him are caught up in a joint enterprise of one kind or another and consequently their criminality is that much less. On very frequent occasions, they do not receive sentences of imprisonment above 30 months. Every single offence listed can be graver or less grave depending on the particular circumstances. That is what judges have traditionally been for—to sort out what is a serious offence and what is not a serious offence. But subsection (5) defines serious offences and categorises them in that way.
The purpose of the amendment is to ensure that rehabilitated offenders, those whose sentences originally were not more than 30 months and who have not received serious or long sentences of imprisonment, should not be caught by the mandatory sentences and life sentences that are now proposed. It is sensible that one should have regard to the sentence imposed on the first offence before one imposes a mandatory life sentence for something later. I support the amendment.
Baroness Blatch: My Lords, this amendment raises the important issue of qualifying convictions for the automatic life sentence provided by Clause 2 of the Bill. As it stands, the Bill provides that convictions for the serious offences covered by Clause 2 count as qualifying convictions irrespective of the time that has elapsed between them and irrespective of whether the qualifying convictions were received prior to commencement.
The effect of the amendments would be that convictions would not "count" as qualifying convictions if they were "spent" under the terms of the Rehabilitation of Offenders Act 1974. No new points have been made by my learned friend in the course of discussing the amendment.
The purpose of the 1974 Act is to help those who have offended, who have served their sentence and then led a law abiding life, to go about their daily life and to obtain employment without being unfairly penalised or disadvantaged. It is an opportunity for someone who has truly reformed to wipe the slate clean and start again. That is fair and reasonable. But the 1974 Act does not mean that if someone commits a further offence, his original offence should be ignored in any future criminal proceedings. The 1974 Act expressly provides that previous convictions may be taken account of in criminal proceedings whether or not the conviction is to be disregarded for the purposes of the Act.
It is already the case that previous convictions, whether spent or otherwise, can be taken into account by the courts in sentencing. Under provisions in the Criminal Justice Act 1991 courts may take account of previous convictions when deciding the seriousness
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of the offence for which they are sentencing. The only exception to that is in respect of convictions for which an absolute or conditional discharge is given. There is express statutory provision in Section 1C of the 1973 Powers of the Criminal Courts Act which makes clear that such discharges are not deemed to be convictions for any purpose except in certain limited circumstances. That reflects the fact that the court has taken the view that although an offence has been committed it is inexpedient to inflict punishment.
The provisions in Clause 2 of the Bill are consistent with that wider approach, as indeed are the mandatory sentence provisions in Clauses 3 and 4 of the Bill which my noble friend does not seek to change. That is, I believe, the right approach. I see no reason at all why "spent" convictions should not be taken into account in respect of the mandatory minimum penalties in the Bill. The fact that a conviction was obtained several years ago does not necessarily mean that it is of no consequence or that it should be disregarded when the question of public safety is concerned.
The purpose of the automatic life sentence under Clause 2 is to provide greater protection for the public from serious violent or sexual offenders. The offences covered by Clause 2 of the Bill are some of the most dangerous offences—which put victims' health and well-being, and sometimes their very lives, at serious risk. The fact that the offender committed one of those offences several years ago and that on that occasion the judge did not see fit to impose a long prison sentence does not, to my mind, mean that the offender's first offence should automatically be ignored. Nor does it mean that we can assume that he is not a risk to the public.
It should be noted that convictions can become "spent" in as little as five years for most non-custodial sentences, seven years if the custodial sentence is not more than six months and 10 years if the custodial sentence is up to two-and-a-half years. It seems to me that the public should have the guarantee that someone who is, say, convicted of a serious wounding offence, for which he received 30 months' imprisonment, and is later convicted of attempted murder, will receive a life sentence even if the second offence is committed 10 years after the first conviction. If my noble friend's amendment was accepted that would not be the case. The courts would of course have the discretion to impose such a sentence. But, as I have said, in my view, unless there are exceptional circumstances about the case which the courts can of course take account of under the Bill, the public should have the assurance the automatic life sentence provides; that is, that an offender who has committed not just one but two serious offences will be detained unless he is judged not to be a risk to others.
A provision that required all spent convictions to be ignored not only introduces an element of uncertainty but could also lead to some anomalous outcomes. The question of whether an offender's previous convictions counted would depend on whether the second offence was, for example, committed 10 years and one day after conviction for the first offence or nine years and 364 days after the convictions. Clause 2 as it stands is

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clear and straightforward. Excluding "spent" convictions from its scope would not improve the provisions and could considerably reduce the protection that Clause 2 is intended to provide.
The noble Lord, Lord Thomas of Gresford, referred to the inoffensive single punch. The courts have at their disposal other ways of dealing legally with such cases. Section 18 of the 1861 Act, wounding with intent, is covered by Clause 2. However, as the noble Lord knows, Section 20 of the Act, wounding without intent is not covered by Clause 2.
Perhaps I might say to my noble friend to confirm my intervention that behaviour will be taken into account; of course it will not be the sole determinant for release. I was pressed by my noble friend Lord Belstead, and readily agreed to discuss it with my right honourable friend the Home Secretary, and amendments are coming forward in my name. They will confirm that behaviour will be taken into account. Indeed, that is the way in which the Parole Board works at the moment.
The noble Lord, Lord Thomas of Gresford, talks about someone being almost killed by a simple punch. If the simple punch is caught by the clause, it is with intent; he intended to harm. The simple punch may have seemed inoffensive at the time but, caught in the example given by the noble Lord, caused the person to be seriously injured. The noble Lord, Lord Thomas, sees such a punch as not being serious; but it is serious to the person who received it.
Lord Thomas of Gresford: My Lords, I was referring to manslaughter caused by a single punch, where intent is not required. It may be a person who aims a swinging blow which connects, so long as he intends to aim the blow; he may not intend serious harm. It is the manslaughter cases to which I refer, not the cases of wounding with intent.
Baroness Blatch: My Lords, we are talking about with or without intent in relation to the particular qualifying offence.
Lord Thomas of Gresford: My Lords, manslaughter is a qualifying offence. My point is that in manslaughter the largest divisions, the greatest gradations, occur between very nearly murder or the simple punch to which we have been referring.
Lord Ackner: My Lords, perhaps the noble Baroness will allow me to intervene. If there had been an intent in the fatal case to which reference has been made, it would be murder. In a manslaughter case no intent is required except to inflict the specific violence complained of.
Baroness Blatch: My Lords, again the noble and learned Lord makes my point. The person may not have intended to kill somebody, but will certainly have intended to harm somebody. The fact that the single punch knocked somebody to the ground and they died as a result would mean that it is a matter for the courts to determine whether that person intended to kill and
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therefore whether it was murder or manslaughter. However, the fact is that it is a violent offence and somebody was fatally wounded by the punch.
I come back to the principle. Noble Lords appear to be bent on finding ways of dealing more leniently with people who cause serious injury to members of the public. We are saying that repeated offences of violence, sexual or otherwise, should be regarded as extremely serious. My noble friend does not agree with Clauses 2, 3 and 4 and I respect that point. We agree to differ in that regard. But we regard violent and sexual offences as serious and believe that the minimum mandatory sentence is important and pertinent.
My noble friend Lord Carlisle referred to automatic life sentences as being inconsistent with honesty in sentencing. Again, the tariff that is set to reflect the seriousness of the offence is announced in open court. Everyone will know what it is and exactly how long the offender must serve before being released. On release the offender will be supervised for life. That is the point of the clause.
There is a balance to be struck between ensuring that the public are properly protected from dangerous and persistent offenders and ensuring that the courts have some discretion to set aside the mandatory penalty in certain circumstances. The Bill allows the courts to set aside the automatic life sentence in exceptional circumstances—which may include the circumstances of the previous offence, the current offence and any other relevant factors. I believe that this provides the necessary balance. I do not think the provisions would be improved by introducing uncertainty and what amounts to an element of luck on the part of the offender as to whether his previous conviction will count. I hope therefore that my noble friend will not press the amendments.
Lord Carlisle of Bucklow: My Lords, I am disappointed by that reply. I never suggested that because an offence was spent it should therefore be ignored for all purposes. Perhaps it was my fault for not making my position clear. Of course the courts can look at spent convictions. They can still look at spent convictions under my amendment. That is part of the history of the individual which they take into account when deciding what is the appropriate sentence. The purpose of my amendment was not—nor do I believe that, as drafted, it did it—to say that in future the courts should be oblivious of or ignore spent convictions. It was to say that if a conviction was spent, that should not automatically trigger a life sentence. Equally, with great respect, at the end of her remarks my noble friend the Minister came very near to saying that those of us who are critical of such Bills are in some way soft on crime. I repeat: I do not believe I am soft on crime. I have said that my amendment would not prevent the courts passing either a life sentence or a long determinate sentence, whichever they thought was appropriate, in a particular case. What I object to is the mandatory provisions which will interfere with the ability of the courts to do justice.

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Perhaps I may say to my noble friend with great respect—this may have been dealt with by the noble and learned Lord, Lord Ackner—that the point I was making and the point that the noble Lord, Lord Thomas, was making was that manslaughter does not require an intent to do serious bodily harm. The Minister insisted that those who kill with one blow, if they intend to do serious bodily harm, should take the consequences. That would be murder. The difference with manslaughter is the causing of the death unlawfully but without intent to do serious bodily harm. If two people agree voluntarily to enter into a fight and one strikes the other and tragically that other dies, that is the unlawful infliction of harm even if there was no intention whatever to do serious bodily harm. With the greatest respect, the Government do not enhance the credibility of their proposal by misunderstanding many of the objections that have been made.
As the noble Lord, Lord Thomas, has reminisced on occasions, I wonder whether I might give one example. I prosecuted in a case at Lancaster Assizes which was defended, as it so happens—this is merely for background information—by my noble friend Lord Waddington, who is now in rather warmer climes than us in Bermuda. A wife was charged with wounding her husband with intent, the facts being that he had provoked her and provoked her until she eventually, in a fury, grabbed a carving knife and stabbed him. By the time the case came to trial the woman and her husband were reconciled. That wonderful judge, Mr. Justice Stable, who will be remembered by some of the learned Law Lords present, even said to the warder, "Take that lady out of the dock and let her come and sit in the witness box". On her plea of guilty to wounding with intent, to which she had no answer, he addressed her in a friendly manner, pointed out the possible disastrous consequences of what she had done and then told her to go home and live the rest of her married life in bliss with her husband. Is my noble friend really suggesting that instead he should have said, "You must go to prison for life"? Situations change so much.
Baroness Blatch: My Lords, I am grateful to my noble friend for giving way. If the lady commits that offence again at some time in the future, or indeed had committed a similar violent offence at some time in the past, is he saying that it would be a one-off isolated case to be treated leniently in the courts?
Lord Carlisle of Bucklow: My Lords, under the Bill it may not be necessary for it to be the same offence. It may be that a person at the age of 15 had been swept up as a look-out for a gang which was involved in a street robbery and even on that occasion may have been dealt with without being sent inside and then, 25 years later, appears in the circumstances which I have given. I realised, as I was making the analogy, that of course it is subject to there having been some other offence. But the purpose of the amendment is not to be weak on crime but to point out that the difference in degrees is such that one should have some flexibility in the courts. The amendment is an attempt to give the courts that flexibility.
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I should have liked to press the amendment to a vote. However, as the noble Lord, Lord McIntosh, has not only abandoned the support that he was prepared to give to the proposal in Committee but is not even here, and since New Labour appears to have lost all principle of any kind so far as concerns this Bill, it would be merely wasting the time of the House. I just say this to the Minister. I think it is tragic that the Home Office is not willing to consider any of the proposals that are put forward. I hope that noble Lords on the Liberal Democrat Benches may choose to divide on the next amendment, which is wider in its interpretation than that which I moved. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 2:
Page 2, line 3, after ("unless") insert (", in the interests of justice,").
The noble Lord said: My Lords, the House will remember that five weeks ago, when the Bill was spending its first day in Committee on 13th February, it agreed significantly to amend what were then Clauses 2 and 3 of the Bill, which are now Clauses 3 and 4 of the Bill, on a Motion of the noble Lord, Lord McIntosh of Haringey. The amendment was supported on all sides of the Committee. Perhaps I may remind the House of the key parts of it.
It removed from the clauses to which I referred the phrase "exceptional circumstances" and in its place said that the courts should have regard to the specific circumstances which would make,
"the prescribed custodial sentence unjust in all the circumstances".
I abbreviate the amendment slightly not to mislead your Lordships but simply to remind the House of the nature and purpose of the amendment to which it then agreed.
In essence, the amendments now before the House and standing in my name seek to do for what was Clause 1 and is now Clause 2 what was done in the amendments moved by the noble Lord, Lord McIntosh of Haringey. The amendments follow very closely the amendment which was tabled but not moved by the noble Lord, Lord Carlisle of Bucklow, on that occasion. The issue raised by the amendments and by the clause were fully explored at Second Reading and in the discussion we had on Clauses 2 and 3 of the Bill. I hope that the noble and learned Lord, Lord Bingham, will allow me, because it may well be that he wishes to contribute later to the debate, to quote from some remarks he made at Second Reading. They are a very forceful expression indeed of the shortcomings of the clause. Of the provisions of the clause, the noble and learned Lord said—
Lord Renton: My Lords, will the noble Lord give the column number of Hansard from which he is about to quote?
Lord Rodgers of Quarry Bank: My Lords, I normally give the column number after I have given the quotation. However, if it will help the noble Lord, I am

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referring to col. 986 of Hansard of 27th January. I think the noble Lord will find that I very fairly quote—I would not want to do otherwise—what the noble and learned Lord said. He said that the solution contained in Clause 1 was "irremediably flawed", that it would give rise to "indefensible anomalies" and that those anomalies were symptoms of "a radically unsound approach". In addition, he said,
"To some extent measures of this kind are also self-defeating".
The noble Baroness, Lady Blatch, had a great deal to reply to in that debate. I do not believe that I am being unfair when I say that her references to the remarks of the noble and learned Lord were scattered throughout her reply at Second Reading. There were many other matters to discuss. I hope very much that she will take the opportunity today to reply in substance to these very important points.
Nothing much has changed since 27th January, except perhaps that the chairman of the Prison Governors' Association has expressed the deepest alarm at the growth of the prison population. That is something which was referred to by noble Lords on all sides of the House when they contemplated the possibility of this Bill adding between 10,500, which I believe was the Minister's figure, and 30,000 to the prison numbers. The chairman of the Prison Governors' Association, in a statement which seems to me to be without parallel, referred to the dangers which would come in terms of security because of overcrowding. As I say, that is in respect of the provisions of this Bill. He said in his remarks on Wednesday of last week,
"We can no longer cope with this unprecedented rise. No one in their right mind would seriously consider the introduction of prison ships and abandoned holiday camps as prison accommodation … The Prison Service has reached the crossroads where policy and operations meet".
In the debate on that occasion, I referred at length—perhaps at too great a length—to the alternative forms of prison accommodation then being anticipated. I said, as regards the additional prisoners who have to be accommodated,
"Are they to be accommodated in disused military camps, in a former Pontins holiday camp … or is the front runner still a prison ship? Can the Minister say categorically that police cells will not be regularly used?".—[Official Report, 27/1/97; col. 982.]
The Minister will recall that she was unable to reply to these questions given the pressure of time. Perhaps I may anticipate what she might have said, if that inversion of time is possible in your Lordships' House. In response to,
"Are they to be accommodated in disused miliary camps?",
she might have said, "Possibly". In response to my question,
"in a former Pontin's holiday camp?",
she might have said, "If we can get planning permission". In answer to the question whether the accommodation would be in a prison ship, she might have answered, "Yes". But what would she have said about the possibility of accommodation in police cells? In replying to this particular group of amendments, I ask her to say something to your Lordships about whether she anticipates sooner or later that the overflow of
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requirements for prison accommodation will involve stays in police cells. If the Minister is prepared to reply now I shall be very grateful.
Baroness Blatch: My Lords, I rise because I am fascinated by the line of argument that the noble Lord is using. We are talking about Clause 2. The amendments are about setting aside the mandatory life sentence in more cases than are allowed for under the Bill. There is no question whatever of curtailing, changing, modifying or varying the tariff that will be imposed by the courts. Therefore, the impact on prisons is not affected one iota by Clause 2 of the Bill. The courts will give a tariff which entirely reflects the seriousness of the crime. No one is suggesting otherwise.
Lord Rodgers of Quarry Bank: My Lords, I shall turn very briefly to the question of the tariff in a minute. I make it absolutely clear that the present problem of overcrowded prisons cannot relate to this Bill. The noble Baroness is saying that it cannot relate to Clause 2 either. If that is her point I shall consider it. My understanding of the Bill, given her remarks about the tariff, is that the prospect of the provisions of Clause 2 will in due course add to the prison population. However, if the noble Baroness says I am wrong I am willing to consider it. But irrespective of that, I hope that she will reply to the specific point that I have raised. Will she say in the course of her reply on this occasion whether in the near future we shall find that the overcrowding of our prisons will lead to the use of police cells? It is a simple question and I ask the Minister to give a simple reply, irrespective of whether she believes it is relevant to the discussion about this clause.
As regards the tariff to which she referred and which, I believe, was in the mind of the noble Lord, Lord McIntosh of Haringey, at one stage in the discussion on this clause, judges already have discretion in setting the minimum period to be served under the life sentence. It is very interesting to reflect on what was said about this in discussion in another place. The Minister's colleague, Mr. Maclean, said as regards the argument on tariffs,
"it will be entirely up to the judge to set up an appropriate tariff within the automatic life sentence, taking account of the seriousness of the assault for which the person has been found guilty under section 18".—[Official Report, Commons Standing Committee A, 14/11/96; col. 66.]
Unless the Minister says otherwise, I assume that those sentiments are ones that the Minister herself will express. Surely it makes nonsense of the idea of honest sentencing and holds the whole system of sentencing up to disrepute, if indeed the judge has complete discretion under the tariff in the provisions of this clause.
I do not want to add anything further because I know that noble Lords on all sides of the House want to contribute. With respect to the Minister, I hope that she will not say, as she said in relation to amendments to what were then Clauses 2 and 3, that persons in fear of life sentences will rejoice in these amendments. That is not a sufficient case against them. I hope that neither

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will she seek to speak "for the man on the top of the bus". To change the expression, I hope that she will not say, as the Home Secretary and the noble Baroness, I believe, have said, that these amendments will drive a coach and horses through the Bill.
I agree with what the noble Lord, Lord McIntosh, said on the first day of Committee stage that they were not wrecking amendments. These are not wrecking amendments, even if some noble Lords might like them to be so. They should be judged on their merits. I beg to move.
Earl Russell: My Lords, I did not realise that the Minister was going to intervene quite so rapidly. I believe that some people on the Cross-Benches wish to speak. I hope that, after me, the Minister will wait in order to allow them to do so. I am a little bewildered by the Minister's references to the tariff. The point raised by my noble friend Lord Rodgers of Quarry Bank about how the imposition of a sentence which has nothing whatever to do with the tariff is compatible with honesty in sentencing. It is one that has puzzled me for quite some time.
I notice the noble Baroness registering—shall I say "dismay", if that is a sufficiently courteous way of putting it.
Baroness Blatch: My Lords, I express dismay on two counts. The noble Lord, Lord Rodgers, did not speak to his amendments. His line of argument was entirely to do with the length of custody and not with the test for applying the automatic life sentence. I am also dismayed at the gratuitous insult just afforded to me by the noble Earl. I got up rather slowly then. I looked around and nobody seemed to be rising. In fact, the noble Earl rose from his seat rather slowly because I believe that he too was looking around the Chamber. I hope I have never had a reputation in this House for cutting people out of debate.
Noble Lords: Hear, hear!
Baroness Blatch: My Lords, I have always made sure that people who wish to speak in a debate do so.
5.30 p.m.
Earl Russell: My Lords, I made no imputation at all in relation to the noble Baroness's motives. If she thought that she heard such an imputation, I am happy to withdraw it unreservedly.
But the point that she made about my noble friend's line of argument is rather more substantial and deserves rather more of a reply. As I understand her, she complains that my noble friend was talking about length of time served and not about length of sentence. Is the noble Baroness telling us that length of time served has no relationship to length of sentence? If she is telling us that, I really cannot see how that is compatible with any claim whatever to honesty in sentencing.
Indeed, the whole question of the relationship between the tariff and the sentence has been far too little explored during the course of the Bill. The specific
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words of the amendment take out "exceptional circumstances" and instead insert "specific circumstances". In line 3, they insert after "unless in the interests of justice". Amendment No. 4 seeks to insert the words,
"would make the imposition of a life sentence unjust in all the circumstances".
Those are very much nearer to words which should be used in any Bill which purports to be concerned with the administration of justice. I have always been unhappy about the words "exceptional circumstances". I listened with great care to the words used about them at Second Reading by the noble and learned Lord, Lord Bingham of Cornhill. There are two ways in which the words "exceptional circumstances" could be construed: either because you believe all cases are different, as I do, in which case you could construe all circumstances to be exceptional; or, as the noble and learned Lord assured us the courts are more likely to do, you could give a much stricter and tighter construction, as courts must obviously be inclined to do, and then find that very few circumstances are exceptional.
The word "exceptional" will mean that we shall find no end in wandering mazes lost. The word "specific" is what is needed if we are to make any attempt to do justice. If we are considering what is the right sentence in a particular case, we must consider what happened exactly in that particular case; in other words, the specific circumstances.
The noble Baroness is obviously not pleased with that idea but I cannot for a moment understand why. I cannot understand how anything else can purport to be just and I cannot understand how a mandatory sentence can purport to be just, whatever its length, even if it is the right length for that particular crime. Then it is, as the Italians say when two trains meet at a junction, coincidenza.
We are asked also in Amendment No. 4—and this is important—to consider whether the sentence would be unjust in all the circumstances. Here I should mention the briefing that we have received from Women Against Rape which deals particularly, among other things, with murders and manslaughters committed by people who have been victims of domestic violence. Those cases are capable of producing the most tragic injustice.
The noble and learned Lord, Lord Taylor of Gosforth, in the Ahluwhalia case has given a truly memorable judgment on that which I am pleased to see tends to be being widely followed; but it is not always. The Minister will remember the case of Sara Thornton which caused her department considerable perplexity in times past. I have written to her department on that case, which turned out to be more complicated that I then realised. I must apologise to the department for writing letters which were not always fully conversant with all the facts. But in making that apology to the Minister's department, I merely underline the basic point of my case: that until you know about all the specific circumstances of a particular offence, you cannot have the first idea about what type of punishment should be imposed.

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In considering this amendment, we must consider also that we have not yet received any favourable response to the amendment moved right at the very end of the Committee stage by the noble Lord, Lord Carlisle of Bucklow, and spoken to with great eloquence by the noble and learned Lord, Lord Bingham of Cornhill, about the discount for guilty pleas. That also is a point of considerable concern to Women Against Rape because where there is no sufficient discount for guilty pleas, a rapist or, indeed, a burglar, detected by a night watchman is sometimes under temptation to kill in order to destroy the only possible witness. If we should make that more likely then, in my opinion, we should not be protecting the public. For those reasons, among others that I shall not list at present, I am happy to support my noble friend's amendment.
Lord Bingham of Cornhill: My Lords, to impose a life sentence on any defendant in any circumstances is a solemn and serious thing. That is not because most such defendants spend the rest of their lives in prison; it is well known that they do not. Nevertheless, it is solemn and serious because when such a sentence is passed, the defendant potentially forfeits the rest of his life to the state.
In current circumstances, it is the most drastic penalty which society gives itself the power to impose. Unhappily, such sentences are sometimes necessary. I am not now concerned to argue against the mandatory life sentence for murder. I accept without qualification that such sentences are sometimes necessary for the protection of the public in other cases. None of that is controversial. No one this evening on these amendments is arguing against life sentences. As I understand it, these amendments seek merely to ensure that that solemn and serious step should not be taken where it is not in the interests of justice to take it or where it is unjust in all the circumstances to impose such a sentence.
I am not asking that the courts should be above the law. Throughout I have accepted the power of review and the right of the Attorney-General to go to the Court of Appeal and say, "A life sentence should have been imposed in this case and it was not. Please impose it". But I am bound to say to your Lordships that speaking purely for myself, I cannot see any rational ground for opposing these modest amendments.
How can it be contrary to good government or the administration of justice that those draconian sentences should not be imposed mandatorily where it is not in the interests of justice to impose them or where it is contrary to justice to do so? Faced with these amendments, I would expect the noble Baroness, who has been so patient in these debates, to say, "Yes, of course, it goes without saying. How could the Government wish mandatory life sentences to be imposed where it is contrary to the interests of justice?" Instead of that, we find implacable opposition to what is an obvious and very modest addition to the Bill.
Lord Ackner: My Lords, I should like to raise three particular separate matters and ask the noble Baroness for her assistance with regard to them.
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The complaint has been made that in, I think, 1994, there were 217 cases in which there was a second conviction for one of those so-called serious offences. Out of the 217, only 10 were the subject matter of a life sentence. We are given no particulars of those cases but we do know that six of them were referred by the Attorney-General to the courts but he did not seek a life sentence in any of them.
The Attorney-General has a pretty traumatic existence. He is disliked by the press because it is his function to bring proceedings for contempt. He is constantly a target of one kind or another. But I do not see why he should be attacked sub silentio by the Government unless they justify that attack. It follows from the criticisms made in regard to those statistics upon which the Government rely so much that, out of the 207 cases, the Attorney-General should have referred, if not all, certainly a major proportion; otherwise, there is no justification for these provisions at all. As I have understood it, the justification is that the judiciary is not doing enough to protect the public and accordingly it must lose its discretion, right and duty to sentence in this type of case. But it means that if the judges were being unduly lenient, as is alleged, the Attorney-General failed in his statutory obligation to bring to the attention of the Court of Appeal cases of this kind where it was said that he had been unduly lenient.
Clearly, this matter gave the Home Secretary some concern. Correspondence was raised to this effect. He wrote in reply to the Sunday Telegraph on 23rd February—I read only the material part of the letter—
"Mr. Palmer asks why the Attorney General had not exercised his power to refer the other 207 cases to the Court of Appeal. The answer is that the Attorney General can only refer to the Court of Appeal if they are 'unduly lenient'. Long sentences are frequently imposed on offenders convicted of serious violent and sex offences—which cannot therefore he challenged as unduly lenient".
An intelligent first-year law student would have done better than that. The first thing that he would have been told to do would be to refer to the sentencing encyclopaedia and manual. There he would have found two quite recent cases brought by the Attorney-General in which the Court of Appeal (Criminal Division) had upheld his submissions that a long sentence (in one case 12 years) was unduly lenient and imposed a life sentence. Statistics on this subject were referred to in debate before the letter of Sunday 23rd November.
I therefore put to the noble Baroness the question that the Home Secretary so signally failed to answer. If she suggests that out of 207 cases the judges imposed unduly lenient sentences, (a) will she identify them, and (b) will she say why the Attorney-General has apparently failed in his statutory duty?
My second question arises in relation to the imposition of the false label "life imprisonment". It is a false label because the Government do not intend, save in a tiny minority of cases, that a person so sentenced should stay in prison all his life. That is a false label which involves all the paraphernalia of tariffs and parole. For over 20 years there has lain on the shelves of the Home Secretary an immensely detailed report of a committee presided over by Lord Butler dealing with

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the problem of persons who have been convicted and given determinate sentences and then have been released when there is still a danger. He proposed that there should be offences dealt with in that way under a quite different heading. He suggested that they should be reviewable sentences. That involved medical evidence to establish that the offender was a danger and every two years consideration of the person's position. It also meant that if the person was discharged from prison there should be a licence that would last for the remainder of his life, subject always to review.
If there was a serious problem, why was that report never debated? It never was debated in either House. If there was a serious problem, why was not the suggestion in that report looked at? If there was a serious problem, why was it not referred to the Law Commission to see whether an up-to-date approach was appropriate? Why was it not realised that it had considerable advantages over the false label which in the interests of honesty in sentencing the Government insist upon?
Those advantages are at least the following. First, the reviewable sentence was not limited to a second offender. One could start right in, provided it was the appropriate category of offence. Secondly, it was not the restricted list in this case which covers all cases in which the maximum sentence is life. The appendix to that report set out two categories of case: one in which those who were sentenced had a sentence that was capable of being life and those which were not but which had to be a second offence following the life sentence type of case—so much wider. Thirdly, one had to have medical evidence.
There is no requirement for medical evidence in regard to the automatic life sentence proposed by the Government. They look with equanimity upon a judge saying to an individual, "I am obliged by Parliament to impose a sentence of life imprisonment on you. I am also obliged to explain to you precisely what I am doing, so do not be upset by the macabre sound of the words 'life sentence' because they do not mean what they say. In your case I am quite satisfied by the evidence that there is nothing that suggests you are a danger. The facts of the case, involving violence but in circumstances which are very special, oblige me in the exercise of my powers to specify that the element of the life sentence which should be looked upon as punishment and as a deterrent is 18 months. Because I have already indicated that I do not consider that you are in any way a danger, I have alerted the Parole Board, which must be satisfied in 18 months' time that you are no longer a danger so that it can put an entry into its diary and keep you in prison not a moment longer than your medical condition requires".
In Lord Butler's proposal one did not go through that charade. You had your medical evidence and you operated on that. The Minister was kind enough to say in the debate on 13th February when she was replying to an intervention of mine in which I raised the matter of the Butler Report:
"The noble and learned Lord makes an interesting point. I can tell him that many hours were given over to the consideration of that option".—[Official Report, 13/2/97; co1.367.]
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I should like to know what was the result of those many hours. First, why was not the Butler Report revealed to Parliament during the debate; and, secondly, why were we not told why the Butler option was not operated instead of the false label still under the heading of honesty in sentencing?
The third area of information for which I should be grateful relates to the 1990 White Paper, because this was not only my plea; it was the plea, to which I referred in terms today, of the former Home Secretary in the debate resulting from a Motion moved by my noble and learned friend Lord Taylor in May last year. In that debate, the noble Lord, Lord Carr, drew specific attention to the 1990 White Paper, and explained that the Government had gone totally in reverse. He said, as I have already quoted:
"I do not believe that in respect of such a vital matter the Government can just go into reverse in this way without explaining more deeply and clearly to us in Parliament and to the public as a whole why six years ago they were wrong—not just a little wrong but fundamentally wrong—and are now fundamentally right".—[Official Report, 23/5/96; col. 1051.]
We have never been told how that volte face came about. We have never been shown any research, and consideration. All we have is essentially the figure of 217 in regard to those serious crimes, unexplained, and clearly an indirect attack upon the Attorney-General.
That is all I propose to say in support of the amendment, save that in so far as the amendment seeks to ensure that the judge can do justice with regard to the offender before him, and in so far as the Government resist that amendment, the Government are clearly, by implication, on occasions obliging the judge to do injustice.
Lord Carlisle of Bucklow: My Lords, the noble and learned Lord, Lord Bingham, said succinctly everything that can be possibly and unanswerably said about the amendment. I rise only to ask my noble friend the Minister two matters with regard to the issues that have been raised and the relationship between the tariff and the life sentence. First, is it the Government's intention that in passing sentence, let us say, the judge will say, "You will go to prison for life and you will serve a period in my view of two years?" If that is so, in what way does that enhance the dignity of the court rather than undermine the importance of the life sentence?
Of course the judge pronounces the tariff in murder cases at the moment, but invariably in the 10s of years, 20s of years, or even further, or for life as a whole. But here, as has been accepted by my noble friend the Minister during the previous debate—I think accepted—the variety of offences that will be caught means inevitably that there will be cases where the judge will be saying,"You will go to prison for life and the tariff will be"—then something fairly modest. Does she believe that that will enhance the standing of the court in the eyes of the public?
Secondly, did my noble friend really mean it when she said to the noble Lord, Lord Rodgers, that the clause would in no way increase the prison population? I realise of course that she was saying that, since the person will not serve life, he or she will serve the tariff,

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and that therefore, if the tariff equates to the other sentence, that in itself—I accept it and I accepted it in an earlier speech—will not affect the prison population. But as I understood it, the whole raison d'être of this clause as set out in Protecting the Public is that people will be able to be kept in prison beyond the end of the tariff sentence. That is the argument for it, and if that is not the argument, what is the argument?
Thirdly, will my noble friend tell us what thought the Government have given as to what the tariff should apply? Is the tariff intended to be the sentence that the judge would have given were he not required to impose a life sentence? Because if it is, and since she said that the provisions for early release will not affect the period of the tariff, that in itself will increase the length that the person spends in prison by anything up to 18 per cent.—because if you pass a sentence of three years on someone who has pleaded guilty to a glassing, and that person then obtains full remission, he or she will come out at three years less 18 per cent.
If there are two people together and you pass a sentence of life imprisonment for a second offence but say that the tariff shall be three years on the plea, that person will serve longer than the person to whom you have given the three years, because that person will serve the three years in full. Or is the intention—have the Government given thought to this—when deciding what the tariff is that the judges should not only first do the mental arithmetic job of reducing the existing sentence by 66 per cent. under Clause 23 so as to provide for the proposals for early release but that they should then reduce the sentence by a further 18 per cent. so as to achieve their purpose of not increasing the prison population? That is what my noble friend said. She said that it would not by one jot increase the size of the prison population.
Have the Government thought this through? Is it intended that the period of the tariff sentence should be less than the sentence that would otherwise be given if the provisions did not apply? If so, are we not in the rather ironic situation that with two people charged with the same offence one is sentenced for a first offence and is given six years by the judge, while the other is on his second offence and the judge gives him life; but is required instead of giving him six years to say, "You will go to prison for only five years"? It does not seem to me that that will enhance the standing of the courts in the eyes of the public.
6 p.m.
Lord Ackner: My Lords, with the leave of the House, perhaps I may provide the noble Baroness with the reference for which I was looking but could not find. It is in the Second Reading debate on 27th January 1997, at col. 987 of Hansard. The Lord Chief Justice said that during the calender years 1995 and 1996 the Court of Appeal, on references by the Attorney-General, reviewed the cases of 86 offenders in whose case a life sentence had been imposed and in only four of those cases did the Attorney-General ask the Court of Appeal to substitute a life sentence and in two cases the court did so, in two it did not, and in one other case it did so
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although it had not been asked to do so. Therefore, the Home Secretary or his advisers would have known before he wrote the letter some months later that the Attorney-General had all the power in the world to refer wrong sentences for a life sentence on the grounds that they were too lenient.
Lord Thomas of Gresford: My Lord, the false label to which the noble and learned Lord, Lord Ackner, referred, is emblazoned in the title to Part I of the Bill,
"Mandatory and minimum custodial sentences".
and in the marginal note to Clause 2, which reads:
"Mandatory life sentence for second serious offence".
The Government concede that it is not the intention to impose a life sentence—a sentence for the whole of a person's natural life. I cannot improve upon the argument which the noble Lord, Lord Carlisle of Bucklow, has just advanced in which he pointed out that a judge who is required to announce the tariff—the punitive element of the sentence—may in appropriate circumstances be announcing a tariff of as little as two or three years and thereby devalue the whole concept of the expression "life sentence".
However, the Government also concede that it is not a mandatory sentence because they allow a judge to pass a different sentence in exceptional circumstances, as the clause is drafted. It is that expression, "exceptional circumstances", which is criticised. It is a vague phrase which has been used in relation to suspended sentences. It has been given a very limited meaning. I apologise for referring to an illustration which I gave at an earlier stage of a case in which I was involved in which a level-crossing keeper was convicted of manslaughter as a result of failing to close the barriers on the level crossing. As I recall, that was the last occasion in my experience when a suspended sentence was imposed—that being an "exceptional circumstance". In that case, the judge made it quite clear that it was very unlikely that he would ever pass a suspended sentence again, having regard to the guidance that he had received.
I have sought clarification of the phrase "exceptional circumstances" not only at the Committee stage of this Bill but also on the Bill relating to Scotland. In relation to the Scottish Bill, the noble and learned Lord the Lord Advocate said in terms that it is for judges to decide what are exceptional circumstances, and refused to illustrate or to give any further guidance on what he thought that the phrase "exceptional circumstances" meant in the Scottish Bill and in this Bill. If it is simply left to judges to decide, surely it must be implied that judges are required to exercise their own judgment as to what is just and what is unjust in a particular case. What are "exceptional circumstances"? Surely it is what is just or what is unjust.
The expression contained in the amendment—"unless in the interests of justice the court is of the opinion that there are specific circumstances relating to either of the offences or to the offender which would make the imposition of a life sentence unjust in all the circumstances"—sets out the purpose of a different sentence being imposed—namely, that it be imposed in the interests of justice—and the reason why a different

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sentence is imposed—namely, that a life sentence would be unjust. What is wrong in giving that specific guidance to judges, who, in a particular case, would be required when imposing the sentence to say what specific circumstances they had in mind and why it would be unjust to pass a life sentence in all the circumstances of the case?
I fear that this clause devalues the currency of the expression "life sentence" altogether. I support the views expressed by the noble and learned Lord, Lord Bingham, that so far "life sentence" has meant a solemn sentence and, as he put it, a sentence which potentially forfeit the rest of the defendant's life to the state. A life sentence has always been regarded as something to fear, something of which one should be afraid. However, as used in this almost technical way in this clause, a "life sentence", coupled with the tariff of two, three or four years, will reduce the value of that expression entirely. I support the amendment.
Lord Hacking: My Lords, this is the first time that I have intervened during the Report stage of this Bill. If I speak very quietly I hope that your Lordships can hear me and I hope that I shall not be speaking too loudly for my learned friend who is sitting on the Bench beside me—
The Earl of Onslow: My Lords, I am not learned!
Lord Hacking: My Lords, I am grateful for that polite intervention.
I have expressed great concern about the course which your Lordships are now taking with regard to this Bill. I anticipated it last night and it was then that I spoke. Having listened to the whole of this debate—I shall not repeat a single argument that has been presented to your Lordships—I ask noble Lords seriously to consider the amendment. When the noble and learned Lord—I correctly describe him—the Lord Chief Justice, comes to your Lordships' House, as he has come again today, to advise us against the dangers in which we are placing ourselves by proceeding with these mandatory sentences without sufficient checks—or by proceeding with them at all—and when the noble and learned Lord his predecessor (who I am glad to see has been in the Chamber all day today) who bravely opened our debate on 23rd May last year, has also given that advice to your Lordships, advice which has not been available in another place, it is a matter of great concern to me that your Lordships should listen to that advice from members of the judiciary and to the advice of those with such experience in these matters as my noble friend Lord Carlisle. In considering the amendment, we should therefore press our case.
Baroness Blatch: My Lords, the provision in Clause 2 is not to impose a more severe punishment on the offender—the court will set the appropriate tariff to reflect the gravity of the offence. Rather it is to ensure that when the tariff has been served, the offender—who, after all, is a repeat violent offender—is released only if the Parole Board is satisfied that it is safe to do so. Unlike the tariff, this is not a decision which the trial
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judge will normally be in a position to make when passing sentence. There is therefore an important conceptual difference, which I know those opposed to the Bill have recognised both in this House and another place, between the automatic life sentence in Clause 2 and the mandatory minimum prison sentences in Clauses 3 and 4.
There may, nevertheless, be cases in which it is neither necessary nor appropriate for the court to impose the automatic life sentence, and that is why subsection (2) provides discretion for the court not to impose a life sentence if it considers that there are exceptional circumstances relating to either of the qualifying offences or to the offender which justify doing so. Given the nature and purpose of Clause 2, this is a discretion which I would expect the court to exercise very sparingly indeed.
The effect of Amendment No. 2, which stands in the name of the noble Lord, Lord Rodgers of Quarry Bank, would be to insert an additional proviso into the test which the court must apply when deciding whether to exercise its discretion. The court would be required to impose the life sentence,
"unless, in the interests of justice, it is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so".
I have to say that, so far as I can see, the net result of the amendment would be to add a number of extra words and some confusion. The Bill as it stands makes it clear that there must be exceptional circumstances which are sufficient to justify not imposing the life sentence; and the proposed amendment would not change that. The Bill does not specify that in determining this the court should further consider the interests of justice because it is unnecessary to do so. If there are exceptional circumstances, and they are sufficient to justify not imposing the mandatory life sentence, then it could not possibly be in the interests of justice to do so.
Clause 2(2) as it stands provides a clear and straightforward test. The proposed amendment, in my view, is unnecessary and detracts rather than adds to the clarity of the Bill. I hope, therefore, that the noble Lord, Lord Rodgers, will not press the amendment.
Amendments Nos. 3 and 4, which also stand in the name of the noble Lord, Lord Rodgers, go much further. Taken together, they would allow the court to set aside the life sentence if it considers that there are specific circumstances relating to either of the qualifying offences or to the offender which would make the imposition of a life sentence,
"unjust in all the circumstances".
It is rather difficult to think of any relevant circumstances which are not specific and which do not relate either to the offence or the offender. The effect of these amendments would therefore be to leave the trial judge with an entirely open-ended discretion to set aside the automatic life sentence if he considered for whatever reason that it would be unjust. Our firm view is that where an offender has been convicted of two serious violent or sexual offences, he should not be released unless and until it is safe to do so. That is what the

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automatic life sentence is designed to achieve. I hope that the House will agree that the trial judge should have discretion to set aside the life sentence, and the protection of the public which it affords, only in rare cases. That high threshold is what the "exceptional circumstances" test is designed to achieve.
Perhaps I may now refer to some of the points raised during the course of the debate. I turn first to the points made by my noble friend Lord Carlisle about the automatic life sentence. The period of custody, the tariff to be served, will be determined by the judge and should reflect the seriousness of the offence. I was asked whether that would increase the prison population. I cannot see why it would automatically do so, because it would be for the judge to determine the tariff period at the end of which the Parole Board would consider the safety of release of the offender. Therefore, that would be taken into account by the judge in court because the tariff period to be served is entirely related to the offence just as it is now. However, the difference is that the automatic life sentence is made, first, because it is a repeat offender—that is, someone who has repeated a violent or sexual offence more than once—and, therefore, there are proper arrangements for his release into the community. I want to continue with that point because it relates specifically to the remarks made by the noble and learned Lord, Lord Ackner.
Lord Carlisle of Bucklow: My Lords, I should point out to my noble friend the Minister that my question was whether the tariff was meant to equate with the sentence that the judge would have passed if it were not a case that came within the mandatory life sentence. Alternatively, is the tariff meant to equate with the length of sentence which that person in practice would have served; in other words, is it to be equated with the sentence, less that which the person would get off for good remission? If not, it puts up the sentence by 18 per cent.
Baroness Blatch: My Lords, I shall deal with my noble friend's points in a moment. However, I want now to refer to a point made by the noble and learned Lord, Lord Ackner, relating to medical advice. There is absolutely nothing in the Bill which precludes the court taking any advice it needs, which would include medical advice, before passing sentence—or, in this case, it would be the tariff period. In determining the length of tariff to be served in custody as part of a life sentence, I cannot see why the courts should be precluded from taking any form of advice.
The point made by the noble and learned Lord, Lord Ackner, provides a link with that made by my noble friend. I refer to the 207 cases of repeat violent offenders who were not subjected to a life sentence. The noble and learned Lord was concerned as to why it was that the Attorney-General did not make application to the Court of Appeal because of lenient sentences. The important point that we do not know about the 207 cases of repeat violent offenders is whether, when they were released from prison, they were in fact safe in the
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community. We do not know how many of those people went out, having repeated an offence not just once but twice, and repeated yet again.
From those opposed to the Bill in this House, there appears to be a dogged determination not to accept that the purpose of the automatic life sentence for repeat violent and sexual offenders is that they should be subject to release arrangements which consider the protection of the public, because they are repeat offenders, and which provide life-long supervision for repeat violent and sexual offenders.
Lord Ackner: My Lords, I apologise for interrupting the Minister. However, the whole point of the Attorney-General intervening in a case where there is a long determinate sentence and arguing for a life sentence is to protect society. It is on the basis that the determinate sentence does not do that adequately that the Court of Appeal changes the determinate sentence to a life sentence. That is what happened in reported cases on the Attorney-General's reference. The fact that the Attorney-General has not sought to do so when all the material is there, I should have thought indicates that either the Attorney-General is grossly incompetent, which I do not accept, or that these are cases which were properly dealt with by the determinate sentence. It must be one thing or the other. If the Minister is complaining that some or all of the 207 cases should have received life sentences, then she is indirectly alleging that the Attorney-General has failed to carry out his statutory duty.
Baroness Blatch: My Lords, I am doing no such thing in my response. The noble and learned Lord quite properly asked me why the Attorney-General did not refer 200 or more cases in 1994 involving serious violent or sexual offences. The answer is straightforward. Perhaps I may quote the judgment of the then Lord Chief Justice, Lord Lane, who held in 1989 that a sentence would be unduly lenient only,
"where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably have imposed".
That means that the Attorney-General may only refer cases which are outside the range of sentences. It is the tariff which reflects the seriousness of the sentence. The purpose of the automatic life sentence, as I keep having to repeat, is to ensure that a dangerous offender will be released only if and when it is safe to do so. There is no determinate sentence, however long, that can provide the protection for the public which is associated with a life sentence.
When a determinate sentence reaches the point where the prisoner is automatically released, he is released. I have visited prisons and spoken to prison officers who have looked me in the face and said, "Lady Blatch, I have to tell you that it is only a matter of when this person commits the next crime, not if he commits the next crime". They know that that person will be automatically released from prison when he is unsafe to be released into the community. We have made a proper response to this issue of the safety of the public. I make no apologies to the noble Lord,

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Lord Thomas of Gresford, in respect of a man on top of a bus or in a market square. There is much community concern about the incidence of violence and in particular about repeat acts of violence. We shall continue to speak for those people against the learned voices in this House who have spent much time and energy to try to ensure that we make it more difficult to put in place measures that determine the safe release of prisoners into the community.
Lord Ackner: My Lords, I wish to give the noble Baroness, who is sitting down, two references—
Baroness Blatch: My Lords, this is Report stage of this Bill. So far noble Lords have intervened as though it were the Committee stage.
Lord Ackner: My Lords, I always understood that even on Report stage one can ask a question before the Minister sits down. I am not making a speech; I am asking a question in regard to the questions which I raised earlier. In view of her answer I was merely asking her to make sure that those advising her look at the Attorney-General's reference no. 34 of 1992 where the noble and learned Lord, Lord Taylor, then the Lord Chief Justice, substituted a life sentence at the suit of the Attorney-General, taking the view that the sentence was unduly lenient having regard to the danger which the offender posed.
The other case is that of the Attorney-General's reference no. 6 of 1993 where again the noble and learned Lord, Lord Taylor, said,
"Where the court is considering whether the sentence was wrong in principle in that it should have been a life sentence for the protection of the public, in our judgment the paramount consideration must be the risk to the public".
Baroness Blatch: My Lords, I rise with some diffidence to take issue with the noble and learned Lord because I respect enormously his experience in these matters. However, he is missing the point. This matter is not about lenient sentences and it is not about appealing against lenient sentences. There is a concern in the mind of the public, and in particular in the mind of those people who have been at the receiving end of violence in the community. This measure is a response to those who repeatedly commit violent or sexual offences. The mechanism that has been put in place is not to give someone a longer period in custody but to ensure that a prisoner will not be released at the end of the tariff period until there has been a proper assessment of the risk he poses and it is considered safe to send him back into the community. If noble Lords who have supported these amendments get their way we shall again impose determinate sentences whereby at the automatic release point prison officers and probation officers knowingly release people back into the community who are repeat violent offenders without having conducted any proper risk assessment at all. The situation is even worse than that—
Earl Russell: My Lords—
Baroness Blatch: My Lords, I hope the noble Earl will allow me to finish this point. The situation is even
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worse than that because if most noble Lords who have spoken had their way we would retain the provisions of the 1991 Act and there would be automatic release at the halfway or two-thirds point of a sentence. Repeat offenders would be sent back out into the community at that point. My noble friend shakes his head but that would be the consequence of all the amendments that my noble friend is supporting in this Bill.
Earl Russell: My Lords, is the noble Baroness telling us that she wishes to extend the process by which the—
Noble Lords: Order!
Baroness Blatch: My Lords, I have said that this is the Report stage of the Bill. No one must intervene unless he asks leave of the House. He may intervene only with the leave of the House and usually only in the form of a question.
Earl Russell: My Lords, I understood the noble Baroness had sat down to give way to me. May I ask a question before the noble Baroness sits down?
Noble Lords: Yes!
Earl Russell: My Lords, is the noble Baroness telling us that she is setting out a process by which the executive takes more and more control from the judiciary as regards the length of time people spend in prison, because if so not all of us find that reassuring?
Baroness Blatch: No, my Lords, I am certainly not. That is an absurd interpretation of what I have been saying and it is certainly an absurd interpretation of what is in the Bill. I have explained why in Clause 2 we are making a mandatory life sentence available to the courts with the caveat, of course, of exceptional circumstances. That is to ensure that those who repeat violent or sexual offences should be subject to proper release arrangements. The period to be spent in custody will be a matter for the courts. The courts determine guilt or innocence and the tariff period. The Parole Board will determine the release arrangements and set the conditions for recall following release arrangements. The Probation Service will manage the supervision period. There is no way in which one is removing the rights of the court. It is certainly not a case of the executive taking over. I am not sure that the noble and learned Lord will welcome this, but I pray in aid the noble and learned Lord the Lord Chief Justice on this point who said at the outset this afternoon that it is the right of Parliament, not the executive, to set the framework for the courts. The courts operate within the framework set down by Parliament.
I now discuss reviewable sentences and the Butler Report. As was made clear at Committee stage of this Bill, the Butler Report's proposals on reviewable sentences added nothing to discretionary life sentences which can currently be imposed for serious offences whether or not the offender has previous convictions. Its defect was that no part of the proposals provided for punishment and deterrence. Indeed, an amendment is tabled for later this evening which will bring us to that point; namely,

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reviewable sentences and releasing people who are safe without considering punishment and deterrence. As for reviewable sentences being a more accurate label than life sentences, that is not the case, for reasons given by the noble and learned Lord, Lord Bingham. The noble and learned Lord said that under either sentence there is a lifelong liability to prison.
The noble Lord, Lord Rodgers referred to statistics on prisons. I refer him to the Official Report col. WA14 of 10th March 1997 where I gave a Written Answer to a question from the noble Lord, Lord McIntosh, about the impact of this Bill on prison places. Some 8,900 places will be in place by the year 2000. That takes account of the natural growth in the prison population irrespective of this Bill. The noble Lord, Lord Rodgers, referred also to the use of police cells. Every effort is being made to avoid the use of police cells. We are hopeful that we shall be successful in that. However, as I have openly admitted before in this debate and to the noble Lord, Lord Harris of Greenwich, there is a tension in that regard.
I return to the tariff point. The tariff is the minimum period to be served for retribution and deterrence. That is what has to be decided by the court. It should be broadly the same as the determinate sentence which the court would previously have imposed. In setting the tariff the court should apply the provisions of Clause 23 of the Bill. Once the tariff has been served, the question of whether to release the offender will be determined by the Parole Board and the normal early release arrangements do not apply.
It is perhaps worth pausing for a moment to reflect on what Clause 2 would provide if all the amendments of the noble Lord, Lord Rodgers of Quarry Bank, were accepted. I put all three together. A court would then be required to impose the automatic life sentence unless, in the interests of justice, it was of the opinion that there were specific circumstances relating either to the offences or the offender which would make the imposition of a life sentence unjust in all the circumstances. I hope that on reflection even the noble Lord himself would agree that such a formula is neither elegant nor a satisfactory way of providing guidance to the courts on parliamentary intentions.
6.30 p.m.
Lord Rodgers of Quarry Bank: My Lords, we will have to wait until 1st May to discover what the man on the top of the bus really believes, but I have greater respect for him than has the Minister.
If the Motion before the House, but not your Lordships' House, was that courts should impose a life sentence unless, in the interests of justice, there are specific circumstances which justify them not doing so, I believe that the man on the top of the bus would be in favour of it in the interests of justice. Were circumstances to be different, I would be very happy to debate that elsewhere.
If any attempt had been made to explain this clause and indeed this Bill to the public, and if the alternatives which we have ventilated in your Lordships' House had been placed in juxtaposition, I believe that the man in the street
816
would have understood something other than the policies embodied in this Bill and in a great deal more of the legislation which we have had from Her Majesty's Government. I believe, and this has been the view of successive Home Secretaries except the present one, that it is important to present to the public an alternative view to that which the public may in the first instant feel to be the case. Leadership of the public on these issues is important. It is not the duty of governments to follow. However, I do not believe that we can pursue these matters a great deal further.
The noble and learned Lord, Lord Bingham of Cornhill, said that this would be an obvious and very modest addition to the Bill. I am prepared to accept that it is obvious and, in that case, I hope that the Minister will accept the amendment. I am prepared to believe that it is very modest, too. However, it is far too important an issue to leave undecided in your Lordships' House. Earlier this day we said that we believed that legislation—in particular, this Bill—should be properly scrutinised and that your Lordships could not abdicate that responsibility. Equally, we believe that there should be no unreasonable delay. To debate the amendments further might result in that, but I ask leave to test the opinion of the House.
6.33 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 138.

Division No. 3

CONTENTS

Ackner, L.

Kinnoull, E.

Addington, L.

Kirkwood, L.

Ampthill, L.

Kitchener, E.

Baldwin of Bewdley, E.

Lester of Herne Hill, L.

Belstead, L.

Lockwood, B.

Bingham of Comhill, L.

Longford, E.

Blease, L.

Lowry, L.

Bledisloe, V.

Mackie of Benshie, L.

Bridge of Harwich, L.

McNair, L.

Broadbridge, L.

McNally, L.

Byron, L.

Mar and Kellie, E. [Teller.]

Calverley, L.

Masham of Ilton, B.

Carlisle, E.

Monson, L.

Carlisle of Bucklow, L.

Norton, L.

Chichester, Bp.

Ogmore, L.

Clancarty, E.

Oliver of Aylmerton, L.

Cocks of Hartcliffe, L.

Onslow, E.

Colville of Culross, V.

Palmer, L.

Craigavon, V.

Park of Monmouth, B.

Dahrendorf, L.

Rea, L.

Darcy (de Knayth), B.

Redesdale, L.

Ezra, L.

Robson of Kiddington, B.

Geraint, L.

Rochester, L.

Grey, E.

Rodgers of Quarry Bank, L.

Hacking, L.

Russell, E. [Teller.]

Hampton, L.

Saltoun of Abernethy, Ly.

Hamwee, B.

Sefton of Garston, L.

Harris of Greenwich, L.

Shannon, E.

Harris of High Cross, L.

Simon, V.

Harrowby, E.

Swinfen, L.

Hilton of Eggardon, B.

Taylor of Gosforth, L.

Hindlip, L.

Thomas of Gresford, L.

Hutchinson of Lullington, L.

Thomas of Walliswood, B.

Kilbracken, L.

Thurso, V.

817

Tope, L.

Warnock, B.

Tordoff, L.

Weatherill, L.

Varley, L.

Wigoder, L.

Walpole, L.

Williams of Crosby, B.

NOT-CONTENTS

Addison, V.

Jenkin of Roding, L.

Alexander of Tunis, E.

Kenilworth, L.

Allenby of Megiddo, V.

Keyes, L.

Anelay of St. Johns, B.

Kimball, L.

Archer of Weston-Super-Mare, L.

Kintore, E.

Astor of Hever, L.

Knutsford, V.

Attlee, E.

Laing of Dunphail, L.

Balfour, E.

Lindsay, E.

Banbury of Southam, L.

Lindsey and Abingdon, E.

Barber of Tewkesbury, L.

Long, V.

Beaverbrook, L.

Lucas, L.

Belhaven and Stenton, L.

Lucas of Chilworth, L.

Berners, B.

Luke, L.

Bethell, L.

Lyell, L.

Birdwood, L.

McConnell, L.

Blatch, B.

Mackay of Ardbrecknish, L.

Blyth, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Bowness, L.

Brabazon of Tara, L.

Mackay of Drumadoon, L.

Bradford, E.

Macleod of Borve, B.

Brentford, V.

Marlesford, L.

Bridgeman, V.

Massereene and Ferrard, V.

Bridges, L.

Merrivale, L.

Brookeborough, V.

Middleton, L.

Brougham and Vaux, L.

Miller of Hendon, B.

Bruntisfield, L.

Milverton, L.

Burnham, L.

Monk Bretton, L.

Byford, B.

Montgomery of Alamein, V.

Cadman, L.

Mountevans, L.

Campbell of Alloway, L.

Mowbray and Stourton, L.

Campbell of Croy, L.

Munster, E.

Camegy of Lour, B.

Murton of Lindisfame, L.

Carnock, L.

Napier and Ettrick, L.

Chadlington, L.

Northesk, E.

Chalker of Wallasey, B.

O'Cathain, B.

Charteris of Amisfield, L.

Perry of Southwark, B.

Chesham, L. [Teller.]

Pilkington of Oxenford, L.

Clanwilliam, E.

Platt of Writtle, B.

Clark of Kempston, L.

Rankeillour, L.

Cochrane of Cults, L.

Reay, L.

Courtown, E.

Renton, L.

Craigmyle, L.

Renwick, L.

Cranborne, V. [Lord Privy Seal.]

Romney, E.

Cross, V.

Rotherwick, L.

Cumberlege, B.

Rowallan, L.

Dean of Harptree, L.

Saatchi, L.

Denbigh, E.

Saint Oswald, L.

Denham, L.

Sandford, L.

Denton of Wakefield, B.

Seccombe, B.

Donegall, M.

Selsdon, L.

Downshire, M.

Sharples, B.

Erroll, E.

Shaw of Northstead, L.

Fairfax of Cameron, L.

Skelmersdale, L.

Ferrers, E.

Skidelsky, L.

Fraser of Carmyllie, L.

Soulsby of Swaffham Prior, L.

Geddes, L.

Stevens of Ludgate, L.

Gisborough, L.

Stewartby, L.

Goschen, V.

Strange, B.

Gray, L.

Strathclyde, L. [Teller.]

Gray of Contin, L.

Strathmore and Kinghorne, E.

Haig, E.

Swinton, E.

Harmsworth, L.

Teviot, L.

Harris of Peckham, L.

Teynham, L.

Hemphill, L.

Thomas of Gwydir, L.

Henley, L.

Trumpington, B.

Holderness, L.

Ullswater, V.

HolmPatrick, L.

Vivian, L.

Inglewood, L.

Wharton, B.

Jeffreys, L.

Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.
6.41 p.m.
[Amendments Nos. 3 and 4 not moved.]
Lord Hacking Lord Hacking moved Amendment No. 5:
Page 2, line 10, at end insert—
("(4A) Where a person is convicted of an offence which falls within subsection (1) above and the conditions mentioned in section 37(2) of the Mental Health Act 1983 are satisfied, the court may if it sees fit conclude that the satisfaction of those conditions constitutes exceptional circumstances which justify it not imposing a life sentence.").
The noble Lord said: My Lords, in moving the amendment, I shall address your Lordships on Amendments Nos. 11 and 12. I shall also address consequential amendments, Amendments Nos. 132, 133 and 134.
When I moved this amendment and spoke to the other amendments in Committee, I described the amendments as being very important. Therefore I was pleased when the Minister replied that she was at least able on that point to come to an agreement with me. In her opening words, she said,
"This is an issue that we take very seriously indeed. It is an extremely important subject".—[Official Report, 13/2/97; col. 416.]
The fundamental issue that I now ask your Lordships to consider on Report is a disturbance of the principle that has been in English penal law for many years; that when a person is suffering from an identifiable psychiatric illness he is not punished but treated. In Committee I referred noble Lords to the Mental Health Act 1983. In that Act, and under previous mental health Acts, a clear position has been set out. Under the Mental Health Act 1983 there are clear procedures when a person is suffering from an identifiable psychiatric illness (based, in the court proceedings, on the evidence of two medical practitioners). Instead of sending that person to prison, he is made subject to a hospital order. When there is concern over the public safety, the court at the same time can apply restriction orders. That is under Section 41 of the Mental Health Act 1983. There are further powers resting with the Secretary of State to make sure that the persons are not released when they are under a hospital order of indeterminate length; and under a restriction order of indeterminate length. These powers resting with the Secretary of State are that the person is not released from prison so long as there is concern relating to the safety of the public.
My noble friend having replied, I said that I should like to consider with care the speeches made in Committee and the speech of my noble friend. In reply, my noble friend said that,
"The amendments would have the effect of upsetting the balance that the Bill provides between the need to ensure that the public are protected from repeat offending and the need to enable effective medical treatment to be given to mentally disordered offenders".

819
With reference to the first of my amendments—it is in identical form to the amendment before the Committee—my noble friend said:
"The life sentence is needed to protect the public from further repetition of the most serious sexual and violent offences and to ensure that people who have a history of committing such offences repeatedly, for whatever reason, receive supervision for life". [Official Report, 13/2/97; col. 416.]
I thought the best way to approach the advice that my noble friend gave in Committee was to seek assistance from those outside your Lordships' House who have much more experience in these matters than I do. I therefore posed the question to the Penal Affairs Consortium: would not the public, as my noble friend suggested, be sufficiently protected under existing legislation, and, most specifically, under the provisions of the Mental Health Act? This is the Act to which I have drawn your Lordships' attention. If I may, I shall read the advice that I received:
"most offenders given hospital orders combined with restriction orders are detained in hospital for longer than they would otherwise have spent in prison. A restriction order can be made in cases where the court considers it necessary to protect the public from serious harm. Most restriction orders are made without limit of time. They subject the offender to indeterminate detention; decisions on release are made by a Mental Health Review Tribunal; and the patient is discharged under conditions which entail permanent liability to recall to hospital".
I thought that further advice should be sought. I sought it from the Royal College of Psychiatrists and the Law Society which have a Mental Health and Disability Sub-committee. I shall read the advice that I received from that joint sub-committee of the Law Society and the Royal College of Psychiatrists. I believe that it is important. It is as follows:
"While the Committee agrees that the public needs protection against persistent offenders, it believes that this will not be achieved by sending mentally disordered offenders to prison … Indeed, imprisonment is likely to have the opposite effect, since the mental health of the offender is likely to deteriorate while in prison, before being released untreated and unsupported into the community … Those mentally disordered prisoners who are eventually released are more likely to continue to pose a risk to the public, since their disorder may well have remained untreated during their imprisonment and it will prove far more difficult to ensure continuity of effective care from prison to the community, than from hospital to the community".
One of my concerns in the truncated proceedings that your Lordships are going through is that noble Lords have not taken the benefit of listening sufficiently to the advice from those who are very close to this matter; namely, members of the judiciary. Another of my concerns in taking a truncated course on this Bill is that your Lordships are not seeking to benefit sufficiently from a great deal of advice that has been received from persons who have immense experience in dealing with the issues arising from the Bill. I refer, for example, to the Royal College of Psychiatrists on those who are mentally disordered. It seems to me that your Lordships should equally well note the advice received in some excellent briefs. It has not been a question of round-robin letters being sent to us but of careful and considered advice received from a number of the concerned bodies. I know that the noble Lord, Lord McIntosh, has also received such advice.
820
Perhaps I could clear up one matter. My noble friend was able to say that a person suffering from a mental disorder would not fall under an exceptional circumstance within the meaning of the Bill. It therefore occurred to me after the amendment was passed by your Lordships' House resulting in Clause 1 of the Bill to wonder whether the position would in any way be changed. Unless any noble Lord takes a different view, it is my submission that the position is not changed and therefore it is as necessary at Report stage as it was at Committee that this amendment be agreed to.
My noble friend has shown her sympathy to this amendment. I hope that, having heard the detailed argument in Committee and having had the opportunity to read it, she will realise that it is fundamentally wrong for someone to be sent to prison who is found, on the evidence of two doctors given before the court, to have an identifiable psychiatric illness. Whatever the new provisions 45A and 45B of the Mental Health Act 1983, the problem is not solved. In the first place, the accused is sent to prison and in the second place the hospital direction, as it is called under the proposed new Section 45A, can only be used as long as there is a reasonable prospect of treatment providing benefit. That is not the case with certain psychiatric illnesses and therefore the only consequence of the Bill is that Section 45A will not keep in hospital those who have a psychiatric illness. Notwithstanding their psychiatric illness, they will be moved back to prison. We already have evidence that that will make matters worse rather than better.
One then looks to the release provisions. Although my noble friend advances the benefits of a supervision order after the period of imprisonment under a life sentence, it is nothing like as effective or as good as the existing and well-tried provisions of the Mental Health Act 1983. I beg to move.
Lord Renton: My Lords, my noble friend Lord Hacking has raised an extremely important matter and we must get it right. I hope that my noble friend Lady Blatch will agree, for the reasons given by my noble friend, that we should accept these amendments. Before this debate she kindly drew my attention to Clause 45, but there are two problems there. The first is that it applies only in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law.
What is worrying is that the sentences under Clauses 2, 3 and 4 of the Bill are to be fixed by law. Under Clause 2 it is to be a life sentence; under Clause 3 it is to be at least seven years' imprisonment, which comes near to being fixed by law; under Clause 4 it is at least three years' imprisonment, which seems to me to be fixed by law. Under Clause 2 there is no doubt whatever about the position. It is arguable that under Clauses 3 and 4 there is still a discretion on the part of the court, but it is a very limited discretion and to an extent fixed by law.

821
Be that as it may, my noble friend the Minister has invited my attention to a provision on page 32 in subsection (10) of new Section 45A of the Mental Health Act 1983 which states that:
"The Secretary of State may by order provide that this section shall have effect as if the reference in subsection (2) above to psychopathic disorder included a reference to a mental disorder of such other description as may be specified …"
That is very good; that gives the opportunity of applying the provisions of Clause 45 to, for example, mental handicap, people suffering from hallucinations, people who have no control over their willpower or perhaps even over their actions.
We are dealing here not with first offenders but, as my noble friend the Minister said, with people who have committed third or further offences. All the same, we must be very careful. I am worried about people suffering from mental impairment, mental handicap or, as it is euphemistically called, learning disability, and people suffering from other kinds of mental illness—I mentioned hallucinations, for example—because nothing can be done for such people in prison, where they will merely be the sport of other prisoners. They must be put in hospitals, for life if necessary. Mental illness is sometimes curable but it is a well-established medical proposition that no form of mental handicap is curable. I have some knowledge of this because I have a daughter who is severely handicapped and I am a past president of MENCAP.
We must get this right. I hope that my noble friend will be able to assure us that, soon after the Bill comes into force, the Government will use their power to extend the application of Clause 45 to other kinds of mental disorder. However, because Clause 45 applies only to offences the sentence for which is not fixed by law, we must be very careful, especially with regard to Clause 2 under which the court has no discretion and the sentence has to be imprisonment for life.
Lord Swinfen: My Lords, I support this group of amendments so ably moved by my noble friend Lord Hacking. I also support the points mentioned by my noble friend Lord Renton. As he said, there are no facilities in prison for the treatment of those incarcerated who have a mental disorder. If they are the subject of orders under the Mental Health Act 1983 they can be treated in a secure hospital where their condition is likely to improve, as a result of which they are likely, upon final release, to be of little or no danger to the public. However, if they spend their time in gaol, their condition is likely to deteriorate. It certainly will not improve and they are likely, when they finally come out, to be of similar if not greater danger to the public.
Speaking about mentally disordered offenders, sentencing and discharge arrangements, the Royal College of Psychiatrists, in a response to the Home Office and Department of Health discussion paper in 1996, said about mentally disturbed offenders being transferred back from hospital to gaol:
"Many clinicians will be unhappy about transferring such individuals back to prison because of the risks to mental health which follow such a transfer … It makes no clinical sense for
822
prisoner-patients to be transferred back to prison prior to release into the community; this will be entirely detrimental to their rehabilitation".
One of the reasons for gaoling offenders is to rehabilitate them. Therefore, I feel that we should take every step with mentally disordered offenders to ensure that rehabilitation takes place and is not destroyed by the way in which they are incarcerated.
7 p.m.
Lord Pearson of Rannoch: My Lords, I too should like to support the amendments. I do so as president of the National Society for Mentally Handicapped People in Residential Care and as the father of a mentally handicapped daughter. Therefore, I speak more on behalf of the 156,000 mentally handicapped people in this country than for the people who suffer from the other forms of mental disorder covered by the amendment.
I say to my noble friend on the Front Bench that the proposals in the Bill once again go directly against stated government policy. The Home Office/Department of Health guidance accompanying Home Office Circular 12/95 states that:
"those suffering from mental disorder who require specialist medical treatment or social support should receive it from the health and social services".
Again it states:
"Detention in prison is likely to be damaging to the mental health of a mentally disordered person, and the Prison Service is not equipped to provide treatment equivalent to that available in hospital".
Quite so. I have to say to my noble friend that the Government now appear less concerned with providing appropriate care and treatment but instead seek to hold all mentally disordered offenders fully legally culpable and responsible for their actions by imposing mandatory sentences.
The combined effect of Clause 2(2) and Schedule 4 paragraph 12(1) as drafted means that the court has no discretion to consider whether detention and treatment under the Mental Health Act, with or without restrictions, may be a more appropriate disposal. The court must impose a life sentence unless there are "exceptional circumstances". The definition of mental disorder under the Mental Health Act clearly includes mental illness, mental impairment and severe mental impairment, which I take to mean mentally handicapped people.
I have to agree with the comment of the Law Society and the Royal College of Psychiatrists referred to by my noble friend Lord Hacking when he so ably moved the amendment that the imposition of a punitive element into the treatment of people with learning disabilities or mental handicap is morally repugnant and contrary to the values of a humane society.
As other noble Lords mentioned, the Government have argued that some of those concerns will be met by the introduction of the new hospital direction set out in Clause 45 of the Bill, which empowers the court, when imposing a prison sentence on an offender suffering from psychopathic disorder, to direct that the offender should first be detained in hospital. But as the Bill is

823
drafted, the hospital direction will apply only to people with psychopathic disorder, with the effect that only those offenders for whom the benefits of treatment are doubtful will get the chance to be treated. Other offenders with mental illness or learning disabilities will automatically be sentenced to imprisonment.
Further to what my noble friend Lord Renton so wisely said about the limitations of Section 45A, I refer my noble friend on the Front Bench to Section 45A(2)(c), where it is a condition of the offender being sent to hospital that the treatment:
"is likely to alleviate or prevent a deterioration of his condition".
As my noble friend Lord Renton said, that cannot possibly apply to the mentally handicapped, who are, by definition, incurable.
Summing up, the Government's proposals are certain to lead to a huge increase in the number of mentally disordered offenders, inappropriately placed in prison, making enormous demands on the Prison Service. As I mentioned at Committee stage, that very unfortunate situation is certain to be made still worse by the Government's community care policy, under which it is evicting mentally handicapped people from the long-stay institutions and forcing them to live, sometimes inappropriately, in an ordinary house in an ordinary street. Indeed, there are now only some 11,000 mentally handicapped people left in long-stay institutions, where they are waiting to be evicted and now, as this Bill is drafted, waiting to be sent to prison.
Lord Annaly: My Lords, I rise to support the amendment of my noble friend Lord Hacking. I speak with particular reference to the deaf. I have an interest to declare, in that I have a younger sister in her thirties who is totally deaf. The problem, whether it was deafness, brain damage or whatever, was not established until she was 10 years of age and went to various experts. It turned out to be deafness. On the strength of that, before he died my father and my stepmother started a charity, of which I am now a trustee. It is called SIGN and campaigns for deaf people and people with mental health problems. I am certainly no expert on this subject but I have had a little to do with it. We have started a number of small residential units in Manchester and London—at Balham, where we have taken over an old church. The ground floor houses a psychiatric unit, which is literally in the street. That all came out of Springfield Hospital. Upstairs is residential. People who have had problems perhaps go into the psychiatric unit on a day basis or a residential basis but there are long-term residents upstairs. We are also involved with deaf clubs.
That leads me to ask the Minister a question. I do not know whether she will be able to answer it. Understandably, people who are totally deaf have behavioural difficulties. They become very frustrated and do things out of sheer frustration. One might say that that is not a mental health problem but perhaps we can all relate to it. Through frustration, those people may end up doing something which would be caught by the present Bill. If somebody fell into that category, can the Minister say whether they would be sent to prison
824
for committing such an offence? I should sincerely hope not, because it would do no good. There would be no facilities for dealing with the deaf, who need specific treatment, medication and the relevant psychiatrists to help them. So I am greatly concerned that they might fall into that particular sphere.
Often, deaf people who have never heard a word, like my sister—and there must be many thousands of others—cannot speak either. They rely totally on sign language. In the deaf world there are two schools of thought: whether to lip read or whether to use sign language. But I know that there is a great shortage of people who are qualified at the top level to sign. When somebody who is totally deaf gets into difficulties and the police are involved, they have to find a qualified sign language expert to communicate with the deaf person, who is probably distressed, to find out what the problem is. There is a great shortage of those experts, which is just another problem. Perhaps the Minister could say whether deaf people come within the amendment.
Baroness Blatch: My Lords, I hope that I shall be able to address many of the anxieties expressed by noble Lords and my noble friends. The amendments would have the effect of upsetting the balance which the Bill provides between the need to ensure that the public are protected from repeat offending and the need to enable effective medical treatment to be given to mentally disordered offenders. I repeat to my noble friend: it is an extremely important issue and it is essential that we get it right. The provisions in the Bill are not inconsistent with our concern for such people.
The first effect of the amendments would be to enable the courts to regard evidence of mental disorder as a reason for not applying the automatic life sentence provided by Clause 2. But again the life sentence is needed to protect the public from further repetition of the most serious sexual and violent offences; to ensure that people who have a history of committing such offences, for whatever reason, receive supervision for life. A disposal under the mental health legislation cannot achieve that. It would therefore frustrate the purpose of the mandatory sentence in protecting the public if evidence of a mental disorder could be regarded as an exceptional circumstance, thus enabling the life sentence to be avoided.
My noble friend may be concerned to ensure that mentally disordered offenders who come to be sentenced under the provision can receive treatment for their disorder. That can be achieved by way of the hospital direction power at Clause 45. Initially that will be available only for psychopathically disordered people, but there is a provision to extend its scope to all categories. Until that happens those people can be transferred to hospital by the Home Secretary if the doctors recommend it. My noble friend Lord Pearson of Rannoch was concerned about this point. If people fall outside that category, and before the extension powers are used, on advice from the medical professionals to the Home Secretary they can be removed to hospital.

825
Under Clauses 3 and 4 the courts need not apply the mandatory sentence if they think it inappropriate in the light of specific circumstances relating to the offender. The Bill also provides that they retain the power to make a hospital order as an alternative to the mandatory sentence. Paragraph 12(2) of Schedule 4 provides that the courts retain the power to make a hospital order as an alternative to the mandatory sentence. There is therefore no need for a mental disorder to be regarded as an exceptional circumstance if a hospital order appears to be the most appropriate sentence.
My noble friend Lord Renton thought that the test applied would be "exceptional circumstances" in the way we have been discussing hitherto. That is not the case. If the courts believe that the mandatory sentence should be set aside for these purposes, they have the power to do that and substitute the hospital order.
The final effect of my noble friend's amendment would be to enable the courts to substitute a guardianship order under the Mental Health Act 1983 for the mandatory sentences provided by Clauses 2 to 4. My noble friend did not speak to this amendment, but I am assuming that they are all in the same group. The guardianship order is a provision intended to ensure that vulnerable people receive care and support. It is in no way a custodial disposal nor one which provides any sanction over repeated criminal behaviour. A guardian order would be entirely inadequate to provide the public with protection from further repetition of the serious and distressing crimes with which the mandatory sentences are intended to deal. I say again that some psychopathic people are extremely dangerous and a guardianship order would not be appropriate.
My noble friend Lord Hacking referred to disturbing the principle that when a person is suffering from an identifiable psychiatric illness they should not be punished; they should be treated. Perhaps I may pose the following question to my noble friend. What happens if that person is a repeat violent offender who has either completed treatment or is untreatable, or the medical profession claims that treatment is having no effect whatever? Should that person, who may be dangerous, be released into the community?
If my noble friend is suggesting that hospital beds should be kept in cases where the medical profession says that a person is untreatable, cannot be treated further or that treatment is having no effect, he is suggesting that hospitals be turned into secure units for mentally disordered offenders. I have no doubt that my noble friend will respond to that. What is happening at the moment is that people are being released into the community who are dangerous; they are reoffending, and the Bill is attempting to answer that point. Under my noble friend's amendment, where the medical profession itself believes that the person cannot be treated further, he would be released back into the public domain if we did not have the provisions in Clause 2 and therefore the public would not be safe.
My noble friend referred to the fact that under a hospital direction the mentally disordered offender would be returned to prison. That will only be the case on the advice of the responsible medical officer that the
826
offender no longer needs to remain in hospital. Again, my noble friend misunderstands the purpose of the provision. He was suggesting that prison sentences for such people should involve only treatment and not punishment and deterrent. But some people who fall into that category are determined by the courts to be culpable for the crimes that they commit. If they are not culpable for the crimes that they commit, "exceptional circumstances" can be invoked by the courts.
On another point, my noble friend Lord Hacking said that it was fundamentally wrong for a mentally ill person to be sent to prison at all. Except for sentences passed under Clause 2, the court will retain the power and the option of making a hospital order under the Mental Health Act—a point I made for the benefit of my noble friend Lord Renton. Sentencing under Clause 2 is for repeat violent offences from which the public must be protected by supervision for life—it is supervision for life which is important in those circumstances—which cannot be provided by a Mental Health Act disposal.
The options under Clause 2 are that the courts must, for repeat offences, pass a life sentence. They may add a hospital direction under Clause 45 initially for psychopathically disordered offenders but there is the power to extend that. Even if it were not extended, the courts may recommend that the Home Secretary transfer to hospital under Section 47 of the Mental Health 1983. Only if the court accepts other exceptional circumstances for not making a life sentence can it make a hospital order under Section 37 of the Mental Health Act 1983.
Of itself, mental disorder is not an exceptional circumstance. It can be; but it is not of itself. The options under Clauses 3 and 4 are that the court may make a hospital order under Section 37 of the Mental Health Act 1983; it may pass the mandatory sentence and add a hospital direction under Clause 45; it may decide that mental disorder constitutes a specific circumstance which would make it inappropriate to pass a mandatory sentence; it may pass a mandatory sentence to recommend that the Home Secretary transfer to hospital again under Section 47 of the Mental Health Act 1983; or it may simply pass a mandatory prison sentence. Again, it would depend on the court's determination of the culpability of the person.
One can only very much sympathise with the point made by my noble friend Lord Annaly about his sister who is profoundly deaf. However, someone who is profoundly deaf is rather different from the mentally disordered offenders about whom we are talking and to whom these amendments apply. My noble friend referred to behavioural difficulties. We are talking about people committing serious violent or sexual offences. Being profoundly deaf would not necessarily be a reason for exonerating someone in those circumstances. It would still be important for the courts to deal with that case. However, if, as my noble friend went on to say. there were medical needs to be met for that person, the options for the courts under Clauses 2, 3 and 4 would apply and hospital treatment would be afforded.

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My noble friend Lord Pearson of Rannoch referred to proposals and said that they would lead to an increase in mentally disordered offenders being sent to prison. Given the flexibility of the provisions under the Bill as proposed, there is no reason why that should be so. The hospital order remains available for all offenders except those receiving a mandatory life sentence. Those sentenced under Clause 2, which is the mandatory life provision, can be sent to hospital under a hospital direction or, before it becomes available for categories other than psychopathic disorders, they can be transferred to hospital on the advice of the courts or the medical profession by warrant of the Home Secretary of the day.
I believe that what we have here is certainly more flexibility than we have in the courts at the moment. The provision prevents anyone being released into the community who is a repeat violent and/or sexual offender without having a proper assessment of risk. It is important that it ensures that the medical needs, whether they are mental health needs or physical needs, are properly met by the medical profession.
Lord Pearson of Rannoch: My Lords, before my noble friend sits down, I have to say to her that she has addressed her remarks largely to psychopaths and mentally ill offenders. Perhaps she will briefly address herself to new Section 45A(2). It is absolutely clear that that cannot apply to mentally handicapped offenders. Mentally handicapped people are not suffering from a psychopathic disorder. The subsection states:
"that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and"—
the word "and" is important—
"that such treatment is likely to alleviate or prevent a deterioration of his condition".
None of that can apply to a mentally handicapped offender.
Baroness Blatch: My Lords, the point I have made to my noble friend is that under Clause 45 we have a power to extend to other categories; and it could be to the category that my noble friend is referring to. Under Clauses 3 and 4 we have said that the courts can set aside mandatory sentences and substitute a person going to hospital by using the Mental Health Act. If a hospital direction is not made or extended to other categories, it is also possible for the medical profession and/or the courts to recommend to the Home Secretary that a hospital provision is needed.
Lord Hacking: My Lords, before my noble friend sits down, I wonder whether she can help the House on two matters arising out of what she has just told us. In the light of the answer that she has just given to my noble friend, is she able to give an undertaking relating to the proposed Section 45A(10) as to when the Secretary of State will bring in an order to extend the reference under subsection (2) beyond psychopathic disorder? It would certainly enormously help me if she
828
could give an answer to that. I have another subsidiary question but perhaps it would be easier if my noble friend answered that one first.
Baroness Blatch: My Lords, with the leave of the House, I am happy to come back to my noble friend. I cannot give him a specific date by which that power would be extended. What I can say to him is that in the meantime we would cover the concerns that my noble friend has, in that the courts could recommend to my right honourable friend that he directs to hospital in the absence of this extended power rather than the courts themselves using the hospital direction. Either way, if there were medical needs to be met, whether mental or physical, in the absence of the power being extended beyond those who have psychopathic disorders, it would be for the courts and/or the medical profession to recommend that the Home Secretary of the day should use his powers of direction.
Lord Hacking: My Lords, my noble friend treats the House with her normal courtesy. I am grateful to her for answering that question before she sat down. Indeed, before she is too firmly in her seat, I have a second question which arises out of her remarks. This is an important question. I thought I heard my noble friend say that, in view of the amendment that your Lordships agreed to in Committee, which is now in Clause 1 of the Bill, those with mental illnesses would fall under the provision which says that the court shall have regard to the specific circumstances relating to the offender. If my noble friend was saying that, I should be grateful to know that before I reply.
Baroness Blatch: My Lords, I am not in a position to say what, given the discussions that are going on at the moment, the fate of Clauses 2, 3 and 4, which were Clauses 1, 2 and 3 at the Committee stage of the Bill, will be. Therefore, I am unable to tell my noble friend that. What I would like to do is make a general point as opposed to the specific point relating to Clauses 2, 3 and 4. It would be for the courts to determine the degree of culpability where the mental condition of a person may actually have a direct bearing. If culpability is determined by the courts, the sentence follows. But it may well be that the actual condition of the person has a direct bearing on culpability and it may well fall—but it would be a decision for the court—into the category of exceptional circumstances.
Lord Hacking: My Lords, this is a difficult moment in your Lordships' House. I am grateful to those noble Lords on this side of the House who have spoken in my favour. I greatly regret, looking towards the noble Lord, Lord McIntosh, that I have not had support from his side of the House, although I appreciate that the noble Lord, Lord Alderdice, is unavoidably absent. I greatly regret to say that it makes it a very frustrating experience for those in your Lordships' House who are still trying to improve the Bill and are still trying to obtain the support of the House in our efforts to improve the Bill that we no longer have support from the Labour Benches. I am very sorry, however these things are agreed among the usual channels, in which I have never taken part. that

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the result has been that we have lost the support of the noble Lord from the Labour Front Bench and also of Peers who sit on the Benches behind him.
However, if I were to call a Division now, I have no doubt that there are sufficient Peers who are still in the Library, the Dining Room and other parts of the House who have not come to listen to the argument and who would therefore be voting ignorant of the argument. I have no doubt—I do not say this in a disrespectful sense—that a whole lot of ignorant Peers, ignorant only in the sense that they have not listened to the argument, would vote against it. Faced with that it seems that I have no alternative but to withdraw the amendment.
Noble Lords: Hear, hear!
Lord Hacking: My Lords, I am hearing too many "Hear, hears" from the Government Front Bench, which does not encourage me to withdraw the amendment. If I hear any more "Hear, hears" from the Government Front Bench I shall divide the House. This is a very important matter. I believe that your Lordships have given the right advice to the Government. The Government are not following that advice. However, I reserve my right to come back on this matter at Third Reading.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
7.30 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 7:
Page 2, leave out lines 33 and 34.
The noble Baroness said: My Lords, in moving this amendment I am speaking also to Amendments Nos. 8, 8A and 9. The automatic life sentence in Clause 2 of the Bill may be imposed on an offender convicted for a second time of a serious violent or sexual offence, whether the first conviction was in England and Wales, Northern Ireland or Scotland. Clause 2 lists the relevant qualifying offences in each jurisdiction. Certain of the qualifying offences in Scotland and Northern Ireland are specified by reference to the corresponding statutory offence in England and Wales. However, a number of the Scottish offences are common law offences. Therefore, to avoid any possibility of debate about whether Clause 2, as drafted, has the intended effect in respect of Scottish qualifying offences, we have decided that each of the Scottish offences be listed separately in Clause 2 rather than specified by reference to the equivalent statutory offence in England and Wales. That is what Amendments Nos. 7, 8 and 9 do.
Amendment No. 8A makes a minor and technical change to the description in Clause 2(6)(d) of one of the Scottish qualifying offences. At present, it refers to,
"sodomy, or an attempt to commit sodomy, where one of the parties does not consent".
Amendment No. 8A substitutes for the words,
"one of the parties does",
the words,
830
"the complainer"—
which is a very Scottish phrase—
"that is to say, the person against whom the offence was committed, did".
It is intended to make the same change to the relevant provision in the Crime and Punishment (Scotland) Bill as a result of debate at Committee stage of that Bill. Amendment No. 8A keeps the provision in the Bill in line with the Scottish Bill. The change does not alter the meaning of the subsection, but it makes it easy to understand. These amendments are simply for clarification and they do not change the intention of the clause.
I raise an informative additional note. I may be asked why the Northern Ireland offences are not listed. That is unnecessary because the statutory definition of the Northern Ireland offences, which are specified by reference to England and Wales, is the same as the definition of England and Wales offences and covered by the same legislation. I beg to move.
Earl Russell: My Lords, perhaps I may ask for a little clarification of this amendment. I apologise for doing so, but I hoped that a noble and learned Lord in the Scottish discipline would be in the Chamber, but he is not. Am I right in thinking that these amendments arise from the speech made by the noble and learned Lord, Lord Hope of Craighead, at Second Reading of this Bill? I believe that he drew attention to Clause 2(6)(f), which is the offence of,
"lewd, libidinous or indecent behaviour or practices".
If my recollection is correct, he pointed out that that may be tried in Scotland either in the lower or the higher court. He suggested that it should be the effect of this Bill that the mandatory sentence should be clocked up only by an offence dealt with in the higher court. Have the Government accepted that suggestion; have they taken any further thought about it and what action do they propose to take?
Baroness Blatch: My Lords, there has been an extensive discussion between the noble and learned Lord, Lord Hope, and my noble and learned friend the Lord Advocate. He did have concerns, all of which have been met at this stage. These amendments refer to a different point from the one that the noble Earl referred to. That has also been discussed with the noble and learned Lord, Lord Hope. My understanding is that he has accepted the amendments.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 8, 8A and 9:
Page 2, line 35, at end insert—
("() attempted murder, incitement to commit murder or conspiracy to commit murder;
() rape or attempted rape;").
Page 2, line 37, leave out ('one of the panics does") and insert ("the complainer, that is to say, the person against whom the offence was committed, did").
Page 2, line 43, at end insert—
("() robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of the Firearms Act 1968;
() an offence under section 16 (possession of a firearm with intent to injure). section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of that Act;").
On Question, amendments agreed to.
The Earl of Courtown: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begins again not before twenty-five minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Birds (Registration Charges) Bill
Brought from the Commons; read a first time, and to be printed.

Merchant Shipping and Maritime Security Bill [H.L.]
COMMONS AMENDMENT
[The page and line refer to Bill (79) as first printed for the Commons]
7.35 p.m.
Viscount Goschen: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Viscount Goschen.)
On Question, Motion agreed to.
COMMONS AMENDMENT
1 Before Clause 17, insert the following new clause—
FINANCIAL ASSISTANCE FOR TRAINING
(" . In section 56 of the 1995 Act (financial assistance for training), after subsection (3) there is inserted—
"(4) In providing assistance in accordance with this section the Secretary of State shall have regard to the maintenance and development of the United Kingdom's merchant fleet and marine related business and for that purpose shall—

(a) keep under review all aspects of that fleet and business; and

(b) seek the advice of those who appear to him to have experience of that fleet or business.

(5) In this section, "marine related business" means any trade, business or other activity concerned with the manufacture of, or the provision of goods and services for, or the operation or use of, ships and includes maritime educational establishments, marine classification societies, marine equipment suppliers, marine surveyors, marine and naval architects, marine insurance companies, protection and indemnity clubs, providers of maritime financial or legal services, the operators of ports and harbours and shipbrokers.".").
Viscount Goschen: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. The Bill was amended in another
832
place to include a clause placing on the Secretary of State new obligations concerning the review of the merchant fleet and marine-related business. The clause also contains a new duty for the Secretary of State to consult when providing financial assistance for training to take into account the effect of that assistance in maintaining and developing the UK merchant fleet and marine-related business, as defined in the new clause.
In the spirit of co-operation which has pervaded the consideration of all stages of this important Bill, which I greatly welcome and for which I thank all those involved, the Government were content to accept this amendment in the other place. I hope that the House will feel able to agree with the Commons in their Amendment No. 1.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Viscount Goschen.)
Lord Clinton-Davis: My Lords, I thank the Minister and his colleagues in the other place for having accepted this amendment. It is important to enhance the training facilities in relation to our merchant fleet. They are issues which touch on questions of efficiency, safety and the environment. As regards the Bill, I believe that although it would have been improved if we had had differential fines as between masters and ship owners—an omission which I believe might have been cured, but never mind—the Bill is a valuable one. The Minister is to be congratulated on having taken it through with a very receptive mind. Throughout our deliberations he was prepared to consider proposals put forward by this side of the House. I believe that the Bill emerges from its consideration in both Houses in a very much improved state. For that the Minister has to be congratulated.
Perhaps I may say, as I did somewhat flippantly at Question Time today, that I value the Minister's style, co-operation and courtesy. As one who has had quite a lot of experience in the field of merchant shipping, I believe that the Minister has done an excellent job. He has not been able to do all the things that I know in his heart he would have wanted to do for the merchant fleet, because sometimes that is in the hands of the Treasury. However, I know that he has been approachable. The industry has a view of him which is wholly constructive. I hope only that his successor in a few weeks' time will prove to be as diligent.
Viscount Goschen: My Lords, I thank the noble Lord, Lord Clinton-Davis, for his very kind words. I am especially honoured, in view of the major contribution which the noble Lord himself played in the consideration of the Bill in your Lordships' House. I believe that the Bill has benefited from detailed consideration in both Houses. I agree with the noble Lord that training is of vital importance. It has been a very high priority indeed for the Government and it will continue to be so. Again, I thank the noble Lord for his very generous compliments.
On Question, Motion agreed to.
COMMONS AMENDMENT
2 Clause 30, page 24, leave out lines 14 to 17.
Viscount Goschen: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2, which removes the privilege amendment.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Viscount Goschen.)
On Question, Motion agreed to.

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

Local Government and Rating Bill
Report received.
Schedule 1 [Relief from non-domestic rates for general stores etc. in rural settlements: England and Wales]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 1:
Page 19, line 17, at end insert ("or—
(ii) to have had a population of not more than 3,100 on the last 31st December before the beginning of the chargeable financial year in question and to have had a population of not more than 3,000 on the last 31st December before the beginning of the year immediately preceding the chargeable financial year in question,").
The noble Baroness said: My Lords, Amendment No. 1 is an attempt to meet comments made by the Minister in Grand Committee. At that stage my noble friend Lord Beaumont of Whitley and I raised the need for stability. Perhaps I may explain. Small shopkeepers who will benefit from the provisions of this Bill may be in danger of benefiting only for a very limited period. There is a population cut-off point of 3,000 which applies to the settlements in which the shops are situated.
I am concerned to ensure that having gained the rating benefit, the ratepayer knows that that benefit will apply for at least two years, provided that there is no substantial change in the settlement in which the shop is situated. In Committee the Minister made the perfectly valid point that a line has to be drawn. He said that once the line is moved, it has to be moved for every area. I have attempted to meet that point by providing the two limits which appear in the Bill—not more than 3,000 the year before last, if I can put it in that way, and not more than 3,100 in the current year. In other words, one must always meet the 3,000 limit but if the settlement increases in size just a little bit, then the benefit would still apply.
Raising the point at this stage, although there are obviously practical difficulties, will give the Minister an opportunity to confirm further on the record how the
834
counts of population and settlements might be applied. In Committee he said that the local authority is not meant to be obliged to go on a head count and said also that the Government would consult local authorities on how to conduct a count of population sizes. I must say that I should be unhappy if I thought it was simply a question of turning a blind eye because that seemed to be the kind thing to do. If the Minister can give any more detailed information on that score or can comment on the objective—to provide continuity for the ratepayer in question—I should be most grateful. I beg to move.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, the noble Baroness is nothing if not tenacious. We had this discussion in Grand Committee and she has again raised the subject matter and is concerned about head counts and people turning a blind eye.
I shall do my best to explain the position to her and I hope to put her at ease. Her amendment seeks to provide a measure of protection for ratepayers in communities which may possibly grow above the 3,000 limit. It would ensure that once entered on a list, a settlement could not be removed until its population had grown to more than 3,100 in order to give a certain amount of leeway.
The noble Baroness is concerned to soften the impact of what she sees to be a purely arbitrary limit on the size of a settlement. She argues that the limits may create hard cases but the amendment itself also imposes arbitrary limits and may create hard cases. Perhaps I may give an example. The ratepayers in one village which had a population of 3,050 might find themselves eligible for relief under the terms of the amendment because the population has grown from 3,000. When it reached 3,000, the village was entered on the list. But ratepayers in a neighbouring village, which had always had a population of 3,050, would not be eligible for relief because it had never appeared at all on the settlement list. That is not fair.
The noble Baroness finds it difficult to accept that, if the scheme is to be targeted at small communities, we must draw a line somewhere and wherever that line is drawn, inevitably, some villages will fall on the wrong side of it. The noble Baroness is anxious that without her amendment, ratepayers will have insufficient warning of the removal of a village from the list. That is not so. Local authorities will have to give early warning of changes to the rural settlement list. If any changes are required, local authorities will have to draw up a new list for the following financial year and they would have to make available that list for inspection from 1st January. Therefore, ratepayers will have at least three months' notice of any withdrawal of relief.
But of course, in reality, they are likely to be aware of the possibility long before the local authority formally deposits the new list. For example, villagers will know whether their village is close to the 3,000 limit and will know of any new housing developments under construction. Therefore, the removal of the settlement

835
from the list is unlikely to come as a surprise to them and, as I explained before to the noble Baroness, there is no question of the local authority having to go on a head count every year to make quite sure of the position. As currently drafted, the Bill is phrased deliberately to ensure that the settlements are those which appear to the local authority to be of the figure of 3,000.
The Bill does not mean that communities will appear on a list on one year, disappear from it the year after and reappear the year after that, as the population fluctuates, and populations often do fluctuate. We do not intend—and the Bill does not require—authorities to chop and change the settlement list every time a villager is born or dies. But it requires local authorities to take account of significant changes in population such as, for example, the building of a housing estate.
The Bill has been drafted deliberately in order that local authorities can take ordinary common-sense decisions. We have talked to the local authority associations about how we can best apply the 3,000 threshold and we have asked them whether they would welcome any further guidance. They are considering that offer and if they come back to us to say that they would like further guidance, we shall be only too happy to provide it.
I hope that the noble Baroness is satisfied with that response. As the Bill is drafted, the whole purpose has been to try to make a common-sense arrangement. But wherever a line is drawn, there are bound to be some who fall on one side and some who fall on the other. We believe that, as it stands, the Bill is workable.
Baroness Hamwee: My Lords, I am grateful for that response. I suspected that we might not entirely see eye to eye but perhaps my sense is more common or less common of that of the noble Earl. My intention was not to challenge the settlement figure. I have not sought to alter the 3,000. My sole intention was to ensure that a shopkeeper who received the benefit knew where he or she was for a period of two years simply to further the aim of supporting small shopkeepers in communities where the continued existence of a shop was threatened. However, it is not practicable to pursue the point, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 2:
Page 20, line 42, after ("not") insert ("substantially").
The noble Baroness said: I beg to move Amendment No. 2. This deals with a different point. During Committee stage there was some discussion of the position of a general store in a settlement where the local post office sold a few household goods. The noble Earl said that if there was a genuine store in the village that sold everything it should qualify but he asked whether, if the post office happened to sell a couple of tubes of toothpaste, that would ditch the store. He went on to answer his own question:
"The answer is that it would not ditch the store, but it would depend on the amount and quantity of what it was selling. If its job is primarily that of being a post office, then it would not prevent the other store from getting rate relief". [Official Report, 4/3/97; col. CWH 17.]
836
I thought it might be helpful to return to this point briefly to address an issue of drafting so that the matter was on the record. Paragraph 2 of Schedule 1 to the Bill provides in the new subsection (6C)(a) that the qualifying general store must be a,
"business consisting wholly or mainly of the sale by retail of food…and general household goods…and (b) [that] such a trade or business is not carried on in any other hereditament".
I have tabled an amendment to test what is meant by "such a trade". My amendment proposes the insertion of the words "that such a business is not substantially carried on in any other hereditament". I believe that that reflects the Minister's words in Committee. But it may be that the Minister can confirm that in (b) the term "such a trade or business" imports the notion of "wholly or mainly" in (a); in other words, that such a trade is not simply a retail trade but a trade consisting wholly or mainly of that retail trade. That is intended to meet the question of what happens if the post office happens to sell a couple of tubes of toothpaste. If it would assist to expand on it I would be prepared to do so. I understand that it would not assist. I beg to move.
Earl Ferrers: My Lords, the noble Baroness quite rightly returns to a matter about which we had some discussion at Committee stage. There was doubt as to exactly where the limits lay in a post office which sold other things apart from those items which post offices normally sell. At present the Bill provides that mandatory relief is limited to the sole general store and/or the sole post office in a village. If a second general store opens in the village the special circumstances that merit mandatory relief to the first store no longer apply, and the relief is withdrawn at the end of the financial year.
The amendment moved by the noble Baroness seeks to ensure that a genuine store that sells a range of goods and services should not be denied relief simply because another business in the village begins to stock a few items of food or household goods such as a post office which (as I suggested) sold a few razor blades and some toothpaste or a garage that sold fizzy drinks or potato crisps as well. The noble Baroness is concerned that in this situation the second business would also be considered to be a general store and then no one would get mandatory relief. Instead, her amendment would provide that the business would have to be substantially a general store before the relief ended.
I am bound to tell the noble Baroness that when I first saw her amendment I was attracted by it. Like Little Red Riding Hood I was nearly taken in by it. But then I realised that the wolf was there. I should probably end the simile at that point. If my memory serves me correctly, Little Red Riding Hood proceeded to describe the wolf's big eyes, big teeth and so on. I believe that it would be inappropriate for me to reflect on the noble Baroness in that way. But the fact is that her amendment is unnecessary because the Bill meets her concerns. The Bill defines a general store as,
"a trade or business consisting wholly or mainly of the sale by retail of both food for human consumption (excluding confectionary) and general household goods".

837
To have simply a few odd items on sale would not in our view be sufficient to constitute a separate trade or business—one that would be separate from the other activities carried on on the premises. To prevent the first general store from qualifying for mandatory relief, the second premises would have to include a distinct business which consisted wholly or mainly of the retailing of food and general household goods. In those circumstances if there were another general store there would be no justification for the mandatory relief scheme to apply because the village would be well provided with the services which both these stores offered.
We discussed the practical aspects of implementing these provisions with the local authority associations. They have concluded that guidance may be helpful. We will be talking further to local authorities about the precise points that they would like to see covered in that guidance. I believe that the noble Baroness asked whether "such" equalled "wholly or mainly". The answer is yes.
I hope that I have been able to persuade the noble Baroness that the selling of additional items over and above what, for instance, a post office would normally sell would have to be done on such a scale as would amount to competition with the other store before that other store lost its relief.
Baroness Hamwee: My Lords, what the noble Earl has said is helpful. I had not intended to be a wolf in sheep's clothing or a wolf in wolf's clothing in moving this amendment. I simply wish to clarify the point. The noble Earl's answer is useful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Local Government and Rating Bill, have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
7.58 p.m.
Then, Standing Order 44 having been suspended (pursuant to Resolution of today's date), Bill read a third time, and passed.
Baroness Miller of Hendon: My Lords, I beg to move that the House do adjourn during pleasure. I suggest that the House reconvenes at 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 7.59 to 8.35 p.m.]

Business of the House
Lord Strathclyde: My Lords, it may be appropriate if I make a further Statement and, in particular, refer to the progress of the Crime (Sentences) Bill.
The House has now been sitting for three hours on this Bill. The House has discussed only five of the 46 groups of amendments down for debate. There are a further 41 groups left to discuss. It has thus become clear that a determination exists in certain quarters in this House to prevent this Bill leaving the House before Prorogation.
I have discussed this situation with the Home Secretary. He has reached an agreement with the other parties that the Bill should return to the other place in its present state (including the Opposition amendments to Clauses 3 and 4) and with the remaining government amendments proposed to be made this evening. I should stress that the Government do not intend to overturn in the Commons the defeat suffered on this Bill.
The Government remain of the view that this situation is unsatisfactory, and we intend to reverse this as a matter of urgency after the general election. But in spite of the present unsatisfactory state of the Bill, the Bill nevertheless provides for automatic life sentences for serious violent and sexual offences; establishes the principle of mandatory minimum sentences for persistent drug offenders and domestic burglars; and provides for honesty in sentencing. It will therefore remain the most radical step-change in criminal justice policy this century.
I hope that the whole House will agree with me that this is a most satisfactory outcome and that this means that the usual channels are once again in step on this and other Bills. I hope that the House will also recognise that it is the will of all parties to secure all remaining stages of this Bill with expedition tonight.
I am pleased to say that a similar agreement has been reached in respect of the Crime and Punishment (Scotland) Bill. A further announcement on that Bill will be made tomorrow.
Lord Richard: My Lords, perhaps I may congratulate the Government on at last seeing some sense in relation to the Bill. We on these Benches are delighted that our amendments will be accepted by the Home Secretary, and that the Bill will therefore remain broadly in the form in which it will leave the House. We believe that that is sensible. We believe that it is right. We also believe that it is the will of the House. I congratulate the Government and all the usual channels on coming to what is clearly an angelic rather than a satanic arrangement, which will no doubt enable the Bill now to proceed.
Lord Rodgers of Quarry Bank: My Lords, I shall forbear from teasing the noble Lord, Lord Richard, on the fact that neither he nor the noble Lord, Lord McIntosh of Haringey, was responsible, but that on their behalf Mr. Jack Straw negotiated what was a totally inadequate agreement with which your Lordships were presented earlier today. I shall merely rejoice in the

839
remarks made by the noble Lord, Lord Strathclyde. He said that the Government do not propose to overturn in another place the defeats which the Bill suffered in this House. That is a major undertaking which we welcome.
Noble Lords may know that it was our proposal on these Benches to pursue the Bill throughout the night. We have our squads coming back at 10.30 in order to do so, and very unusually, because we felt strongly about the matter, we proposed to vote against the Third Reading of the Bill. If, as a result, the Government had lost their business tomorrow and there had been further repercussions—I can see that the noble Viscount, Lord Long, has his watch. I have one too. I have a similar watch. Mine is a mere Swatch watch. His is probably a Rolex. Neither my Swatch watch nor the noble Viscount's Rolex will prevent me from finishing my few modest words.
On these Benches we all welcome what the noble Lord, Lord Strathclyde, said. We shall attempt to facilitate further progress on the Bill. It will be appropriate for there to be some discussion on Third Reading, mainly, no doubt, to thank the noble Baroness, Lady Blatch, for the assistance she has given during the Bill's progress, but at the same time to make one or two passing remarks. Beyond that, we are glad to assist in the Bill's passage, although we think that it is a pretty awful Bill, even amended.
We on these Benches have put down an amendment to the Bill for tomorrow which corresponds to the amendment in the name of the noble Lord, Lord McIntosh of Haringey, to whom I wish to pay tribute, because it was his amendment that the Government are prepared not to overturn in the other place. We have put down such an amendment, and I understand from what the noble Lord, Lord Strathclyde, has said that it will be accepted in the course of tomorrow's debate.
Lord Hacking: My Lords, although anybody in any social gathering is unhappy about upsetting what is clearly thought by others to be a happy occasion, I have to say that I do not find this a happy occasion at all. I have not participated in the usual channels and what I still find before your Lordships is a Bill which in many features is highly unsatisfactory. In saying that your Lordships have, because of pressures outside your Lordships' House, acceded to agreeing to a Bill which remains deformed—I am sorry to use such strong language—in many of its parts, I am in no way critical of my noble friends on the Front Bench, let alone the Minister, as long as they do not intervene when I am trying to decide whether to move an amendment or to seek a Division.
However, this is an appalling Bill. We are allowing a Bill to go onto the statute book although it has caused concern not only throughout this House but outside the Chamber also, as I know from private conversations. The Bill has caused grave concern, yet we are still allowing it to go through in its tainted and deformed shape.
Lord Carlisle of Bucklow: My Lords, as someone who has participated as a reasonably major critic of the
840
Bill from this side of the House, perhaps I may say that I accept that what has now been said by the Chief Whip means that at least, to return to this afternoon's three scenarios, this is a compromise. It is not a compromise with which one is necessarily totally happy, but it is a compromise which one has to accept, in which at least the two major clauses which caused the greatest concern have been amended in a way that I believe will be acceptable to those of us on both sides of the House—and those who are not here—who have to try such cases.
I am slightly encouraged by the thought that Part II, in which I have a certain interest since I chaired the committee on the parole review which brought in that which is now being overturned, will in practice never be implemented, whoever wins the election. Therefore, on the basis that half a—I cannot think of the rest of the quotation—
Noble Lords: Half a loaf is better than nothing!
Lord Carlisle of Bucklow: My Lords, on the basis that half a loaf is better than nothing, I think that we have achieved something and I am therefore grateful to the Chief Whip for his comments.
Lord Belstead: My Lords, perhaps I may ask just a quick question because the Chief Whip did not come through with quite his usual clarity, but perhaps I am getting deaf. Am I correct in assuming that the government amendments will be moved fairly formally?
Lord Strathclyde: My Lords, perhaps I may respond briefly to my noble friend. The answer is yes, the government amendments will be moved and I am sure that they will be agreed because all the usual channels have already agreed them.
Lord Belstead: My Lords, I am grateful to my noble friend.
8.45 p.m.
Lord Ackner: My Lords, I am, as I frequently confess to your Lordships, a child in these matters. I enjoy these debates because they bring one back to the Bar, except they are a great deal more courteous than one finds in court. I have the sneaking feeling that the whole of this is academic because whichever party succeeds at the election, I do not believe that it will do anything about the Bill at all because, if it did, the whole of our coast would be ringed round with prison ships.
Earl Russell: My Lords, the noble Lord, Lord Carlisle of Bucklow, has taken the words, and the bread, out of my mouth. He is, of course, quite right that half a loaf is better than no bread, but our problem has been to identify the quantity which constitutes that half loaf. We have made considerable progress on that, for which I warmly thank the Chief Whip. However, in respect for the sovereignty of Parliament, may I ask the Chief Whip to amend a single sentence of his statement? He said, "We will reverse this amendment after the next

841
election". Could the Chief Whip amend that to read, "We will attempt to reverse the amendment after the election"?
Lord Strathclyde: My Lords, I am grateful to all noble Lords who have spoken in this short debate on my statement, and particularly to the noble Lord the Leader of the Opposition and the noble Lord, Lord Rodgers of Quarry Bank. I am delighted to have their acceptance that this is the best deal and that, in the words of my noble friend Lord Carlisle, half a loaf is better than none.
I understand the regrets of my noble friend Lord Hacking with regard to the arrangement that has been struck but, as he has heard, the House is united, (including if I understood him correctly, the noble and learned Lord, Lord Ackner), that we should progress business as expeditiously as possible. I hope that when we reach my noble friend's amendments he will seek to move them, if he must, as briefly as possible.
Perhaps I may conclude with the noble Earl, Lord Russell, to whom I always bow down because of the constitutional advice that he brings to your Lordships' House. We will attempt to overturn this decision when we come back after the general election.

Crime (Sentences) Bill
8.49 p.m.
Consideration of amendments on Report resumed.
Clause 3 [Minimum of seven years for third class A drug trafficking offence]:
Lord Ackner Lord Ackner moved Amendment No. 10:
Page 3, line 29, at end insert—
("(3A) In the case of an offence which falls to be imposed under subsection (2) above, nothing in that subsection shall prevent the court, after taking into account any matter referred to in section 48(1) of the Criminal Justice and Public Order Act 1994, from imposing any sentence which is not less than two-thirds of that specified in that subsection.").
The noble and learned Lord said: My Lords, I have been asked to be brief in my interventions and I can do so because I have been greatly assisted by the announcement that has just been made and because the amendments to Clause 1 now stand. We have frequently been told that Clause 1 has been visited by a coach and horses which have given back to the judges their discretion. We have, therefore, these two significant features: so far as the mandatory automatic life sentence is concerned, there is no restriction on the discount that can be awarded. The only difference is that the discount is featured in the tariff which the judge decides. The judge reflects in his tariff his evaluation of all the circumstances of the offence, including whether or not the accused has pleaded guilty, when he pleaded guilty, the nature of the assistance that he is given in pleading guilty, and so on. Therefore, in regard to an important section of the Bill, it is common ground that the discount which is available to a judge is in no way restricted by the legislation. So that is that—
Baroness Trumpington: My Lords, I hope that the noble and learned Lord will excuse me for interrupting
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him, but can he say whether he is also speaking to Amendments Nos. 13 and 135 which, as I understand it, are grouped with Amendment No. 10?
Lord Ackner: My Lords, I am most grateful to the noble Baroness. In the spirit of harmony which is now persisting, the answer is, certainly.
We now come to the other situation; namely, minimum sentences. The noble Baroness fought valiantly in Committee to maintain that the discounts should be limited so that the minimum sentences could be, as she thought they would be—though others doubted it—a warning to those intent on committing offences that that might be the result. But that was all done on the basis that Clause 1 was open to this reversal. However, as Clause 1 now stands, according to the good tidings that we have received, and accepting the noble Baroness's strictures, the judge now has his full discretion.
The restriction imposed by "exceptional circumstances" has gone and gone for good and all. I am quite content to accept the criticism that that has resulted in a coach and horses being driven through those two clauses—now Clauses 3 and 4. In that situation, there is not the slightest justification for imposing any restriction at all because we are back to where we came in. Therefore, in relation both to the automatic life sentence (where the Bill does not propose any restriction) and in regard to Clauses 3 and 4 (where the restriction of "exceptional circumstances" has gone, and the judge is back to where he was to begin with), there would not be the slightest justification in imposing the artificial concept of 20 per cent. with all its disadvantages. Those disadvantages were described in detail by the Lord Chief Justice and we are, therefore, in the happy position of being able, as we should have been right from the start, to accept the wise advice of my noble and learned friend the Lord Chief Justice; namely, to continue as hithertofore. I beg to move.
Baroness Blatch: My Lords, I am not sure from what the noble and learned Lord said whether he is moving the amendments or withdrawing them.
Lord Ackner: I am so sorry; I thought that I was moving them. I said that I was moving the amendments and that they were unanswerable. However, as I did not make it clear, I said they were unanswerable because, as they stood, they drew an artificial line between the automatic life sentence in regard to which there is no restriction and the automatic minimum sentence. It is only in relation to the automatic minimum sentence that the restriction to 20 per cent. operates. The justification was that the automatic minimum sentence was a deterrent and should not in any way be reduced by allowing a greater discount than 20 per cent. But the automatic minimum sentence has now, for all practical purposes, gone, in the sense that there is no restriction on the trial judge in the cases to which the provision

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refers imposing such sentence as he considers just and, therefore, operating such discount as he considers just. I hope that I have now made the position clear.
Baroness Blatch: My Lords, I am sorry that I asked. I listened to what the noble and learned Lord said, but I simply wanted to know whether he was moving the amendments. I was most interested in what he said. I was trying to argue with him that what he was doing was actually introducing a very wide discretion for the judges; and he argued against that view. However, the noble and learned Lord has just referred to the fact that we now have full discretion for the judges.
The Bill as it stands provides that a court may take a timely guilty plea into account, as long as the sentence posed is not more than 20 per cent. below the mandatory minimum. I know that it is accepted on all sides that there needs to be an incentive for defendants who are guilty to plead guilty at the earliest opportunity, to save witnesses from having to give evidence unnecessarily and to avoid wasting the court's time. That is why the Bill as it stands makes statutory provision for a discount below the mandatory minimum.
At present, Section 48 of the Criminal Justice and Public Order Act 1994 provides that the courts may reduce sentences to take account of guilty pleas but does not specify the proportion. The Court of Appeal's guidelines indicate a range of 20 per cent. to one third, and that is no doubt why the amendments propose a maximum discount of one third in relation to the mandatory minimum sentences. But we must also bear in mind the need for the mandatory minimum sentence to be set at such a level, even in cases where the defendant pleads guilty, so as to provide a real deterrent for persistent offenders. It will, of course, be open for the courts to allow more than a 20 per cent. discount in cases where they would, other than for the guilty plea, have sentenced above the mandatory minimum.
Both burglary and drug dealing are crimes characterised by persistence. The aim of mandatory minimum sentences is to ensure that burglars and drug dealers know that they will face a stiff sentence if they persist in offending. If the mandatory minimum is substantially reduced, I believe that we would run the risk of undermining the very purpose and rationale of Clauses 3 and 4.
There is, therefore, a balance to be struck. On the one hand, there needs to be a sufficient incentive to encourage those who are guilty to plead guilty; but, on the other hand, the mandatory penalty must be such as to provide a real deterrent and salutary punishment to persistent offenders. Our judgment is that that balance is struck at about a 20 per cent. discount, which represents the lower end of the normal range for guilty pleas. We believe that that strikes the right balance. For those reasons, and due to the fact that I have answered the unanswerable question, I hope that the noble and learned Lord will not press the amendment.
Lord Ackner: My Lords, the noble Baroness is wrong in regard to suggesting that I have ever done other than accept that the amendments which this House achieved gave back to the judge the discretion that the clause purported to take away. I have never argued against the horses for courses proposition. If the Minister refers to the final instalment on the fourth day of the Committee stage, she will find that I said in terms that we should proceed in regard to the merits of the amendment on the basis of the Bill as it stood amended.
With the deepest respect, I must tell the Minister—and this is not meant as any criticism of the noble Baroness, for whom I have an undying admiration for all she has achieved—that her brief is out of date. It is drawn on the basis that there was not the concession which we have heard announced. Her brief was drawn on the basis that Clauses 3 and 4 were still available to be amended. They are not. They have been amended and the consequence is that we are back where we started. The trial judge is there to do justice and the mandatory minimum sentences do not in any way bind him if he considers that to impose them would be other than doing justice. That was the whole purpose of the amendment.
Baroness Blatch: My Lords, I am grateful to the noble and learned Lord for giving way. I wish to say two things. First, I must protect my officials who have worked enormously hard on this Bill. I was drawing from my mind when I made the comments that I did to the noble and learned Lord. Therefore I am entirely culpable as regards the remarks I made. Even as amended, the amendments—as set out in what were Clauses 1, 2 and 3 and are now Clauses 2, 3 and 4—contain a presumption that the mandatory minimum sentences will be applied. What has changed, of course, is the test which the court must apply in order to set aside the mandatory penalties.
Lord Ackner: My Lords, all that I appreciate. The point I am seeking to make—apparently not successfully—is that the noble Baroness has not appreciated what have been the consequences of accepting that the amendment is there to stay. The result is that the amendment gives back to the judge the totality of his discretion. It will be an anomaly quite incapable of being justified to give him back his discretion as to the sentence that he can impose but say, "Ah, but your discretion with regard to discount remains limited". That is not giving him back his discretion; that is removing a tiny little corner of it. It has no justification because the basis of the contention of the noble Baroness throughout—which is quite understandable, if I may say so—was that the minimum sentences would operate in virtually every case and one would remove the deterrent of the minimum sentence so operating if one gave a discount as substantial as 30 per cent. It would be totally wrong in my respectful

845
submission to proceed as if this amendment had not been passed. Accordingly, I shall be obliged to test the view of the House.
9.2 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 26; Not-Contents, 89.

Division No. 4

CONTENTS

Ackner, L.

Kintore, E. [Teller.]

Addington, L.

Longford, E.

Calverley, L.

Mackie of Benshie, L.

Carlisle, E.

McNair, L.

Carlisle of Bucklow, L.

Mar and Kellie, E.

Dean of Beswick, L.

Monson, L.

Elis-Thomas, L.

Rodgers of Quarry Bank, L.

Fitt, L.

Russell, E.

Hacking, L.

Thomas of Gresford, L. [Teller.]

Hampton, L.

Thomas of Walliswood, B.

Hamwee, B.

Thurso, V.

Hylton, L.

Tope, L.

Kilbracken, L.

Tordoff, L.

NOT-CONTENTS

Addison, V.

Goschen, V.

Annaly, L.

Gray of Contin, L.

Astor of Hever, L.

Haig, E.

Attlee, E.

Harris of Peckham, L.

Balfour, E.

Henley, L.

Banbury of Southam, L.

HolmPatrick, L.

Belstead, L.

Howe, E.

Bethell, L.

Inglewood, L.

Blaker, L.

Keyes, L.

Blatch, B.

Kimball, L.

Brentford, V.

Kitchener, E.

Bridgeman, V.

Lindsay, E.

Brookeborough, V.

Lindsey and Abingdon, E.

Bruntisfield, L.

Long, V.

Cadman, L.

Lucas, L.

Campbell of Croy, L.

Lucas of Chilworth, L.

Carnegy of Lour, B.

Lyell, L.

Carnock, L.

Mackay of Ardbrecknish, L.

Cavendish of Furness, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Chaiker of Wallasey, B.

Chesham, L. [Teller.]

Mackay of Drumadoon, L.

Clanwilliam, E.

Marlesford, L.

Clark of Kempston, L.

Merrivale, L.

Cochrane of Cults, L.

Miller of Hendon, B.

Courtown, E.

Monk Bretton, L.

Craig of Radley, L.

Montgomery of Alamein, V.

Craigavon, V.

Murton of Lindisfarne, L.

Cranborne, V. [Lord Privy Seal.]

Northesk, E.

Crathorne, L.

O'Cathain, B.

Dean of Harptree, L.

Perry of Southwark, B.

Denbigh, E.

Quinton, L.

Denton of Wakefield, B.

Rennell, L.

Dixon-Smith, L.

Renwick, L.

Donegall, M.

Ridley, V.

Downshire, M.

Romney, E.

Ferrers, E.

Rowallan, L.

Gisborough, L.

Sandford, L.

Glenarthur, L.

Seccombe, B.

846

Sharples, B.

Thomas of Gwydir, L.

Shaw of Northstead, L.

Trumpington, B.

Skelmersdale, L.

Ullswater, V.

Soulsby of Swaffham Prior, L.

Vivian, L.

Stewartby, L.

Wade of Chorlton, L.

Strange, B.

Whitelaw, V.

Strathclyde, L. [Teller.]

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.10 p.m.
[Amendments Nos. 11 to 14 not moved.]
Clause 9 [Crediting of periods of remand in custody]:
Baroness Blatch Baroness Blatch moved Amendment No. 15:
Page 6, line 2, at end insert ("or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence").
The noble Baroness said: My Lords, I wish to speak also to Amendments Nos. 16 and 17. I should explain to the House what has happened. The noble Lord, Lord McIntosh, is not moving his amendments. I shall be moving those which we now call the Belstead amendments, and they will come in their sequential order, which will be from Amendment No. 18. I hope that is helpful to the House.
Reverting to Amendments Nos. 15, 16 and 17, these three amendments to Clause 9 relate to the crediting of periods of remand in custody, and the effect of these amendments is to clarify, in certain circumstances, whether or not time spent on remand in custody should be credited towards sentence.
The effect of Amendments Nos. 4 and 5 is to make it clear that, where an offender spends time on remand in custody for a particular offence, and the nature of the charges changes during the course of the proceedings, that remand time should be able to count towards any custodial sentence he receives in respect of the charge of which he is eventually convicted, as long as that charge is founded on the same facts or evidence as the original offence for which he was remanded in custody. An example may be helpful to illustrate this point. A person is found in possession of stolen goods, arrested for theft, charged with that offence and remanded in custody. It subsequently becomes clear that he could not, in fact, have been the thief and the charge of theft is dropped and replaced with a charge of handling stolen goods. He is later convicted and sentenced to a term of imprisonment in respect of the charge of handling stolen goods. The latter charge is based on the same facts as the offence of theft, for which the offender was initially remanded in custody. The same result should occur in respect of a person remanded and tried for murder but convicted of manslaughter. It should be possible therefore to credit all that remand time towards the sentence in respect of the substituted offence, subject of course to the discretion of the court under the terms of the clause. These amendments make this clear on the face of the Bill.
Amendment No. 6 enables provision to be made not to count remand time in circumstances in which an offender is on remand in custody and some or all of that remand period is concurrent with a sentence of

847
imprisonment which he is serving in respect of another offence. That time cannot be credited under existing legislation (Section 67 of the Criminal Justice Act 1967, which is to be repealed by the Bill). We do not wish to disturb that practice.
The amendment extends the rule-making power in subsection (4) to allow for rules to be made to provide that any period of time spent on remand in custody which is wholly or partly concurrent with a sentence of imprisonment served by the offender shall not be credited towards any sentence of imprisonment imposed in respect of the offence for which he spent that period on remand.
The amendments serve to clarify the position in respect of the crediting of remand time in these two sets of circumstances to ensure that existing arrangements are preserved and to remove the possibility of any inconsistency in the application of the new provision. I beg to move.
On Question, amendment agreed to.
9.15 p.m.
Baroness Blatch Baroness Blatch moved Amendments Nos. 16 and 17:
Page 6, line 9, after ("offence") insert ("or a related offence").
Page 6, line 11, at end insert—
("(i) a remand in custody which is wholly or partly concurrent with a sentence of imprisonment; or
(ii),.)
On Question, amendments agreed to.
Clause 10 [Early release on compassionate grounds]:
Baroness Blatch Baroness Blatch moved Amendment No. 18:
Page 7, line 4, at end insert—
("(2) Before releasing under subsection (1) above a prisoner who is serving a sentence of imprisonment for a term of three years or more, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.").
The noble Baroness said: My Lords, in moving Amendment No. 18, I speak also to Amendments Nos. 19, 22, 27, 29, 30, 31, 34, 36, 39, 42 to 44, 48 to 55, 112, 115 to 117, 121 to 124, 127 and 128.
These are the amendments which have become known as the Belstead amendments in honour of my noble friend Lord Belstead, who raised the subject at Committee stage on which I agreed to reflect. It is a large group of amendments. They relate to the new arrangements for early release set out in the Bill. With the agreement of the House, I simply speak to my own amendment and leave my noble friend to determine whether he will press his.
We have had a useful and constructive debate in Committee about the new arrangements for early release. It was argued by a number of noble Lords, but in particular by my noble friend Lord Belstead, that the abolition of parole, and therefore risk assessments by the Parole Board, meant that an important element of protection for the public against potentially dangerous offenders would be lost. I undertook to reflect on this point, which is entirely legitimate, and to consider
848
whether it would be possible to meet that concern within the framework for honesty in sentencing set out in Part II of the Bill.
Since then I have had useful meetings with my noble friends Lord Belstead and Lord Pilkington, and the noble Lord, Lord McIntosh of Haringey. My right honourable friend the Home Secretary wrote to the Lord Chief Justice. I am grateful for the constructive and helpful manner in which noble Lords have approached the issue.
I remain firmly of the view that the package of proposals set out in Part II, taken as a whole, offers real improvements on the present arrangements for early release and post-release supervision. I explained the reasons for that in detail in Committee. Therefore, I shall not go into them again now. However, I have concluded that it is indeed possible and desirable to provide for the release of long term prisoners on the basis of a risk assessment by the Parole Board; and that that is the purpose of this group of amendments.
I propose that prisoners who are sentenced to three years' imprisonment or more should no longer be eligible for earned early release, but should instead be able to apply to the Parole Board for release at the five-sixths point of sentence. That is equivalent to the maximum discount they would have been able to accumulate under the earned early release scheme.
Short term prisoners, who are defined as those sentenced to less than three years' imprisonment, will continue to be able to earn this maximum discount of up to 16 per cent. of their sentence under the earned early release scheme. The Parole Board would then carry out a risk assessment to determine whether it was safe to release the prisoner. In doing so, the Parole Board will take account of regular reviews and reports on the prisoner's behaviour while in prison. If the Parole Board recommended that he or she should be released, the Secretary of State would be under a duty to do so. If it did not, the prisoner would remain in custody subject to annual reviews by the Parole Board.
The conditions of supervision of prisoners who are released from a sentence of three years or more will be set in accordance with recommendations made by the Parole Board; and, following release, conditions will be varied on the recommendation of the Parole Board.
The amendments mean that for long term prisoners release will in future be dependent on a satisfactory risk assessment by the Parole Board. This will, I hope, go a long way towards meeting the concerns which were expressed by a number of noble Lords, and by my noble friend Lord Belstead in particular, about the abolition of parole. At the same time it retains the key principles of honesty in sentencing: that there should be no automatic release and that the sentence served should match more closely the sentence imposed by the court.
I believe that the amendments provide an important additional element of protection for the public within the framework for honesty in sentencing set out in

849
Part II of the Bill. In commending them to the House, I thank noble Lords for their forbearance in discussing these matters with me between Committee and Report stages.
Lord Belstead: My Lords, I thank my noble friend Lady Blatch for the amendments to which she has spoken. They accept the point that risk assessment is necessary in the interests both of the safety of the public and of the rehabilitation of the offender—and therefore, again, the safety of the public—before more serious or long term offenders can be released early, and that a record of good behaviour, taken by itself, is not enough to warrant the early release of those convicted of more serious crimes. My noble friend accepted these points after listening carefully and thinking deeply, for which I was grateful, and after negotiating and talking to me and to others, for which I and other noble Lords are grateful.
I have three questions. My noble friend mentioned two issues to which I should like to refer. One is the assessment of risk as being the method by which the reviews will be undertaken. The second is that the setting or variation of conditions will be done by the Parole Board. A third issue, which I do not think my noble friend mentioned, is that there is, as I see it, no longer a ceiling to the cases with which the Parole Board can deal. In other words, there is no longer a seven-year ceiling. In the case of a prisoner with a 15-year sentence, the Parole Board will, as I understand it, be completely responsible for deciding whether early release is appropriate, in very much the same way as with discretionary lifers. I do not find any of those three issues on the face of the Bill and my noble friend may prefer to write to me about them. Will they be in Parole Board rules? Will they be in delegated legislation? Am I right that they are not on the face of the Bill? I do not object; I just wanted to raise the point.
Lord McIntosh of Haringey: My Lords, I do not wish to impede progress but these are important amendments which have not been debated before and presumably will not be debated again. I should like to place on record three points.
First, the Minister says that the amendments are an improvement on the present arrangements. We certainly do not agree with that. They are an improvement on the Bill as it stands at the moment and for that reason we shall not oppose them.
Secondly, the amendments are defective because they still only provide for this consideration to start after five-sixths of the sentence, whereas we firmly believe that the present arrangements, which allow for earlier consideration by the Parole Board, are superior to what is proposed now.
Thirdly, I believe they are unworkable. For purely ideological reasons, because of the slogan "honesty in sentencing", they provide that the sentence comes to an end when the prisoner is released, and therefore all of the post-release supervision, whether it is before or after the end of the originally imposed sentence, is not part of a sentence and the prisoner is not subject to recall, but the penalty for a breach of the post-supervision order
850
is in the form of the commission of an arrestable offence and the matter has to be brought before the court again. I cannot believe that that clumsy solution—which is brought forward only in order to preserve the fig-leaf of the Home Secretary following his promise to the Conservative Party Conference that people would serve the sentences they had been awarded—is the right one and I simply do not believe it is workable.
Lord Belstead: My Lords, I should have declared an interest: I am Chairman of the Parole Board. Secondly, I would have spoken to one other amendment in the group, namely Amendment No. 33, which relates to the matter to which the noble Lord, Lord McIntosh, has just spoken. I know my noble friend will not think that I am being grudging in my thanks to her when I say that I believe that I, the noble Lord, Lord McIntosh, and other noble Lords, not least the noble Lord, Lord Carlisle, are right about recalls and that the Government are wrong, but I do not intend to debate that matter this evening.
Lord Carlisle of Bucklow: My Lords, I believe we all know that my noble friend Lord Belstead is Chairman of the Parole Board. Having listened to his speech, I have to confess that he is rather more generous-minded towards the government amendments than I am. It is not that I do not welcome them as far as they go, but, with the greatest respect, and even at this hour when we are discussing a Bill which we have accepted should be amended in the way agreed, I nevertheless believe that one must raise some serious questions about what is proposed in this part of the Bill.
Let me say to my noble friend—I hope reasonably—that I welcome the fact that, as far as it goes, we are restoring the power of the Parole Board to make risk assessments in serious cases. I welcome in particular the fact that she has attempted to meet the spirit of Clause 23 of the Bill which says that once this Bill comes into force courts should only pass sentences two-thirds the length of those which they now pass. She has met that by saying that in future the distinction between long-term and short-term offences should be three years rather than four years. My noble friend, in reply to me in the general debate on Clause 7, was good enough to say that she would consider that and she has considered it.
But I am concerned that the amendment not only does not give as much as we have with the present situation but still raises many problems. All right: offenders given over three years will have the opportunity to obtain parole at five-sixths of their sentence. If they do not obtain parole, they serve 100 per cent. of their sentence. For them, there is no opportunity of early release on good behaviour, whether it is, as my honourable friend described it, "earned" early release or whether it is obtained by "not being badly behaved".
This situation creates potential troubles for the Prison Service in the future. When one adds all those offenders with sentences of three years or over to all those who now get life sentences under Section 1, all of whom will be serving a sentence which they cannot reduce by the early release mechanism that provides for lower

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sentences, I fear that we are building up potential problems in the prisons for the future. We have heard very little about the concerns expressed by prison governors about the effects of these proposals. So that is one of my concerns.
My other concern is that, whether we like it or not, the Bill will increase enormously the size of the prison population. There will be release at five-sixths, which means that for those with sentences of over three years as against those with sentences of under three years, even if the courts carry out the wishes of the Government by reducing sentences by two-thirds—I am not going into that argument again as to whether the general pressure of public opinion and the Sun, which now supports the party opposite, will allow it to be achieved—the proposals in the Bill on early release and the proposals now on parole mean that everyone in prison will serve 11 per cent. longer than they are serving at the moment. So the prison population is being increased.
Then there are the problems about recall. We are told that the Bill is meant to equate the sentence passed by the court with the sentence that the person will in fact serve. But, with great respect, we are doing a fiddle. Rather than let the court decide the full length of the sentence and have both the period in custody and the period in the community under that provision, we are now providing that those with sentences of three years or more shall serve five-sixths (which I believe is 84 or 85 per cent.) of their sentence and then be subject to review for 25 per cent. So one is going beyond the sentence originally passed by the court.
If the court passed a sentence of six years, one is saying that the prisoner comes out at 85 per cent. of that sentence and has 18 months on parole. He therefore goes well beyond the six year sentence. To cover that, since the Government do not feel it possible to recall—as a parole board can do at the moment because it is within the terms passed by the courts—they are happy to say that any breach of the probation will be an arrestable offence. That again, to my mind, seems to be causing problems.
It seems to me therefore—while recognising that my noble friend has been totally true (as she would be) to what was said at Committee stage—that the way in which the amendment has been drafted still has the effect of increasing the size of the prison population. It will make recall more difficult and provide no incentive for good behaviour.
That situation has come about because of the total commitment of the Home Office to the fact that a person should not be released on any basis having served less than 86 per cent. of the sentence. If the Government would accept Amendment No. 25, in my name and that of the noble Lord, Lord Thomas of Gresford—it refers to five-sixths, say, three-quarters—all their problems would be avoided. First, believe it or not, we would achieve the stated aim of the Home Secretary and the White Paper that it was not the intention to increase the length of sentence anybody served in prison. That is a nonsense. The Bill as drafted increases that length. If the Government did not wish to increase that length, as
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they say, and said that sentences shall be two-thirds and they will allow parole or release at one-quarter, they would achieve the same situation as exists at the moment.
My noble friend may say that that is the situation they are trying to avoid. But I understand that it is not. All the Government wish to avoid is a discrepancy between the sentence passed and the sentence served. They have achieved that by reducing it from 50 to 25 per cent. If the amendment is accepted, it would allow for parole at 25 per cent. and release for those sentenced to under three years at 25 per cent.; it would narrow the gap the Home Secretary wanted between the sentence passed and the sentence served. It would also achieve the end the Home Secretary wants of having no increase in the prison population as a result. It would achieve the result of still being able to provide an incentive for good behaviour by allowing for release, as is presently done for those who do not get parole, at an earlier stage than 100 per cent. It would achieve the result wanted by my noble friend Lord Belstead of being able to have recall under the parole system as recall, rather than as an arrestable offence.
Since we are now in a situation of having happily come to accord, perhaps we can be slightly more indiscreet than we might otherwise be. What is the great virtue in 85 per cent. rather than 75 per cent.? It is nothing more than trying to meet the sound bite of the Home Secretary on the party political platform in 1995 when he said, "No more half-time sentences for full-time crime". We all know that when he said that those who cheered him believed it meant that people would spend double the time in prison. He realised that that could not be achieved and is therefore hoping to reduce the length of the sentence to achieve a closer amalgamation between the two.
What I say next is not sour grapes, though it may sound like it. I chaired the committee which set up the present situation, which was accepted by both parties in 1991, implemented as from October 1992, and accepted as giving sense to sentences as a whole. I find it rather sad that those people on that committee—not myself, but the High Court judge, the chief constable and others—gave up a year of their life for little purpose, their proposals in the carefully considered report having been rejected within four years.
Finally, may I, as a plea, ask my noble friend not to talk about honesty in sentencing any more? It is not honesty in sentencing. It is whether we are having real-time sentencing. There was nothing dishonest in sentencing when there was the parole system allowing people out after one-third; there was nothing dishonest in sentencing when we recommended that a sentence should be clear and that the first half should be spent in prison and the second half in the community. It is not a question of honesty. It is a question of whether we move to real time sentencing, which is that a prisoner serves the whole of the time the judge says or he does not. That is the phraseology we ought to use.
I have spoken for longer than I should have, but I just wanted to say to my noble friend that, while I realise that she has nobly acceded to what she said she would, I for

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one still believe that what we have been left with is a far less satisfactory situation than that which exists at the moment. I am comforted only by the thought that, as the noble Lord, Lord McIntosh, said, neither party will ever implement this when it comes to power.
Baroness Blatch: My Lords, I could not disagree more profoundly with my noble friend's comments. My noble friend talked about the halcyon days of the present system, of which I know my noble friend was an architect. What we have at the moment is wholly unacceptable. We have people who are the most dangerous—those people whom my noble friend Lord Belstead and his colleagues on the Parole Board would refuse parole on the ground that they are not safe to release. When they come to 66 per cent. of their sentence they are released—released knowing that the Parole Board says they are dangerous, the Prison Service says they are dangerous and the probation officers working with them say they are dangerous—and there is nothing anyone can do. For a very small window—between 66 per cent. and 75 per cent.—they are recallable. But beyond that 75 per cent. they have to commit another crime before they can be dealt with in the courts. That is wholly unsatisfactory. We also have a very large number of other prisoners who are released at the half-way point and at the two-thirds point with no proper risk assessment when they come to those automatic points of release. I cannot believe that my noble friend thinks that satisfactory.
I am sorry he does not agree with those noble Lords who have welcomed the amendments providing for a proper risk assessment over a longer period before people are released into the community. The package must be taken together. When the custodial part of the sentence is deemed to have been served we have a much tougher supervision arrangement, which is increased for sex offenders—from 50 per cent. of a sentence right up to a 10-year supervision period—and it will be increased for violent offenders, if my amendment is accepted later this evening. That is what is right. If the noble Lord, Lord McIntosh, and my noble friend Lord Carlisle had their way with the amendments that they would wish to pass in the House, all the supervision period would be deemed to be within sentence, which would mean that prisoners would be eligible for release at least at the 50 per cent. point. If one is talking about a supervision period up to 10 years for sex offenders, how could that possibly be considered to be deemed within sentence? I really cannot disagree more profoundly with my noble friend.
Lord Carlisle of Bucklow: My Lords, I deliberately did not say anything because I support and welcome what has been said about the extended period of release for sex offenders. However, my noble friend said that under the present system people are released at 66 per cent. and that that is unacceptable. Since the proposal in the Bill is that in future sentences shall only be 66 per cent. of that which they are at the moment, surely they will still have to be released at that stage.
Baroness Blatch: My Lords, I argued that one should take the whole package. Therefore, the supervision period begins at that point. When it begins at that point it can be,
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as I said, 50 per cent. of the sentence right up to a 10-year supervision period, during which time offenders do not have to commit an offence other than to breach conditions. That is very different from committing another act of violence, another burglary or drug-dealing offence. If they simply display the kind of behaviour that would constitute a breach of conditions, they can be brought back before the courts and dealt with again with a much bigger variety of disposals available to the court than at the moment. At present one can only return people to prison and there is no way in which minor breaches of conditions can be dealt with. Therefore, I argue most strongly that the package in this Bill is much more acceptable.
I now return to the other point. I have made no secret of the matter whatever. I have been entirely open with the noble Lord, Lord McIntosh, and it is a matter to which I have already referred. I answered a Written Question in Hansard and I have referred to that today. There is an impact on prison places in this Bill which I virtually spelt out. Perhaps I may repeat that. It is estimated that there will be an eventual increase of around 11,000 places in the prison population some 12 years after implementation of Parts I and II of the Bill. On that basis, it is estimated that about 82 per cent. of that increase, which is 9,000 places, is attributable to Part I of the Bill and the remaining 18 per cent. (2,000 places) to Part II of the Bill. I was not hiding that or being dishonest about it. We have made that absolutely clear to the House from the beginning.
I now turn to the questions posed by my noble friend. The seven-year ceiling disappears. The effect of the Bill is that there will not be such a ceiling. There is no need to make provision in the Bill to make that clear. Conditions can be varied by a parole board after release. That is also the effect of the Bill by Amendment No. 35 as regards Clause 14(3)(b). The Parole Board will continue to assess risk under the existing powers, but there will be fresh instructions to the board. Again, I believe that that is welcome. My noble friend rightly identified a lacuna in the system and that is that there should be proper risk assessment before people are released from prison, particularly as regards long-term prisoners.
On Question, amendment agreed to.
Clause 11 [Award of early release days for good behaviour]:
Baroness Blatch Baroness Blatch moved Amendment No. 19:
Page 7. line 6, at end insert ("and less than three years").
On Question, amendment agreed to.
Lord Carlisle of Bucklow moved Lord Carlisle of Bucklow moved Amendment No. 20:
Page 7, line 7, leave out subsections (2) and (3) and insert—
("(2) For—

(a) the period of two months beginning with the day on which he was sentenced, and

(b) each successive period of two months ending before his release,

a prisoner serving a sentence of imprisonment for a term of three years or more shall be awarded twelve early release days and a prisoner serving a sentence of imprisonment for a term of less than three years shall he awarded fifteen early release days.").
The noble Lord said: My Lords, I believe that we have gone through this debate often enough in the course of the Bill. The purpose of this amendment is to attempt to meet the Home Secretary's stated intention in the White Paper; namely, that although the proportion of time that a prisoner should stay in prison is being changed, it was not intended thereby to increase it. Despite saying that in the White Paper and the Home Secretary's comments to that effect, a Bill has been brought in which has a different result, and this amendment would provide for the desired effect. As I say, it is clear—I hope without too much anger—that the noble Baroness, Lady Blatch, and myself are in total disagreement over this matter. Therefore, I do not wish to pursue it further unless the noble Lord, Lord Thomas, wishes to speak. In that case I shall formally move the amendment to enable him to do so. For myself, I believe that we have been around this argument so long that only time will tell.
The Deputy Speaker (Baroness Nicol): My Lords, does the noble Lord wish to move the amendment?
Lord Carlisle of Bucklow: My Lords, I formally move the amendment.
Lord Thomas of Gresford: My Lords, I do not wish to pursue this amendment, but I take the opportunity to congratulate the noble Lord, Lord Carlisle, on all the hard work that he has put into this Bill, the views that he has expressed and his achievements in positively improving the Bill.
9.45 p.m.
Baroness Blatch: My Lords, I can be brief. We are opposed to automatic release. Therefore, I oppose the amendment.
Lord Carlisle of Bucklow: My Lords, as my noble friend knows, I do not accept the phrase "automatic release". I believe that that is an unfair description. However, I do not wish to press the amendment further and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 21 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 22:
Page 7, line 19, at end insert—
("() Where at any time this section applies in place of section (Release on Parole Board recommendation), 25 or 26 below because a sentence is set aside or varied on appeal, then, for each assessment period for the purposes of this section beginning before that time, the prescribed person shall assume, for the purposes of subsection (2) or (3) above, that the prisoner's behaviour was such as to entitle him to the maximum number of early release days available under that subsection.").
On Question, amendment agreed to.
[Amendments Nos. 23 to 26 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 27:
After Clause 11, insert the following new clause—
RELEASE ON PAROLE BOARD RECOMMENDATION
(" .—(1) This section applies where a prisoner is serving a sentence of imprisonment for a term of three years or more.
(2) As soon as the prisoner has served five-sixths of his sentence, the Secretary of State shall, if recommended to do so by the Parole Board, release him.").
The noble Baroness said: I beg to move.
Lord Thomas of Gresford Lord Thomas of Gresford moved, as an amendment to Amendment No. 27, Amendment No. 28:
Line 4, leave out ("five-sixths") and insert ("three-quarters").
The noble Lord said: My Lords, the arguments have been well rehearsed. I should have urged those who have the responsibility to implement this legislation, if it is ever implemented, to make sure that the courts set out clearly what sentencing is about.
One of the reasons that this legislation has come forward and one of the forces behind the so-called honesty in sentencing is that the Government have not given guidelines to judges to explain what are the current provisions. If that had been done, then perhaps all this legislation and these pieces of paper that we have been discussing would have been unnecessary. I beg to move.
Lord McIntosh of Haringey: My Lords, merely for the progress of business, I should point out that this amendment was grouped with Amendment No. 18.
Baroness Blatch: My Lords, that is correct but I oppose the amendment on the grounds that we do not support even earlier release than that proposed in the Bill.
Lord Thomas of Gresford: My Lords, I beg leave to withdraw the amendment.
Amendment No. 28, as an amendment to Amendment No. 27, by leave, withdrawn.
On Question, Amendment No. 27 agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 29:
After Clause 11, insert the following new clause—
PROVISIONAL EARLY RELEASE DAYS FOR REMAND PRISONERS
(" .—(1) This section applies where an accused is remanded in custody in connection with one or more offences—

(a) which are alleged to have been committed after the commencement of this Chapter: and

(b) in respect of which he would be liable, if convicted, to a life sentence or to imprisonment for a term of more than two months.

(2) For the purpose of enabling early release days to be awarded on a provisional basis, subsections (2) and (3) of section 11 above shall have effect as if—

(a) the accused had been convicted of, or of an offence related to, the offence or any of the offences, and had been sentenced to imprisonment for a term of more than two months and less than three years, on the day on which he was remanded in custody;

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(b) any days falling after that day for which he is not remanded in custody were disregarded; and

(c) references in that section to periods of two months were references to periods of 60 days.

(3) Subsections (4) to (6) below shall apply if, and only if, each of the following conditions is fulfilled, namely—

the accused is convicted of, or of an offence related to, the offence or any of the offences;

(b) he is sentenced to imprisonment for a term of more than two months and less than three years; and

(c) a direction is given under section 9 above.

(4) For the purposes of section 11(4) above, any early release days provisionally awarded under subsection (2) above shall be treated as early release days awarded on the day on which the direction under section 9 above is given.
(5) For the purpose of securing that any days for which the accused was remanded in custody are taken into account in determining assessment periods for the purposes of section 11 above, that section shall have effect as if—

(a) the accused had been convicted and sentenced on the day on which he was remanded in custody;

(b) any days which fell before the day on which he was sentenced, and for which he was not remanded in custody, were disregarded; and

(c) references to periods of two months, in their application to periods beginning before that day, were references to periods of 60 days.

(6) If the direction under section 9 above is given in relation to a number of days less than that for which the accused was remanded in custody—

(a) subsection (4) above shall have effect as if the reference to any early release days provisionally awarded under subsection (2) above were a reference to the appropriate proportion of those days (rounded up to the nearest whole day); and

(b) subsection (5) above shall have effect as if the reference to days for which he was not remanded in custody included a reference to the complementary proportion of the days for which he was so remanded (rounded down to the nearest whole day).

(7) Where for any period the accused has been held in police detention, the prescribed person shall assume, for the purposes of section 11(2) and (3) above as modified by subsection (2) above. that during that period—

(a) the prisoner had been in prison; and

(b) his behaviour had attained, but not exceeded, the prescribed minimum standard for the purposes of that section.

(8) In this section—
"the appropriate proportion" means the proportion which the number of days in relation to which the direction under section 9 above is given bears to the number of days for which the accused was remanded in custody, and "the complementary proportion" shall be construed accordingly;
"life sentence" has the same meaning as in section 31 below;
"related", in relation to an offence, has the same meaning as in section 9 above;
and subsections (2), (9) and (10) of section 9 above shall apply for the purposes of this section as they apply for the purposes of that section.").
On Question, amendment agreed to.
Clause 12 [Award of additional days for disciplinary offences]:
Baroness Blatch Baroness Blatch moved Amendment No. 30:
Page 8, line 8, leave out ("entitled to be released") and insert—

("(a) entitled to be released under section 11 above; or

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(b) eligible to be released under section (Release on Parole Board recommendation) above,").

On Question, amendment agreed to.
Clause 13 [Provisional awards for remand prisoners]:
Baroness Blatch Baroness Blatch moved Amendment No. 31:
Leave out Clause 13, and insert the following new clause—
PROVISIONAL ADDITIONAL DAYS FOR REMAND PRISONERS
(" .—(1) This section applies where an accused is remanded in custody in connection with one or more offences—

(a) which are alleged to have been committed after the commencement of this Chapter; and

(b) in respect of which he would be liable, if convicted, to a life sentence or to imprisonment for a term of more than two months.

(2) For the purpose of enabling additional days to be awarded on a provisional basis, prison rules made by virtue of section 12(1) above shall have effect as if the accused—

(a) had been convicted of, or of an offence related to, the offence or any of the offences; and

(b) had been sentenced to imprisonment for a term of more than two months, on the day on which he was remanded in custody.

(3) Subsections (4) and (5) below shall apply if, and only if, each of the following conditions is fulfilled, namely—

(a) the accused is convicted of, or of an offence related to, the offence or any of the offences;

(b) he is sentenced to imprisonment for a term of more than two months; and

(c) a direction is given under section 9 above.

(4) For the purposes of section 12(2) and (3) above, any additional days provisionally awarded under subsection (2) above shall be treated as additional days awarded on the day on which the direction under section 9 above is given.
(5) If the direction under section 9 above is given in relation to a number of days less than that for which the accused was remanded in custody, subsection (4) above shall have effect as if the reference to any additional days provisionally awarded under subsection (2) above were a reference to the appropriate proportion of those days (rounded up to the nearest whole day).
(6) In this section—
"the appropriate proportion" has the same meaning as in section Provisional early release days for remand prisoners) above;
"life sentence" has the same meaning as in section 31 below;
"related", in relation to an offence, has the same meaning as in section 9 above;
and subsections (2), (9) and (10) of section 9 above shall apply for the purposes of this section as they apply for the purposes of that section.").
On Question, amendment agreed to.
[Amendments Nos. 32 and 33 not moved.]
Clause 14 [Release supervision orders]:
Baroness Blatch Baroness Blatch moved Amendment No. 34:
Page 10, line 2, leave out ("served") and insert ("been liable to serve").
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 35:
Page 10, line 12, leave out subsection (4).
The noble Lord said: My Lords this is a provision in the Bill which says that the Parole Board shall hold oral hearings in order to make recommendations to the

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Home Secretary which, I think I am right in saying, shall be accepted concerning the imposition of either a curfew order condition or a probation hostel condition on release of a prisoner.
There has been a great deal which I have said and put in writing to the Minister, and my noble friend has kindly replied. Therefore, I make one point only. I feel that the most important piece of information which is lacking about this matter is exactly how many oral hearings there will be. In a letter from my noble friend which was full of information, for which I am most grateful, she said that she was not sure but that probably the number would run into hundreds. Putting my slightly wettened finger up in the air to see where the wind is coming from, my noble friend and those advising her may discover that that is an underestimate. I say that because on the number of oral hearings rests the costs and the timeliness of the proceedings. The timeliness of the proceedings will be very important, as I believe my noble friend knows. I believe that the Prison Service would do well to try to make an accurate assessment as soon as it can of the number of oral hearings that would occur if this provision were brought into effect. Certainly, the Parole Board would seek to co-operate in an assessment of that kind. I beg to move.
Baroness Blatch: My Lords, I know that my noble friend has been concerned for some time about how the Parole Board would be able to reach a decision on whether a recommendation to include these conditions was appropriate. I believe that these fears are unfounded. We have discussed this matter between Committee stage and today, but I believe that my noble friend would be assisted if I placed on record my response to his concerns.
The first question to answer is who is to decide whether an oral hearing is necessary. The supervising probation service is most likely to identify the need for additional conditions of supervision, including where curfew orders or residence in a hostel is required. The service would then make an application to the Parole Board explaining why the condition was required. It would be for the board then to arrange an oral hearing.
The important point is that the prisoner should have the opportunity to be heard, to be represented and to challenge witnesses. The oral hearing could be held by a panel or a single board member. This is something on which the Prison Service will consult the Parole Board. Of course, the board must have the necessary and most useful information available to it before reaching a decision. I would expect a similar range of information to he available as is now the case for decisions on parole suitability: for example, police reports, social services reports, sentence planning documentation, earned early release documentation, a pre-discharge report completed by the supervising service which would include a risk assessment and an application from the supervising service setting out why the special conditions were necessary.
These conditions are intended to offer an opportunity for increased monitoring and surveillance and an important way to enhance protection of the public in
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suitable cases. They will be used where they are considered necessary to reduce the likelihood of reoffending, secure the rehabilitation of the offender and ultimately reduce the risk to the public. These criteria could be made available in additional directions to the Parole Board. I expect the board to supply written reasons for the decision in much the same way as now. They will all be subject to judicial review.
I cannot say exactly how many cases will occur each year but it is believed that the numbers are more likely to be hundreds rather than thousands. I note what my noble friend has said and that is on the record. I hope that my noble friend will understand that we will not be able to make a proper judgment as to that until the system is up and running. All I can say is that we will be conscious of the board's workload. It will be kept under review. No doubt the board will not be reticent in making its case to the Home Office should the workload and the costs incurred become an issue.
I want to ensure that we produce a system which is workable and effective. Sufficient time must be made available to put in place the necessary arrangements so that oral hearings work properly for all parties. We shall work closely with the board to develop a system which streamlines the process while maintaining the required flow of information. There is no absolute requirement to follow the existing arrangements which currently apply to other categories of offenders. We want these provisions to work and will ensure that the necessary consultation process does so within the outlines I have mentioned. In the light of those assurances, I hope my noble friend accepts that it is as well to put it on the record so that he has something to refer to in later months.
Lord Belstead: My Lords, I hope that my noble friend does not believe that silence signifies assent to every single thing that she has said. Nonetheless, it is very helpful to have her comments on the record. I am grateful for her reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 36:
Page 10, line 12, leave out subsection (4) and insert—
("(4) The Secretary of State—
(a) shall not specify any condition which—

(i) requires the offender to live in an approved probation hostel; or

(ii) makes such provision as is made by a curfew order,

except in accordance with recommendations of the Parole Board made after an oral hearing at which the offender had the opportunity to be heard or represented; and
(b) in the case of an offender who has been sentenced to imprisonment for a term of three years or more, shall not specify any other condition except in accordance with recommendations of that Board.").
On Question, amendment agreed to.
Clause 15 [Breach of conditions of release supervision order]:
[Amendment No. 37 not moved.]
[Amendment No. 38 not moved.]
Clause 17 [Young offenders]:
Baroness Blatch Baroness Blatch moved Amendment No. 39:
Page 12, line 16, leave out ("and 13") and insert (", (Provisional early release days for remand prisoners) and (Provisional additional days for remand prisoners)").
On Question, amendment agreed to.
[Amendments Nos. 40 and 41 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 42 and 43:
Page 12, line 31, leave out ("13") and insert ("(Provisional early release days for remand prisoners)").
Page 12, line 37, leave out ("13(2)") and insert ("(Provisional early release days for remand prisoners)(2)").
On Question, amendments agreed to.
Clause 18 [Sexual offenders]:
Baroness Blatch Baroness Blatch moved Amendment No. 44:
Page 14, line 6, leave out ("served") and insert ("been liable to serve").
On Question, amendment agreed to.
[Amendment No. 45 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 46:
After Clause 18, insert the following new clause—
VIOLENT OFFENDERS
(" .—(1) Subsection (2) below applies where—

(a) there is released under this Chapter an offender who has been sentenced to imprisonment for a term of three years or more in respect of a violent offence committed after the commencement of this Chapter; and

(b) the court by which he was so sentenced gave a direction under subsection (3) below.

(2) Section 14 above shall have effect in relation to the offender as if for subsection (2) there were substituted the following subsection—
"(2) On his release, the offender shall be subject to a release supervision order—

(a) where he is released otherwise than under section 10 above, for such period as is specified in the direction under section (Violent offenders)(3) below;

(b) where he is released under section 10 above, for a period equal to the aggregate of—

(i) the period mentioned in paragraph (a) above; and
(ii) a period equal to so much of the remainder of his term as he would have been liable to serve hut for his release under section 10 above."
(3) Where a court sentences an offender to imprisonment for a term of three years or more in respect of a violent offence committed after the commencement of this Chapter, it may give a direction under this subsection if it considers a longer release supervision period necessary for the purpose of preventing the commission by the offender of further offences and of securing his rehabilitation.
(4) A direction under subsection (3) above shall direct that the offender's release supervision period shall be such period, not more than 50 per cent of the offender's term of imprisonment, as is specified in the direction.
(5) In this section "violent offence" has the same meaning as in Part I of the 1991 Act.").
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 47, 61, 110, 113, 114, 118, 119, 130 and 131. This group of amendments would increase
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the period of post-release supervision for some violent offenders sentenced to three years or more. It would mean that, following their release from prison, such offenders would be supervised for a period greater than 25 per cent. but not exceeding 50 per cent. of their sentence if the court had directed this at point of sentence.
The House will recall that a similar amendment was proposed by the noble Lords, Lord McIntosh and Lord Williams, in Committee and they have tabled another for consideration today. Following the debate in Committee I was sympathetic to the amendments and undertook to give the question of extended supervision for violent offenders further consideration, and I have given the matter a good deal of thought. I share the views expressed by all Members of this House that the law should provide greater protection for the public from the most serious offenders. By giving the courts that flexibility we believe that that will be achieved.
The provisions within the Bill for an automatic life sentence for those who commit a serious violent (or sexual) offence for a second time, together with the provisions for extended supervision of sex offenders, will go a long way towards achieving that aim. But I accept that there may be a small number of very serious offenders who would not fall within the scope of those provisions and for whom the standard rate of post-release supervision, set at 25 per cent. of the sentence length for offenders sentenced to 12 months or more, may not be sufficient to prevent their reoffending and secure their rehabilitation.
This group of amendments will address that shortcoming; the provisions for extended supervision of some violent offenders will complement the full package of measures already included in the Bill. The courts will be able to direct at point of sentence that any offender who is sentenced to three years or more in respect of a violent offence should be subject to an extended period of post-release supervision on release. The supervision period would be greater than the standard rate of 25 per cent. but would not exceed 50 per cent. of the sentence length. A violent offence is defined using the definition set out in Section 31 of the Criminal Justice Act 1991:
"an offence which leads, or is intended to lead, to a person's death or to physical injury to a person, and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition)".
In making a direction the court would need to be satisfied that an extended period of supervision is necessary to prevent the commission of further offences by the offender and to secure his or her rehabilitation. This provision will provide flexibility to the courts which I believe will be welcomed. The amendment tabled by the noble Lord, Lord McIntosh, is similar to the amendments in my name. However, I believe that there is just a slight difference between us; that is, that the government amendment gives additional clarification for the courts by providing for a test against which the new provision should be used. I believe that

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the courts will welcome that and would encourage support of the Government's amendments. I beg to move.
Lord McIntosh of Haringey: My Lords, I am sure that my Amendment No. 47 is better than the government amendment, but I cannot for the life of me work out in what way it is better. Of course I am grateful to the Minister for the action that she has taken in response to the debate in Committee. We support the amendments.
On Question, amendment agreed to.
[Amendment No. 47 not moved.]
Clause 19 [Mentally disordered offenders]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 48 to 54:
Page 14, line 30, leave out ("13") insert ("(Provisional early release days for remand prisoners)").
Page 15, line 8, leave out ("13") and insert ("Provisional early release days for remand prisoners)").
Page 15, line 9, leave out from ("if") to end of line 10.
Page 15, line 12, leave out ("13(2)") and insert ("Provisional early release days for remand prisoners)(2)").
Page 15, line 15, leave out ("13(2)") and insert ("Provisional early release days for remand prisoners)(2)").
Page 15, line 27, leave out ("and").
Page 15, line 30, at end insert ("and (d) subsection (4)(b) were omitted.").
On Question, amendments agreed to.
Clause 21 [Persons liable to removal from the United Kingdom]:
Baroness Blatch Baroness Blatch moved Amendment No. 55:
Page 15, line 42, after ("Kingdom") insert—

("(a) section (Release on Parole Board recommendation) above shall have effect as if, in subsection (2), for the words "shall, if recommended to do so by the Parole Board," there were substituted the word "may": and

(b)")

On Question, amendment agreed to.
Clause 23 [Continuity of sentencing]:
[Amendments Nos. 56 to 58 not moved.]
10 p.m.
Lord Ackner Lord Ackner moved Amendment No. 59:
Page 17, line 16, at end insert ("or in respect of which the guidelines established by the Court of Appeal have materially changed.").
The noble and learned Lord said: My Lords, this amendment arises out of the obligation in Clause 23 upon a judge in future, once the Bill becomes law, to impose a sentence two-thirds of that which he would have imposed immediately before the commencement of the Act. As the clause is drafted, there will be frozen for all time the sentence which is appropriate for any given crime because the two-thirds is to apply to the sentence that would have been imposed immediately before the coming into force of the Act. That is clearly wrong because there will be alterations as a result of different perceptions in relation to categories of crime. Causing death by reckless or dangerous driving, for instance, is now looked upon as a great deal more serious than it
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was some five or 10 years ago. Rape is another very good example—if you go back 20 years, the sentence will have about doubled. Therefore, you cannot freeze the position at the point when the Act comes into force.
Accordingly, we have proposed in subsection (3)(b) to insert the words,
"or … the guidelines established by the Court of Appeal have materially changed",
because the only let-out that is given is where the maximum sentence in prison has been varied after the commencement, and the maximum may not be varied at all; it is the approach within the maximum which may have altered. I beg to move.
Lord Thomas of Gresford: My Lords, I support the amendment. The Government should realise—I am sure that they do—that the Court of Appeal publishes guidelines on sentencing from time to time and, as the noble and learned Lord, Lord Ackner, has pointed out, those guidelines change. One area in which I think that they have changed dramatically, in addition to those to which the noble and learned Lord has just referred, is in relation to drugs. Convictions for drug offences have been taken much more seriously as the problem has grown within the country. It would be wrong to fossilise the sentences that are being passed now because new problems may well emerge, just as has happened in relation to drugs and the other areas to which the noble and learned Lord referred. If fresh problems arise, the sentences will change. I support the amendment.
Baroness Blatch: My Lords, Clause 23 of the Bill requires the courts to adjust the sentences they pass after the commencement of Part I to take account of the abolition of parole and the changes in early release arrangements. The intention is, of course, to ensure that offenders serve approximately the same time in prison as they do at present. However, there are certain circumstances in which it is not necessary for the courts to adjust their sentences and these are spelt out in subsection (3). Where the offence in question did not exist prior to commencement, or was not punishable by imprisonment, or the maximum penalty has been varied, it will not be necessary for the court to apply the formula set out in Clause 23.
The amendment moved by the noble and learned Lord, Lord Ackner, would add a further rider to subsection (3), to the effect that Clause 23 should not apply in relation to offences for which the guidelines established by the Court of Appeal have materially changed.
I understand the reasons which lie behind this amendment, which the noble and learned Lord has explained. However, I do not believe that it is necessary; indeed I think it would serve only to complicate matters. For one thing, the amendment implies a somewhat greater degree of formality about the nature of Court of Appeal guideline judgments than is perhaps the case. Every Court of Appeal judgment relates primarily to the individual case in question. Some of them will also contain guidance of more general application. But it is not necessarily self-evident which Court of Appeal judgments are to be regarded as "guideline judgments";

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nor will it necessarily be self-evident whether previous guidelines have "materially changed". I am afraid that the terms of the amendment are therefore somewhat vague and nebulous for statutory purposes, particularly when they relate to such an important matter as whether the court should apply the formula set out in Clause 23.
I believe the concern which may lie behind the amendment is that the effect of Clause 23 would be to freeze sentencing guidelines at their present level indefinitely. I can assure the House that that is neither the purpose nor the effect of Clause 23. It will remain open to the Court of Appeal, as it is at present, to issue guidelines on the proper range of sentences for particular categories of offence. Any such guidelines will of course be applicable to lower courts, exactly as they are now. In the fullness of time, it may be that Clause 23 in effect withers on the vine, as sentences across the spectrum of offences settle at a new level. It may eventually no longer be necessary to require judges to go through the process set out in subsection (2). For the present, however, I believe that the amendment is neither necessary nor helpful.
In the light of what I said about the variable patchwork of decisions which come from the Court of Appeal relating to very specific cases, and the individual cases that appear before it, I hope that the noble and learned Lord will not press the amendment.
Lord Ackner: My Lords, I am bound to say that I find the Minister's response wholly unsatisfactory. It overlooks how guidelines are established. The Court of Appeal does not take a single case and then say, "This is the guideline". As soon as it becomes apparent that there is a line of cases where the punishment is inadequate, or has not been sufficiently detailed, there are collected together in the Court of Appeal (Criminal Division) half a dozen of such cases and then the court sets about clearly stating what should be the range of sentences, and what are the mitigating and aggravating factors. Indeed, we have provided examples.
For instance, the courts have said on occasions, especially in regard to death by dangerous or reckless driving, that the level of sentences is too low and that it must be increased. This is the way in which one goes about it. I just do not know how the noble Baroness can suggest that that can be reflected where you have a statutory obligation to impose the same sentence as you would have imposed immediately before the Act came into existence and you have subsection (3) which is the only let-out but which does not cover the situation. I do not understand why the Home Office is so resistant to any step being taken to improve the Bill. However, apparently the tradition at this stage is not to move any amendment to the extent of a Division. I shall, therefore, leave the matter on the record for the Government, or their successors, to face up to the problems about which they have had a full warning. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 [Interpretation of Chapter I]:
Baroness Blatch Baroness Blatch moved Amendment No. 60:
Page 17, line 18, leave out ("13,").
The noble Baroness said: My Lords, I shall be brief. The amendment corrects a single drafting error in the Bill. Clause 24 (the interpretation clause for Chapter 1, Part II) refers to the definition of a "court" in various other clauses, including Clause 13. However, Clause 13 does not contain any reference to a court. The amendment, therefore, deletes the reference to Clause 13 in Clause 24. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 61:
Page 17, line 39, after ("18(3)") insert ("or (Violent offenders)(3)").
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved, as a manuscript amendment, Amendment No. 61A:
Before Clause 25, insert the following new clause—
APPEAL AGAINST SENTENCING RECOMMENDATION OF TRIAL JUDGE IN MURDER CASES
(". An appeal shall lie to the Court of Appeal (Criminal Division) against a recommendation by the trial judge to the Secretary of State under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 as to the minimum period which should elapse before the release on licence of a person convicted of murder.").
The noble and learned Lord said: My Lords, I am seeking to bring back to the House an amendment which was put into the 1994 criminal justice Bill. In a way this is an orthopaedic amendment because it is designed to test whether the Opposition have any backbone at all. The amendment was passed by a large majority in this House and it was then reversed in the Commons. But after it was reversed in the Commons the all-party Home Affairs Committee recognised the wisdom of this provision, because what it does is to give the right of appeal to a convicted person against the recommendation by the trial judge as to the tariff in relation to a murder case. There is a right of appeal in the discretionary case where the judge says what the tariff should be. This is helpful because, if he has it wrong, the Court of Appeal puts him right. It also means that he gives his reasons for the tariff.
All that is sought to do here is in the case of a murder—as opposed to those offences which carry only a discretionary life sentence—where the life sentence is automatic, the same position arises and the right of appeal is given in the same way. It in no way binds the Home Secretary. As the Home Affairs Committee pointed out, it gives the Home Secretary the advantage of having put before him a recommendation which has either not been challenged because it is clearly a sound one, or a recommendation which has been challenged with the result that it has been upheld or has been amended as the Court of Appeal thinks appropriate. It makes the whole process much more open, much more transparent, and it provides a greater accuracy and improved quality of precision. I beg to move.
Baroness Blatch: My Lords, I think the noble and learned Lord was a bit unkind to the noble Lord, Lord McIntosh. Far be it from me to come to his aid, but the noble Lord, Lord McIntosh, would not have chosen to be in this position on this Bill. I am sure he would give a great deal to be able to discuss it at greater length.

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We are at the tail end of a Parliament and we are therefore subject to special provisions. It is the Government who should take any criticism rather than the noble Lord.
The House debated this clause at some length during the passage of the Criminal Appeal Bill—as it was—in 1995. I must indicate that, now as then, the Government cannot agree to this new clause. The new clause would create a considerable anomaly if there were to be no change in existing judicial practice when it comes to making minimum recommendations in open court in murder cases. For example, if a judge made a minimum recommendation under the terms of Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965, the convicted murderer would have a right of appeal. But if the trial judge chose not to make such a recommendation in open court, then no such right of appeal would exist. In those cases, the trial judge would still make a recommendation to the Secretary of State about the period to be served in order to satisfy the requirements of retribution and deterrence, but it would not be appealable.
Even if this flaw could be remedied, we could not accept the argument that a right of appeal ought to exist against the trial judge's recommendation. Where there are avenues of appeal against sentence they are, almost without exception, in cases where the court has the final word on the subject and where the Executive has no power to substitute a different order.
When the noble and learned Lord, Lord Lane, the then Lord Chief Justice, confirmed that there was indeed a right of appeal against the "relevant part" specified by the trial judge in the case of a discretionary life sentence, he referred to the acid test being that there,
"was no modification, revision or alternative which could be substituted for that by the Minister".
This is clearly not the case with a minimum recommendation made by the trial judge in the case of a mandatory life sentence. It is only a recommendation. Parliament has not chosen to give the judiciary in the case of the mandatory life sentence anything more than this role in considering the penal element.
As the noble and learned Lord, Lord Mustill, said during the course of the Doody judgment:
"Parliament has not by statute conferred on the judges any role, even as advisers, at the time when the penal element of a mandatory sentence is fixed".
Given that the minimum recommendation is just that—a recommendation and not a decision—there can be no case for building an appeal procedure about it. It would mean that the element in the tariff-setting procedure alone would be subject to appeal.
The minimum recommendation made in court is not the end of the matter. There may be no right of appeal against the recommendation, but there is opportunity for a further judicial view. My right honourable friend the Home Secretary places considerable value on the views expressed as to tariff by the Lord Chief Justice under the current procedures. However, Parliament has decreed that, ultimately, the length of a mandatory life sentence prisoner's tariff is the Home Secretary's decision.
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The view of the judiciary on the requirements of retribution and deterrence is one important factor taken into consideration, but other factors such as the need to maintain public confidence in the system of justice are also relevant. Tariff setting can go wider than normal judicial considerations. This being so, the value of Court of Appeal consideration must be doubtful.
The issues relating to a right of appeal against the judicial recommendation in mandatory life sentences are complex. I have only skimmed the surface of them. To raise this issue at this stage in the passage of a Bill through Parliament, even in normal conditions if it were the tail end of the Bill, and at this stage in the life of the Parliament is not the best time for such arguments to be aired. I hope the amendment will not be pressed.
10.15 p.m.
Lord Ackner: My Lords, in a Bill which has been praised by the Government for its radical proposals, something as mild as this can hardly justify the indignation that the noble Baroness has shown. What is being proposed was carried in this House on 26th June 1995 by 142 votes to 126. Of course, among many other members of the Opposition was the noble Lord, Lord McIntosh of Haringey. That is why I thought we might get a little support from that quarter, but the orthopaedic test has been carried out and we know the consequences.
The noble Baroness overlooks the observations of the All-Party Home Affairs Committee and has commented on the fact that this amendment was carried and then was subsequently reversed in this House. The report stated:
"We see an inconsistency in that both defence and prosecution have a right of appeal against the 'relevant part' of a discretionary life sentence, but not against the tariff of a mandatory life sentence. It might be argued that there is no need to provide for a right of appeal for the Attorney-General, acting of behalf of the Crown, against a judge's tariff recommendation if the final decision were to rest with the Home Secretary, another Minister of the Crown. We maintain, however, that a right of appeal under such circumstances would be invaluable, as it would enable the Home Secretary to make his final decision on the basis of a more fully considered judicial view. We believe that a right of appeal would not just act in the interests of an offender, but could also be in the public interest".
That is clearly a further endorsement of what appeared previously in your Lordships' House. I merely raise it for the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Duty to release certain life prisoners]:
Lord Ackner Lord Ackner moved Amendment No. 62:
Page 18, leave out lines 18 and 19.
The noble and learned Lord said: My Lords, the amendment deals essentially again with the question of the Home Secretary's powers in relation to setting the tariff. I have raised the issue because once again the All-Party Home Affairs Committee, having considered very carefully the question of the mandatory life sentence in murder in terms, concluded that although the mandatory sentence should continue the Home Secretary should play no part in it. It did so for the very simple reason that the time that a person spends in prison, the length of time that a person loses his liberty,

869
should be the result of a judicial process and not a decision taken by a politician. Again, I put the matter forward for the record. I shall be delighted to hear the current government response. It cannot be any longer that murder is a uniquely heinous situation because the noble Baroness did not adhere to that situation when we last discussed the matter in Committee. I beg to move.
Baroness Blatch: My Lords, the Government's position on this has not changed. Perhaps I may say again that I do not believe at this stage of the Bill, and at this stage in the life of a Parliament, that we should be introducing this measure. I know and respect well the noble and learned Lord's position on this, and indeed of other noble Lords in the House. I simply oppose the amendment.
Lord Ackner: My Lords, looking into the future, there may be further and better opportunities. At present I do not press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Duration and conditions of licences]:
[Amendments Nos. 63 and 64 not moved.]
Clause 29 [Recall of life prisoners while on licence].
[Amendments Nos. 65 to 71 not moved.]
The Earl of Longford The Earl of Longford moved Amendment No. 72:
Page 20, line 29, leave out from ("directs") to ("immediate") in line 32 and insert ("a life prisoner's")
The noble Earl said: My Lords, I do not think that the House will accuse me of having wasted much of its time during these meticulous discussions. I have spoken only briefly on two occasions. However, perhaps I shall be forgiven if I offer a few sentences of a general character before coming to the amendment.
At Second Reading I described this as the worst Bill that has been brought before the House in my 50 years here. I still say that, but the measure is somewhat better than it was as a result of the heroic effort of my noble friend Lord McIntosh of Haringey, the noble Lords, Lord Carlisle and Lord Belstead, the noble Earl, Lord Russell, the noble Lord, Lord Rodgers, and others. But it is a bad Bill.
To put it very crudely, from a Labour Party point of view, it is in total contradiction of traditional Labour Party support for penal reform. I had the honour to be the chairman of a committee set up by Harold Wilson in 1964 which included six members of the subsequent Wilson Government. Various proposals were made, including the introduction of parole and the abolition of capital punishment, which later became law. It is also against the traditions—or recent traditions, at any rate—of the Conservative Party. There have been heroic Conservative reformers in the past. Lord Templewood and Lord Butler come to mind; more recently we have various noble Lords in this House. Mr. Hurd, a former Home Secretary, is now to become chairman of the Prison Reform Trust. That organisation represents a total contradiction of all that the present Home Secretary stands for.
Nevertheless, I feel like Mihailovich. Some noble Lords may remember him; he was before the time of some Members of your Lordships' House. He was executed after being swept away by the gales of the world. I am swept away by the news that a deal has been reached which apparently restricts discussion here for no reason whatever. I have talked to at least 12 noble Lords today and asked, "Can anyone tell me why we are not meeting next week?". No one has been able to provide an answer. Nevertheless, for whatever reason, for some stratospheric considerations, I have been swept away. A deal has been reached and I must come briefly to the immediate issue.
Frankly, my amendment is unintelligible as it stands, but I am informed by the experts that it does in fact carry out my purpose, which I indicated at Committee stage and which is a very simple one. It puts the position of those who are serving mandatory life sentences and are recalled to prison on the same footing in the process of consideration as those who are serving discretionary life sentences. It is quite simple. Everyone can see what the process is for discretionary life sentences. Everyone can see—or will, I hope, be able to see after I have explained the matter—what can happen to a mandatory life prisoner.
I will mention a prisoner's name. I did not mention it on the previous occasion, but, for reasons which I respect, the noble Baroness, Lady Blatch, has mentioned it. His name is David Rundle. I have visited this gentleman in various situations for perhaps 17 years. He was recalled to prison on the say-so of a probation officer. He was not recalled because any court decided on that course, he was not charged with a criminal offence, but the probation officer considered that his conduct was unsatisfactory and so he was recalled. That same probation officer, with whom I have been in touch, now considers that he should he released, which of course will not happen. This gentleman was recalled to prison and has been there for three years. He has now been told that he will go to an open prison—so far so good, that will certainly be better than where he is now—for at least another year. He will have been in prison for four years without ever appearing before, or being represented before, a tribunal.
That is the essential difference between the position of a mandatory life prisoner and that of a discretionary life prisoner. If he were a discretionary life prisoner he would go before a tribunal—a panel of the Parole Board would be the usual situation, I think—and the finding of that tribunal would be binding on the Home Secretary.
This gentleman's case has twice been before the Parole Board. He himself has not been allowed to appear before the Parole Board, of course. On the first occasion, the Parole Board recommended that he should go to an open prison but was overruled. I went to see the Minister of State responsible for prisons at the time and had a long discussion. He was very polite, but no reason was given as to why the Parole Board was overruled by the Minister. That is what can happen to a mandatory life prisoner.
That situation is scandalous and unjust to a large class of prisoners. After all, there are 3,000 people in prison now serving mandatory life sentences. They should be

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put on the same footing as discretionary life prisoners. I accept that it is unlikely that the Government will be able to agree to that tonight. I am sure that in the end, whoever is in power, will accept this proposal. I beg to move.
10.30 p.m.
Baroness Blatch: My Lords, I know that the noble Earl is prompted by the circumstances of a particular individual. I went over that case in some detail on 20th February and I do not wish to add very much more to that now, except to say that the initial recommendation of the Parole Board to transfer Mr Rundle to open conditions was rejected in January 1995 because the circumstances which had led to Mr Rundle's recall to prison had revealed clear concerns over his potential risk and his serious breach of trust as a life licensee. It was considered unacceptable—
The Earl of Longford: My Lords, if I may be allowed to interrupt the noble Baroness, that is a general remark. There was no evidence whatever produced of that.
Baroness Blatch: I think, my Lords, that it would be unseemly for me to have an argument with the noble Earl across the Chamber. But, in the absence of knowing all the facts, the noble Earl must give some credence to the information that is provided by the Prison Service, the probation officers and those who are in constant contact with the person. All those things would have been considered and put before the prisons Minister for consideration.
It was considered unacceptable, as I said, to return him so soon after recall to the relative freedom of an open prison, untested as to risk. His behaviour on life licence did not bode well in terms of his possible risk of absconding from open conditions. He was informed of the reasons for the rejection of the Board's recommendation on 17th January 1995. However, a subsequent Parole Board recommendation in June 1996 for open conditions was accepted by Ministers. The noble Earl will be pleased to know that Mr Rundle will be moving on very shortly.
The important point is that not only do recalls to prison involve the independent Parole Board, but, if the prisoner remains dissatisfied about the decision, he may pursue the case by way of an application for judicial review. Mr. Rundle did in fact do that, but he subsequently withdrew his application. I hope that the amendment will not be pressed.
The Earl of Longford: Well, of course, my Lords, that answer was totally unsatisfactory. The noble Baroness, in the nature of things, knows nothing whatever about this case. I know a great deal about this gentleman, having visited him over a period of 17 years. Just to take one aspect of her reply which was very unsatisfactory, in June the Parole Board recommended that he should go to an open prison. Now we are in March and I believe that he is just about setting off to go to one. That shows the way in which he has been
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treated. It is quite abominable. But I withdraw the amendment, intending, of course, to bring it up very soon when we have a new and very much better government.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 to 75 not moved.]
Clause 32 [Fine defaulters: general]:
[Amendments Nos. 76 to 82 not moved.]
Clause 34: [Persistent petty offenders]:
[Amendments Nos. 83 to 86 not moved.]
Clause 36 [Offenders]:
Lord Hacking Lord Hacking moved Amendment No. 87:
Page 26, line 41, after ("offence") insert ("connected with the use of a vehicle").
The noble Lord said: My Lords, your Lordships will remember that, when we considered this clause in Committee, my noble friend the Minister took us on a journey around Cambridgeshire in a police car, trying to find some connection between the offence and the punishment.
In order to hasten our proceedings I intend to comment upon Amendments Nos. 88 and 91 and would invite the noble Lord, Lord Thomas, to speak on Amendments Nos. 89 and 92, which cover the same subject, which is mainly Clause 36 of the Bill. In Committee, full arguments were presented about the difficulties of rehabilitating prisoners, particularly persons who, when they come out of prison, could, under the provisions of this Bill, face a disqualification order. I need not repeat the argument of the noble Lord, Lord Thomas, who took us carefully through these issues at Committee.
The purpose of Amendment No. 87 is very simple; it is to connect the offence with the punishment. I merely seek in that amendment to provide a proper causal connection between the offence and the punishment.
Your Lordships should be aware that for many years there has been on the statute book, in Section 44 of the Powers of Criminal Courts Act 1973, when a motor vehicle has been used for the purpose of committing or facilitating the commission of a crime, the power for the court to deprive the offender of the right to drive; to disqualify him. That is already on the statute book and I merely suggest, in Amendment No. 87, that if we are to bring this matter back to the statute book, in a slightly different form, there must be some connection between the offence and the punishment.
Amendments Nos. 88 and 91 deal more directly with offenders who have been in receipt of a mandatory sentence under the provisions of this Bill. In those circumstances, each of those offenders will be coming out of gaol at the end of their period of mandatory sentence in order to rehabilitate into the community. Nothing could be more counterproductive, for the reasons advanced in Committee by the noble Lord, Lord Thomas, than for those persons to face a disqualification order. That is the basis of my decision to table each of those amendments. I beg to move.
Earl Russell: My Lords, I hope the noble Baroness will forgive me if I say a few words in support of this

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amendment. I appreciate the case that the noble Baroness makes for looking for other forms of punishment. But I should like to ask her (or whoever else may be at the Home Office when this Bill comes into effect) not to make use of the clause without attempting to calculate the cost it may involve for the social security budget. We all agree that that budget needs to be brought down. In punishing offenders, we should not cut off our nose to spite our face.
Lord Hylton: My Lords, I am strongly in favour of the rehabilitation of offenders into normal society. I support this group of amendments because the Bill as drafted is likely to bear harshly on offenders who happen to come from rural areas where public transport is poor or non-existent. That involves a considerable number of people.
Baroness Blatch: My Lords, perhaps I can take the final point first. I am strongly in favour of the punishment fitting the crime, but I am also in favour of the rehabilitation of offenders. As someone responsible for the probation service, that has been an important factor in my portfolio.
Amendment No. 87 would prevent a court from imposing disqualification from driving for an offence unless it were connected with the use of a motor vehicle. The purpose of Clause 36 is to extend the court's powers to impose disqualification for any offence. My noble friend made a powerful case that disqualification will be particularly appropriate in cases involving the use of a vehicle. I do not seek to deny that. But we believe that denying people the freedom to drive is an effective punishment for any offence. It is a restriction on liberty in the same way that a fine is a restriction of an offender's financial liberty and a community service order restricts his freedom to do what he wants with his time.
We do not know exactly what use courts will make of this power. That is one of the reasons we have always made it clear that we will introduce these provisions by way of pilots in selected areas. However, we believe that we should give the courts the maximum flexibility to impose disqualification as a sentence. They will no doubt develop their own sentencing guidelines in the light of the practical experience of the pilot schemes. The House will know that we have put a limit of 12 months on the length of disqualification period that can be imposed by a court.
I invited my noble friend to couple these amendments with Amendments Nos. 88 and 91. He did not want to couple them together but has now spoken to them, so I hope that he will forgive me if I also address Amendments Nos. 88 and 91. The amendments would prevent the courts imposing a disqualification from driving on offenders who receive an automatic life sentence under Clause 2 or a mandatory minimum penalty under Clauses 3 or 4 of the Bill. The reason that there is specific mention of the mandatory minimum penalties in this clause is that we wish to make it clear that it will not be open to the courts to impose a period of disqualification instead of an automatic life sentence or a mandatory minimum sentence. However, it would
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be open to them to impose disqualification as well as the automatic life or mandatory minimum sentence. I do not think it is likely that a court which has imposed a long mandatory prison sentence on a repeat offender will often feel the need to impose further punishment by way of removing his freedom to drive for a certain period, but I do not think that now is the right time to come to a final judgment that they will never do that.
As the Bill is framed, there is no possibility of amending the court's powers under these provisions in the light of the pilots. I accordingly think that it would be right to give the courts flexibility at this stage. Nothing in the clause as it stands forces the courts to impose a disqualification for non-driving offences. It is a matter for them to decide in each individual case which of the range of sentences that Parliament has made available to them would be the most appropriate. Where the courts did impose a mixture of sentence—custodial plus some driving disqualification time—the sentence as a whole must not breach the policy that the punishment should fit the crime and not be excessive.
Lord Hacking: My Lords, my noble friend provided the comfort I needed when she said that the courts will not be forced to impose these penalties and that it is a matter for the courts. I happen to have some confidence in the courts being sensible about this. I happen to have confidence that the courts will want to apply their mind to punishment fitting the crime. Therefore, I have the comfort that, although this unhappy clause will become a section in the Act, the likelihood is that the courts will not use it. Indeed, even if the courts did use it, I would hope that when the matter was taken on appeal, because there was no connection between the offence and the punishment, the Court of Appeal would take the view that it was an inappropriate sentence and would allow the appeal.
I say nothing about the Act as a whole. I used fairly censorious language earlier on, but one is also comforted by the expectation that the Act will never be brought into force by any government, whether the present Government, which I hope will be returned at the next election, or another government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 88 not moved.]
10.45 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 89:
Page 26, line 47, at end insert—
("() Where a court orders a person to be disqualified for holding or obtaining a driving licence under this section, the degree of punishment inflicted by the order, or by the combination of the order and any other order or orders made in respect of the offence, shall be such as in the opinion of the court are commensurate with the seriousness of the offence.").
The noble Lord said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 91. The noble Baroness said that she believes in punishment fitting the crime and compared the disqualification from driving with the restrictions on time or the restrictions

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on money which are imposed by the courts by way of imprisonment or fine. It is an entirely different matter to remove from someone the right to drive a motor vehicle for an offence which has nothing to do with driving.
A few moments ago, the noble Lord, Lord Hacking, said he was confident that the courts would not use a power like this. Amendment No. 89 inserts into the clause a requirement for proportionality. My fear is that the courts will use it but in different parts of the country. This is exactly the kind of provision which will become popular in one magistrates' court in one part of the county but not be used somewhere else. It is the kind of power that becomes fashionable in areas and consequently will be misused in no uncertain way.
On 20th February last the Minister said that she did not disagree in principle with the intention behind the amendment to introduce proportionality into this clause, but she thought that it was unnecessary. She suggested that non-statutory guidance on the use of disqualification for non-driving offences might be necessary and could perhaps be developed by the Magistrates' Association and the senior judiciary.
In all other types of sentencing—custody, community sentences and fines—Parliament has imposed on the courts a statutory requirement for proportionality to ensure that they do adhere to the requirement that the seriousness of the offence is matched by the sentence passed. I advance this amendment in order to ensure that the same sort of proportionality in sentencing is involved in this proposed driving disqualification.
In Amendment No. 91 I oppose the whole concept of using driving disqualification in this way. I do not wish to repeat all the arguments that I advanced in Committee on 20th February when the Minister reminded us of her trips around Cambridgeshire in a police car. She said at that time that she was impressed by the fact that a lot of people who were up to no good were driving around in motorcars and that disqualification could be used as a punishment to keep some people off the road. She thought that that would be a good thing. Again, as the noble Lord, Lord Hacking, has pointed out, powers already exist to disqualify offenders who are actually committing offences, driving around carrying out burglaries or motoring offences. Therefore, that particular argument does not constitute a valid one in favour of the clause.
For disqualification to be an appropriate punishment, there really has to be a connection with driving badly or using a vehicle to commit offences. If offences are unconnected with driving altogether, then all disqualification will do is remove from offenders the chance of rehabilitation, from other people the opportunity to travel to work and from yet others the possibility of obtaining driving jobs. The provision will impinge on different people in different ways. It will be a very unfair provision. As I say, I am fearful that this
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sort of power will be fashionable in one area of the country and will not be used in another. I wholly oppose the clause. I beg to move.
Lord Monson: My Lords, as a layman I am bound to say that I believe this to be one matter the Government have got absolutely right. Surely, we are all agreed that prison is extremely expensive, as well as being the university of crime. If one can punish people not only by community service and fines, which people may be unable to pay, but in some other manner which is not expensive to the taxpayer and which does not teach potential criminals the tricks of the trade, it must be worth while. For that reason I believe that the Government are right on this matter.
Baroness Blatch: My Lords, I am grateful to the noble Lord, Lord Monson. I agree with him that disqualification is a useful additional method of disposal for the courts and it genuinely does something about keeping people out of prison. It is a very novel addition and we hope that it will keep some people attending their work, looking after their families and not becoming a cost to the social security system.
I ask the noble Lord, Lord Thomas of Gresford, whether he is seriously suggesting that on the face of the Bill, in primary legislation, we should add an amendment to the effect that the courts should pass sentences commensurate with the seriousness of the offence. I expect courts to do that and I do not expect to put amendments on the face of the Bill to require them to do it.
Lord Thomas of Gresford: My Lords, my answer to that is that the requirement of proportionality is within the statutes of primary legislation in respect of other means of disposal. Therefore, I see no reason for drawing a distinction on that ground. However, I have made my point and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 90:
Page 27, line 4, leave out ("subsection (1) above") and insert ("this section").
The noble Baroness said: My Lords, this is a technical amendment. It simply tidies up a reference to the order-making power in Clause 36 to match a similar one in Clause 37 which cross-refers. I beg to move.
On Question, amendment agreed to.
[Amendment Nos. 91 and 92 not moved.]
Clause 37 [Fine defaulters]:
Baroness Blatch Baroness Blatch moved Amendment No. 93:
Page 27, line 31, leave out ("determinate period") and insert ("period not exceeding twelve months").
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 94. Clause 37 provides for the courts to impose a period of disqualification from driving on fine defaulters instead of a period of imprisonment. During our debate on this clause in Committee, I undertook to bring forward

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amendments on Report to provide that magistrates could not impose disqualification for longer than 12 months. That is what the amendment achieves. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 94:
Page 27, line 47, at end insert—
("(4A) The Secretary of State may by order made by statutory instrument vary the period specified in subsection (2) above; but no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament."
On Question, amendment agreed to.
[Amendment No. 95 not moved.]
Clause 38 [Disclosure of pre-sentence reports]:
[Amendments Nos. 96 to 98 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 99:
Transpose Clause 38 to after Clause 48.
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 105 and 129. The amendments fulfil the undertaking given to the noble and learned Lord, Lord Ackner, in Committee that we would reflect on his amendment to increase the maximum penalty for indecent conduct towards a child to seven years and bring forward our own proposals.
I said in Committee that no right-thinking person can regard indecent conduct towards a child with anything other than complete revulsion. We have considered carefully whether the penalty should be increased to seven years, as the noble and learned Lord, Lord Ackner, proposed, or 10 years.
As I said during the debate in Committee, the Crime and Punishment (Scotland) Bill, which is also before your Lordships' House, will increase the maximum penalty for the broadly comparable offence in Scotland to 10 years. On balance, we are persuaded that it would be preferable to follow the Scottish precedent. Accordingly, we increase the maximum penalty for this offence from two years to 10 years' imprisonment.
The other amendments are consequential, technical drafting amendments and I wish them to be inserted into the Bill. I beg to move.
On Question, amendment agreed to.
Clause 39 [Committals for sentence]:
Baroness Blatch Baroness Blatch moved Amendment No. 100:
Transpose Clause 39 to after Clause 48.
On Question, amendment agreed to.
Clause 42 [Curfew orders]:
[Amendment No. 101 not moved.]
[Amendment No. 102 not moved.]
Clause 45 [Power to make hospital and limitation directions]:
Lord Hacking Lord Hacking moved Amendment No. 103:
Page 31, line 25, leave out ("is likely to") and insert ("may")
The noble Lord said: My Lords, in those happy co-operative days in Committee, this matter was considered on the fourth day and it was no less a person than the noble Lord, Lord Dubs, who argued from the Front Bench in favour of the principle of the amendment as then drafted. I was particularly grateful to the noble Lord because, unfortunately, I had to be away in the United States of America and was not able to be here on the fourth day of Committee.
This amendment has been brought back in a revised form—and I hope that my noble friend has noted that—to deal with some of the concerns that were expressed by her and some other noble Lords in Committee when the amendment was moved. The proposed hospital direction is based on the premise that the offender, having been initially treated in hospital, will be transferred to prison to serve the rest of his or her sentence as the appropriate punishment for the crime. However, there is concern on the part of the Royal College of Psychiatrists and others that the lack of any appropriate after care and support services in prisons for people with mental disorders will result in a subsequent deterioration in their condition, often necessitating transfer back to hospital. This revolving door effect is not only contrary to the notion of continuity of care; it also conveys conflicting and confusing messages to offenders by alternatively being treated for their disorder and then punished for suffering from it. It will also prove to be far more difficult to ensure continuity of effective care from prison to the community than from hospital to the community, thus posing greater risks to the public when the offender is eventually released from prison. I made that point when speaking to earlier amendments relating to those suffering from psychiatric illness.
The proposed amendment will enable the person to continue to be dealt with as if he was subject to a hospital order with a restriction order under Sections 37 and 41 of the Mental Health Act 1983 (to which provisions I referred when moving earlier amendments). This would continue the restrictions on the person's discharge from hospital and require the Home Secretary's consent before leave of absence or discharge from hospital could be granted. While the person would have the right to apply to the Mental Health Review Tribunal, the Act imposes strict criteria on which the tribunal must be satisfied before the patient can be discharged. Indeed, there is evidence to show that offenders subject to restriction orders are detained in hospital for longer than they would otherwise have spent in prison. Therefore, there is little risk of premature discharge in appropriate cases. I beg to move.
Baroness Blatch: My Lords, I find it difficult to give a very great response to my noble friend. We have

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discussed mentally disordered offenders at some length. We believe that the package of proposals set out in the Bill offers the courts great flexibility. It ensures that proper provision is made for mentally disordered offenders. If hospital is required, then this is made possible by the Bill's provisions. I can add absolutely nothing to what has already been said. I hope that my noble friend will not press the amendment.
Lord Hacking: My Lord, I assure my noble friend at once that I do not intend to press the amendment. There is no purpose, and no likelihood of success, in doing so. I am concerned that my noble friend is not able to answer the precise points that I have raised. I hope that in one way or another this matter will be kept under consideration, because it is a very unsatisfactory state of affairs. When I first moved the amendment I was speaking also to Amendment No. 104, which I shall not move. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 105:
After Clause 48, insert the following new clause—
INCREASED PENALTY FOR OFFENCE OF INDECENCY WITH CHILDREN
(" . In subsection (1) of section 1 of the Indecency with Children Act 1960 (indecent conduct towards young child), for the words "two years" there shall be substituted the words "ten years".").
On Question, amendment agreed to.
[Amendments Nos. 106 to 109 not moved.]
Clause 50 [General interpretation]:
Baroness Blatch Baroness Blatch moved Amendment No. 110:
Page 34, line 41, leave out ("and 18") and insert (", 18 and (Violent offenders)")
On Question, amendment agreed to.
Clause 53 [Short title, commencement and extent]:
[Amendment No. 111 not moved.]
Schedule 1 [Transfer of prisoners within the British Islands]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 112 to 119:
Page 40, line 23, after ("10,") insert ("(Release on Parole Board recommendation)").
Page 40, line 24, after ("(2),") insert ("(Violent offenders)(1) and (2)").
Page 40, line 37, after ("(2),") insert (", (Violent offenders)(1) and (2)").
Page 41, leave out lines 6 and 7.
Page 41, line 16, leave out ("section 13 of this Act shall apply to him as if it") insert ("sections (Provisional early release days for remand prisoners) and (Provisional additional days for remand prisoners) of this Act shall apply to him as if they").
Page 41, line 23, after first ("to") insert ("(Release on Parole Board recommendation),").
Page 41, line 24, after ("(2),") insert ("(Violent offenders)(1) and (2)").
Page 41, line 38, after ("(2),") insert (",(Violent offenders)(1) and (2)").
The noble Baroness said: I beg to move Amendments Nos. 112 to 119 en bloc.
On Question, amendments agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 120:
Page 42, line 27, after ("30(5)") insert ("31,").
The noble Baroness said: My Lords, in speaking to Amendment No. 120, I should like to speak also to Amendments Nos. 141 to 146. The amendments are consequential on the decision that those serving sentences of three years or more should not earn early release but should instead be considered by the Parole Board for release at the five-sixths point in their sentence. I beg to move.
On Question, amendment agreed to.
11 p.m.
Baroness Blatch Baroness Blatch moved Amendments Nos. 121 to 124:
Page 43, leave out lines 1 to 4 and insert—
("(6) Any reference in—

(a) sub-paragraphs (2) and (5) above to sections 15, 18 and 19 of the 1993 Act is a reference to those sections so far as relating to supervised release orders;

(b) in the said sub-paragraph (2)—

(i) to section 31 of the 1997 Act includes a reference to any rules under section 39 of the Prisons (Scotland) Act 1989 made by virtue of subsections (13) to (16) of that section; and
(ii) to section 36 of that Act is a reference to that section so far as it relates to section 34 of that Act.").
Page 43, leave out lines 14 to 18.
Page 44, line 5, leave out from beginning to ("sub-paragraph") in line 8.
Page 44, leave out lines 21 to 23.
On Question, amendments agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 125:
Page 48, line 37, leave out ("what would be an equivalent sentence") and insert ("the time which is to be served in respect of an equivalent sentence treated as").
The noble Baroness said: My Lords, this is a minor drafting amendment correcting an oversight in the original drafting. It will ensure that a transferred prisoner will continue to receive credit for any benefits accruing in the sentence jurisdiction and that he will continue to be treated on transfer to another jurisdiction with regard to the length of his original sentence. This will avoid difficulties in changes to sentence length and therefore in the appropriate administration of different portions of the sentence which would otherwise arise. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 126:
Page 48, line 39, leave out ("and") and insert (", being either—

("(i) periods by which his sentence falls to be reduced; or

(ii) periods").

The noble Baroness said: My Lords, this is also a minor drafting amendment, designed to ensure that prisoners transferred between jurisdictions are not

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disadvantaged by slight differences in practie between Scotland, England and Wales with reference to the taking into account of remand time. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Repatriation of prisoners to the British Islands]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 127 and 128:
Page 50, line 29, at beginning insert ("Subject to sub-paragraph (2) below,").
Page 50, line 36, at end insert—
("(2) The question whether—

(a) section 11 of the Crime (Sentences) Act 1997 (award of early release days for good behaviour); or

(b) section (Release on Parole Board recommendation) of that Act (release on Parole Board recommendation),

applies in the case of the prisoner shall be determined by reference to the length of the sentence imposed in the country or territory from which he is transferred.").
On Question, amendments agreed to.
Schedule 4 [Minor and consequential amendments]:
[Amendment No. 129 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 130 and 131:
Page 60, line 20, after ("18(3)") insert ("or (Violent offenders)(3)").
Page 60, line 21, after ("sexual") insert ("or violent").
On Question, amendments agreed to.
[Amendments Nos. 132 to 135 not moved.]
Schedule 5 [Transitional provisions and savings]:
[Amendment No. 136 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 137:
Page 67, line 42, at end insert—
("Transfers of prisoners: general
In relation to any person serving a determinate custodial sentence in respect of an offence committed before the commencement of Chapter I of Part II of this Act, paragraph 6 of Schedule I to this Act shall have effect as if, in sub-paragraph (3)(b) of that paragraph, for the words "recalled to prison under the licence" there were substituted the words "recalled or returned to prison".").
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 139 and 140. These amendments ensure that, for the transitional period before the commencement of Chapter I of Part II of the Bill, the law of England and Wales can be applied to offenders transferred to Northern Ireland for recall purposes. It has been necessary to make express provision to ensure that those offenders who are convicted of an offence during the licence period can be returned to prison under Section 40 of the 1991 Act. They also rectify an error concerning the application of Section 40 to restricted transferees to Northern Ireland. Section 40 applies to determinate sentence prisoners only and these amendments ensure that it is not applied incorrectly to lifers. I beg to move.
On Question, amendment agreed to.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I should point out that if Amendment No. 138 is agreed to, I cannot call Amendments Nos. 139 and 140.
Lord Hylton Lord Hylton moved Amendment No. 138:
Page 68, leave out lines 21 to 50.
The noble Lord said: My Lords, this is a purely probing amendment. Its purpose is to demystify paragraph 9 of Schedule 5. As the paragraph refers to one chapter of two schedules to the Bill and to many sections and schedules of two other Acts, it becomes virtually unintelligible to any lay person.
It so happens that there is a significant number of laymen and others, both in England and in Ireland (North and South), who take a positive interest in the transferring of prisoners from England and Wales to Northern Ireland. Therefore, I am inviting the Minister to repeat to the House, so that it can go on the record, the substance of her letter to me on this subject of 26th February which was extremely helpful and for which I am most grateful. I beg to move.
Baroness Blatch: My Lords, I am pleased to respond to the noble Lord. For the record, the question of interjurisdictional transfers was the subject of an interdepartmental review, the Ferrers Report. The resulting report recognised the difficulties in transferring prisoners between jurisdictions which operated different sentencing policies. In particular, it was recognised that permanent transfers to Northern Ireland (which operates significantly different release arrangements from the rest of the United Kingdom) could lead to unacceptable reductions in time to serve, and that this could not be overcome save by making changes to existing legislative provision.
Accepting the recommendations contained in the report, the Government undertook to consider how the existing legislation might be amended to overcome the difficulties identified. In the meantime, increased use has been made of temporary transfers to Northern Ireland, for extended periods, for those prisoners who would otherwise benefit from a substantial reduction in time to serve if granted a permanent transfer.
Although this interim solution has been of benefit to prisoners and their families, the situation is unsatisfactory because of the need for such prisoners to apply at regular intervals for renewal of temporary periods of transfer, and for officials to reassess each such application against the transfer criteria announced to Parliament in November 1992.
The Crime (Sentences) Bill provides the first convenient opportunity to amend the existing transfer provisions (contained in the Criminal Justice Act 1961). Schedule 1 contains provisions which replace the current system of permanent and temporary transfers with one of unrestricted and restricted transfers.
Under the new system, a prisoner transferred on an unrestricted basis would become subject to the legislation applying in the receiving jurisdiction. Where,

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because of differing sentencing arrangements, an unrestricted transfer is inappropriate, a prisoner may be transferred on a restricted basis. Such a prisoner transferred from England and Wales to another jurisdiction will remain subject to the provisions of English law set out in paragraph 8(2) (for prisoners transferred to Scotland) and in paragraph 9(2) (for prisoners transferred to Northern Ireland). These provisions relate to the detention, release and any supervision conditions applicable to prisoners in England and Wales.
The new arrangements will make it possible for prisoners sentenced in one jurisdiction to serve out their sentences in another, without the need to make renewed applications to remaining the second jurisdiction. However, the arrangements will ensure that the integrity of the original sentence is preserved.
We believe it important that the current transfer provisions are replaced as quickly as possible and it is therefore intended that Schedule 1 should be brought into effect as soon as possible after the Bill receives Royal Assent. Part II of Schedule 1 is framed with reference to the provisions contained in the Crime (Sentences) Bill. These will be applicable only after the coming into effect of Chapter I of Part II of the Bill. Transitional provisions are therefore contained in paragraphs 8 to 11 of Schedule 5. These will enable transfers to take place under the arrangements set out in Schedule 1, but with reference to the application of existing legislation. Prisoners transferred from England and Wales to another jurisdiction on a restricted basis will therefore remain subject to the relevant provisions of the Criminal Justice Act 1991. Without these transitional amendments it would not be possible to effect any restricted transfers to Northern Ireland between the implementation of Schedule 1 and the coming into effect of Part II of the Bill. I hope that the noble Lord is happy to have that on the record.
Lord Hylton: My Lords, I am grateful to the Minister for her explanation, which I am sure a number of us will study with great care. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendments Nos. 139 to 146:
Page 68, line 42, leave out ("40(1), (2), (3)(b) and (4)").
Page 68, line 46, leave out ("40(1), (2), (3)(b) and (4)").
Page 69, line 8, after ("30(5),") insert ("31,").
Page 69, line 12, leave out ("section") and insert ("sections 30(5) and").
Page 69, line 22, after ("30(5),") insert ("31,").
Page 69, line 27, leave out ("section") and insert ("sections 30(5) and").
Page 69, line 53, leave out ("section") and insert ("sections 30(5) and").
Page 70, line 18, leave out ("section") and insert ("sections 30(5) and").
On Question, amendments agreed to.
Schedule 6 [Repeals]:
Baroness Blatch Baroness Blatch moved Amendment No. 147:
Page 70, line 34, column 3, at end insert—

("In section 36(1), the words "or under Part III".

In section 38, in subsection (3), the words "of Part III and" and, in subsection (6), the words "and of any enactment referred to in Part III of this Act".

In section 39, in subsection (1), the definitions of "appropriate institution" and "responsible Minister", and subsection (1A). In section 42, in subsection (1), the words "Part III except section thirty-three" and, in subsection (2), the words "Part III".")

The noble Baroness said: My Lords, this is another minor, technical amendment to ensure internal consistency in existing legislation. With the deletion of the whole of Part III of the Criminal Justice Act 1961, it is appropriate to delete subsequent references to that part of the Act which appear in Part IV of the 1961 Act. Accordingly, that is what the amendment does. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey had given notice of his intention to move Amendment No. 148:
Page 71, column 3, leave out line 19.
The noble Lord said: My Lords, this is yet another minor and technical amendment. All it seeks to do is retain the parole and remission provisions of the 1991 Act. If the Minister will promise not to tell the Home Secretary that it has been passed, then I shall not do so. Unfortunately I see that the noble Baroness will not agree. In the circumstances, therefore, I shall not move the amendment.
[Amendment No. 148 not moved.]
Then, Standing Order 44 having been suspended, (pursuant to Resolution of today's date):
Baroness Blatch: My Lords, I beg to move that the Bill be now read a third time.
I shall not detain the House other than to say that I have been enormously sustained despite the liveliness of the discussions in what was, sometimes, rather a tense atmosphere. I am grateful to all noble Lords on all sides of the House, some of whom felt very strongly about the Bill in one way or another, for their participation. I am so very grateful for the support that I have received from my own Benches, especially from my noble and learned friend the Lord Advocate and my

885
wonderful Whip who, as I said, keeps me supplied with glasses of lemonade and, from time to time, with a "Polo" mint or, if I am lucky, a chocolate. I am also grateful to the noble Lords, Lord McIntosh, Lord Rodgers of Quarry Bank, Lord Thomas of Gresford and, indeed, to all other noble Lords who have spoken in the debate.
Moved, That the Bill be now read a third time.—(Baroness Blotch.)
Lord McIntosh of Haringey: My Lords, I would rather not have the Bill at all; indeed, I would certainly rather not have it under these circumstances. I do not think that there is any way of concealing my opposition to very large parts of the Bill. Of course, there are sections in Part III of the Bill which are extremely valuable in that they provide a greater range of non-custodial sentences and will have a benefit in reducing the prison population. However, if we go back to the Financial Memorandum to the Bill and we realise that the Bill as originally drafted would have meant an increase in the prison population by the time that the process was complete—admittedly in 12 years—of 11,000 prisoners and an increased revenue expenditure, let alone capital expenditure, of between £375 million and £425 million a year, it will be understood why I quoted the noble and learned Lord the Lord Advocate earlier this afternoon. No government could implement the Bill unless there were an assurance of the resources to house and finance the increased prison population. Indeed, there is no need for me to say it if the Government have already acknowledged that fact.
I shall not make any triumphalist predictions about what will happen on 1st May, or what the situation will be thereafter. I do not think that that is appropriate in this House. However, over the four-and-a-half years in which I have been involved in Home Office matters and, in the more recent part of those years, when I have faced the noble Baroness, Lady Blatch, over the Dispatch Box, I have had cause to express very strong disagreement with her about issues and occasionally about procedures; but I have never had any reason to doubt her courtesy and the scrupulous honesty with which she has approached the duty that she has to perform. Whatever may be the future for the noble Baroness after the election, I wish her well. I should add that the Minister has been ably supported in the proceedings on the Bill by the noble and learned Lord the Lord Advocate and, indeed, by the noble Earl, Lord Courtown, to whom I also pay tribute.
Of course, during the course of the debates on the Bill, the Minister has been faced with strong and effective opposition from all parts of the House. I am sorry that none of the judges are here with us at this late hour but their contribution to our debates has been remarkable as, indeed, have been the contributions of the noble Earl, Lord Carlisle, and the noble Lord, Lord Hacking. The Liberal Democrat party has maintained its principle of civil libertarianism, if I may say so, in a relentless way—and I do not mean that in anything other than an admiring sense. I am grateful to the noble Lord, Lord Rodgers, and all of his colleagues for their contributions to the Bill.
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It is an unhappy situation that we have to let this Bill through in this way. The issues which the Bill raises will involve considerable heart searching after the election. I still do not know whether that will be done in statutory form, but something will have to be done about the provisions of this Bill.
11.15 p.m.
Lord Rodgers of Quarry Bank: My Lords, I shall not say much further at this late hour, which is nevertheless a much earlier hour than we anticipated at one stage. I hope noble Lords will forgive me if I quote from the beginning of my speech at Second Reading when I said I thought this was,
"a had Bill with few redeeming features, foolishly conceived, wrong in principle and deceptive in its relevance to the real fight against crime".[Official Report, 27/1/97; col. 980.]
I have to say that nothing between Second Reading and Third Reading makes me resile from that view.
It is a better Bill for the debates we have had and the amendments we have made. It would have been better still had we been able to make more amendments and indeed been able to scrutinise the Bill with the attention it deserved. What its future is is not for me to say, and all of us can speculate, but I hope it does not represent a major change in penal policy and that we shall revert in due course to what the noble Lord, Lord McIntosh, called a more libertarian view—because I think it is a more realistic one—of how we should deal with these matters.
I agree with the noble Lord, Lord McIntosh of Haringey, in that I, too, have admired, as always, the formidable persistence of the noble Baroness, Lady Blatch. She is a tough customer in the best possible way and a loyal and unwavering servant of her colleague the Home Secretary. He is fortunate that she has represented him here.
I admired, on this Bill as on others, the persistence of the noble Lord, Lord McIntosh—at least until today. He was quite right to draw attention to the part played in the progress of the Bill by some who are not present. He mentioned the noble Lord, Lord Carlisle, and the noble Lord, Lord Hacking. I am sure he was right to mention the remarkable contributions of the noble and learned Lord, Lord Bingham, and the persistence—to use the word again—of the noble and learned Lord, Lord Ackner. They and others have contributed to interesting debates which we now have to bring to a conclusion.
I have been immensely grateful for the assistance given by my noble friends Lord Thomas of Gresford, Lord Mar and Kellie and Lord Russell, who played a notable part in this Bill. We shall see what the future holds, but at least we have debated some important issues and I hope that in the Official Report our deliberations will be read in memory of what we have done.
Lord Carlisle of Bucklow: My Lords, I shall remember for all time this brief debate on Third Reading in that I believe I have not only been promoted to the hereditary peerage by the noble Lord, Lord McIntosh,

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but apparently made an Earl as well. I am grateful, but that obviously means he wishes to get rid of me as quickly as possible should Labour win the next election.
As someone who has been involved in this Bill and has—I accept—been a thorn in the side of my party, I hope those on my Front Bench will accept that my views on this Bill have been sincere and genuinely held. I hope my noble friend the Minister will not have thought at any time that my remarks were meant personally against her. I have tremendous admiration for the way she has had to carry not only this Bill but several other controversial Home Office Bills through the final few months of this Parliament.
Like the noble Lord, Lord McIntosh, and particularly the noble Lord, Lord Rodgers, I cannot pretend I am persuaded that this Bill is right. However, I am grateful for the courtesy that my noble friend has shown to us throughout in the debates we have had.
Lord Hacking: My Lords, I begin my brief words by joining my noble friend Lord Carlisle in thanking the noble Lord, Lord McIntosh, for elevating me as an hereditary Peer to an earldom, and I graciously accept the elevation.
I am also grateful for the kind remarks of the noble Lord, Lord McIntosh. I was also a great supporter and admirer of him until today and, no doubt, my admiration and support will return on other days. The fact is that the noble Lord, Lord McIntosh, has not been able to show us his great parliamentary skills today in arguing so many of the amendments that we would have wished him to argue with us.
I wish particularly to direct my comments to the Minister. It has been my painful and indeed awkward task during the course of this Bill frequently to disagree with my noble friend and with many provisions in the Bill. Spurred by great hilarity at an earlier stage in our proceedings, I used rather stronger language about the Bill than I would do now. It is a Bill with which I am not happy, and I wish that it had been considered much further. I hope my noble friend will accept that the concerns I have expressed, whether I have used temperate or intemperate language, have been real and genuine concerns. Nobody who has sat throughout this debate, as have I and other noble Lords, could have failed to notice the meticulous care that my noble friend paid to every single amendment and, indeed, how extremely well she was briefed. She even noticed that I had decoupled some amendments last night when speaking to her office and then coupled them together again in the debate today. That transgression did not pass the eyes of my noble friend, and is one example of the meticulous care and courtesy that she has shown throughout the proceedings.
I have only one other observation to make, and I am invited to do so by my noble friend Lord Cranborne, the Lord Privy Seal, who said that this was the stage at which to comment upon the application of the Motion that your Lordships carried earlier today to enable us to truncate our proceedings on this Bill, so that now we are speaking on Third Reading although, a few minutes earlier, we were still dealing with the Report stage.
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I hope my noble friend the Leader of the House and indeed the noble Lord the Leader of the Opposition will read these observations. I have been in your Lordships' House as an hereditary Peer for some time, and I can say quite clearly that, while the Motion itself is not unprecedented, what has been quite unprecedented is the volume and complexity of Bills that have been swept in under this Motion, and many of those Bills are highly controversial.
I have a very clear memory of the end of the Conservative Government in 1974. At that time, several heavy Public Bills were being considered by either this House or another place. I remember particularly the road traffic Bill. There was no attempt whatever in taking any heavy Public Bills through on any truncated system, and any arrangements which were then made through the usual channels did not involve that. Indeed, I well remember that with the road traffic Bill the Conservative Government of the day allowed it to drop, although it was a big Bill. Then a Labour Government succeeded and they actually picked up that Bill to such a point that I can almost hear the noble Viscount, Lord Colville of Culross, who was then the Minister, through the mouth of the Labour Minister, who was then picking up the brief of the noble Viscount, Lord Colville.
I also have a very clear recollection of 1979, when again a government ended. I have a very clear recollection that no heavy Bills were taken through on the nod and no controversial Bills were taken through. The only agreement that was made between our House and the other place through the usual channels was to take uncontroversial Bills. I remember that particularly well because the Arbitration Bill was before your Lordships' House at that time and, as part of the agreement through the usual channels, the House of Commons did not consider the Arbitration Bill at all. I believe that the Arbitration Bill was a great deal better for its having been considered only by your Lordships.
I am fearful about a precedent being created by what has occurred today. I hope that noble Lords and leaders of both sides of the House will read my observations. My memory is accurate about the events in 1974 and 1979. I hope that this will never be repeated. It is a thoroughly bad precedent.
I emphasise that noble Lords on the Front Benches had this problem dumped on them from another place. I hope that these matters will not be dumped on us again and that this will be a one-off and not a precedent.
The Earl of Mar and Kellie: My Lords, it is somewhat ironic that this is the first time I have spoken tonight. But for certain developments during the day, I think that we would have been discussing amendments. However, I may make up for that during discussion on the Crime and Punishment (Scotland) Bill.
I congratulate the noble Baroness and the Front Bench team. I wondered quite what was in the lemonade on occasions. I have two points. First, I believe that the early release scheme will be difficult to sell to prisoners. They will take a lot of persuasion that the provision may

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not be as bad as it looks. Secondly, on a more hopeful note, the search for better and more effective community sentences must go on.
Earl Russell: My Lords, in this business, as in tennis, one of the things that really matters is one's relationship with the player the other side of the net. Perhaps I may say to the noble Baroness that I have been delighted to have her the other side of the net. Every time we are opposite each other, my respect for her integrity, her persistence, her determination and her attention to the business rises. The noble Baroness said tonight that those of us who were opposed to the Bill had shown a dogged determination. Perhaps I may pay her the compliment of saying that I believe we are not alone in that. I believe that no one will expect me to say any good word about the Bill. It is a much worse Bill than I thought when we first embarked upon it at Second Reading. I do not believe that it will protect the public but rather the opposite. If it ever comes into effect, I believe that its cost will be exorbitant—far greater than any of the estimates which have been put before us. As do others, I believe that it is highly unlikely that the Bill will ever come into effect. I wonder, therefore, exactly what purpose has been served in rushing it through this House.
The noble Lord, Lord Hacking, was worried about his intemperate use of language. Worse language was used in this House in 1610 by none other than the most reverend Primate the Archbishop of Canterbury, who expressed a wish that the Bill before the House be committed to the pit of hell. I shall not follow him down that path.
I am sorry that the noble Lord, Lord Hacking, and the noble and learned Lord, Lord Ackner, were not content with the deal which we reached earlier this evening. My noble friends believed, and I believe, that it was the best available in the circumstances and, therefore, that there was a strong case for reaching it. I should like to repeat my thanks to all those—they are more numerous than I can now mention—who were involved in reaching it. It is at least something solid. I am sorry that there is disagreement between us, but in any matter of judgment that is, I think, inevitable. However, I will say to the noble Lord. Lord McIntosh, and through him his noble friends, and honourable friends, and friends in other places, that the mere fact that this deal has been improved shows that they did not try hard enough. As a pure hypothesis, let us suppose that in five years' time they are sitting opposite where I now stand. I wonder whether they will find the Opposition quite so forbearing in the last week of the next Parliament. Personally, I should be a little surprised. I do not think they tried.
I will not follow the noble Lord, Lord Hacking, down the path of discussing in detail the deal which was reached, but I believe that in any future deals we must ensure that this House, including the Cross-Benches, has a much fuller input into any agreement reached than it appears to have had on this occasion. I wondered earlier this afternoon whether it had done as much to diminish the standing of this House as anything proposed by the Opposition. I am thankful that at least some of that has been put right.
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On these Benches I have been extremely glad to have enjoyed the co-operation of my noble friend Lord Thomas of Gresford. This is his first very big Bill; it will not be the last. Welcome.
I should like to congratulate my noble friend Lord Rodgers of Quarry Bank, who has had as distinguished a session as any I can remember enjoyed by anyone on these Benches, not just on this Bill but all the way through the session.
My noble friend the Earl of Mar and Kellie has always been there, has always known about the detail of the obscurest point we have been discussing and has been a tower of strength throughout.
I should like to thank all others who have taken part—most notably the noble and learned Lord, Lord Bingham of Cornhill—for the intellectual distinction which, from every part of the House and from every angle, they have brought to the debates. I for one remain proud to have taken part in them.
Lord Thomas of Gresford: My Lords, perhaps I may take the opportunity of expressing my complete admiration for the Minister for the hard work which she has put into this Bill and her attention to detail. I have appreciated the way in which she has dealt with some perhaps impetuous interruptions from me. I congratulate her on the way she has steered the Bill through the House.
I have also been much impressed by the contributions of the noble Lords, Lord Carlisle and Lord Hacking, from the Government Benches. They have put forward their point of view with great courage in the position in which they found themselves and have supported amendments which have been pressed upon the Government from all sides of the House.
It has been a particular pleasure for me to work with the noble and learned Lord, Lord Ackner, and to listen to the contribution of the noble and learned Lord, Lord Bingham, who, I thought, gave the best speeches I have heard in this House since I so recently arrived.
I have also been much impressed by the hard work put in by the noble Lord, Lord McIntosh of Haringey. I regret that he was not with us all the way to the bitter end, but certainly his contribution has been immense.
Perhaps I may say to those with whom I have worked on these Benches that I am very grateful to have been a member of the team so ably led by my noble friend Lord Rodgers, supported by the noble Earls, Lord Mar and Kellie and Lord Russell. I have been much instructed in the 17th century by the noble Earl, Lord Russell, and I am sure that that will stand me in good stead.
Finally, perhaps I may offer my personal thanks to the noble Earl, Lord Courtown, for the assistance that he has given to me from time to time, putting me right when I have got things wrong.
Baroness Blatch: My Lords, perhaps I may thank all noble Lords for their most generous comments. I hope they will forgive me if I couple with those comments my officials, who have also burned a great deal of midnight oil, not only in serving me but also in making sure that all noble Lords were properly informed on some of their more technical points.

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I believe that this is an important Bill. It addresses some very serious concerns in the community about violent offences, dealing in Class A drugs and persistent burglaries. I wish it well. At least it will now go on the Statute Book, I believe, as a result of the accommodation reached by all noble Lords and those in another place. I commend the Bill to the House.
On Question, Bill read a third time.
Baroness Blatch: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Blatch.)
On Question, Bill passed, and returned to the Commons with amendments.

Architects Bill [H.L.]
Returned from the Commons agreed to.
Lieutenancies Bill [H.L.]
Returned from the Commons agreed to.
Nurses, Midwives and Health Visitors Bill [H.L.]
Returned from the Commons agreed to.
Justices of the Peace Bill [H.L.]
Returned from the Commons agreed to.
Transfer of Crofting Estates (Scotland) Bill [H.L.]
Returned from the Commons agreed to with a privilege amendment; the amendment considered and agreed to.

Social Security (Recovery of Benefits) Bill [H.L.]
Returned from the Commons agreed to with a privilege amendment; the amendment considered and agreed to.
House adjourned at twenty-five minutes before midnight.