Crime (Sentences) Bill

HL Deb 18 March 1997 vol 579 cc841-91

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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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, 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 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 Amendment No. 20:

Page 7, line 7, leave out subsections (2) and (3) and insert— ("(2) For—

1. (a) the period of two months beginning with the day on which he was sentenced, and
2. (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 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 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 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 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—

1. (a) which are alleged to have been committed after the commencement of this Chapter: and
2. (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—

1. (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;

1. (b) any days falling after that day for which he is not remanded in custody were disregarded; and
2. (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—

1. the accused is convicted of, or of an offence related to, the offence or any of the offences;
2. (b) he is sentenced to imprisonment for a term of more than two months and less than three years; and
3. (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—

1. (a) the accused had been convicted and sentenced on the day on which he was remanded in custody;
2. (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
3. (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—

1. (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
2. (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—

1. (a) the prisoner had been in prison; and
2. (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 moved Amendment No. 30:

Page 8, line 8, leave out ("entitled to be released") and insert—

1. ("(a) entitled to be released under section 11 above; or
858
2. (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 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—

1. (a) which are alleged to have been committed after the commencement of this Chapter; and
2. (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—

1. (a) had been convicted of, or of an offence related to, the offence or any of the offences; and
2. (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—

1. (a) the accused is convicted of, or of an offence related to, the offence or any of the offences;
2. (b) he is sentenced to imprisonment for a term of more than two months; and
3. (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 moved Amendment No. 34:

Page 10, line 2, leave out ("served") and insert ("been liable to serve").

On Question, amendment agreed to.

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 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 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 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—

1. (i) requires the offender to live in an approved probation hostel; or
2. (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 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 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 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 moved Amendment No. 46:

After Clause 18, insert the following new clause—

VIOLENT OFFENDERS

(" .—(1) Subsection (2) below applies where—

1. (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
2. (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—

1. (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;
2. (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 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 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 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 moved Amendment No. 55:

Page 15, line 42, after ("Kingdom") insert—

1. ("(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
2. (b)")

On Question, amendment agreed to.

Clause 23 [Continuity of sentencing]:

[Amendments Nos. 56 to 58 not moved.]

10 p.m.

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 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"; 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 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 moved Amendment No. 61:

Page 17, line 39, after ("18(3)") insert ("or (Violent offenders)(3)").

On Question, amendment agreed to.

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. 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.

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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 moved Amendments Nos. 121 to 124:

Page 43, leave out lines 1 to 4 and insert— ("(6) Any reference in—

1. (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;
2. (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 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 moved Amendment No. 126:

Page 48, line 39, leave out ("and") and insert (", being either—

1. ("(i) periods by which his sentence falls to be reduced; or
2. (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 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 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—

1. (a) section 11 of the Crime (Sentences) Act 1997 (award of early release days for good behaviour); or
2. (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 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 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 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, 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 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 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 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 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.

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, 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.

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 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.

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.

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.