HL Deb 19 March 1997 vol 579 cc950-67

Membership

1. Her Majesty shall, on the recommendation of the Secretary of State, appoint one of the members of the Commission to be the chairman of the Commission.

2.—(1) Subject to the following provisions of this paragraph, a person shall hold and vacate office as a member of the Commission, or as chairman of the Commission, in accordance with the terms of his appointment.

(2) An appointment as a member of the Commission may be full-time or part-time.

(3) The appointment of a person as a member of the Commission, or as chairman of the Commission, shall be for a fixed period of not longer than five years.

(4) Subject to sub-paragraph (5) below, a person whose term of appointment as a member of the Commission, or as chairman of the Commission, expires shall be eligible for re-appointment.

(5) No person may hold office as a member of the Commission for a continuous period which is longer than ten years.

(6) A person may at any time resign his office as a member of the Commission, or as chairman of the Commission, by notice in writing addressed to Her Majesty.

(7) Her Majesty may at any time remove a person from office as a member of the Commission if satisfied—

  1. (a) that he has without reasonable excuse failed to discharge his functions as a member for a continuous period of three months beginning not earlier than six months before that time;
  2. (b) that he has been convicted of a criminal offence;
  3. (c) that a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditors; or
  4. (d) that he is unable or unfit to discharge his functions as a member.

(8) If the chairman of the Commission ceases to be a member of the Commission he shall also cease to be chairman.

Members and employees

3.—(1) The Commission shall—

  1. (a) pay to members of the Commission such remuneration;
  2. (b) pay to or in respect of members of the Commission any such allowances, fees, expenses and gratuities; and
  3. (c) pay towards the provisions of pensions to or in respect of members of the Commission any such sums,
as the Commission are required to pay by or in accordance with directions given by the Secretary of State.

(2) Where a member of the Commission was, immediately before becoming a member, a participant in a scheme under section I of the Superannuation Act 1972, the Minister for the Civil Service may determine that his term of office as a member shall be treated for the purposes of the scheme as if it were service in the employment or office by reference to which he was a participant in the scheme; and his rights under the scheme shall not he affected by sub-paragraph (1)(c) above.

(3) Where—

  1. (a) a person ceases to hold office as a member of the Commission otherwise than on the expiry of his term of appointment; and
  2. (b) it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation,
the Secretary of State may direct the Commission to make to him a payment of such amount as the Secretary of State may determine.

4.—(1) The Commission may appoint a chief executive and such other employees as the Commission think fit, subject to the consent of the Secretary of State as to their number and terms and conditions of service. (2) The Commission shall—

  1. (a) pay to employees of the Commission such remuneration; and
  2. (b) pay to or in respect of employees of the Commission any such allowances, fees, expenses and gratuities,
as the Commission may, with the consent of the Secretary of State, determine. (3) Employment by the Commission shall be included among the kinds of employment to which a scheme under section 1 of the Superannuation Act 1972 may apply.

5. The Commission shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to paragraph 3(2) or 4(3) above in the sums payable out of money provided by Parliament under the Superannuation Act 1972.

Procedure

6.—(1) The arrangements for the procedure of the Commission (including the quorum for meetings) shall be such as the Commission may determine. (2) The arrangements may provide for the discharge, under the general direction of the Commission, of any function of the Commission—

  1. (a) in the case of the function specified in sub-paragraph (3) below, by a committee consisting of not fewer than three members of the Commission; and
  2. (b) in any other case, by any committee of, or by one or more of the members or employees of, the Commission.
(3) The function referred to in sub-paragraph (2)(a) above is making a reference to the High Court under section 194B of this Act. (4) The validity of any proceedings of the Commission (or of any committee of the Commission) shall not be affected by—
  1. (a) any vacancy among the members of the Commission or in the office of chairman of the Commission; or
  2. (b) any defect in the appointment of any person as a member of the Commission or as chairman of the Commission.
 (5) Where—
  1. (a) a document or other material has been produced to the Commission under section 1941 of this Act, or they have been given access to a document or other material under that section, and the Commission have taken away the document or other material (or a copy of it); and
  2. (b) the person who produced the document or other material to the Commission, or gave them access to it. has notified the Commission that he considers that its disclosure to others may be contrary to the interests of national security,
the Commission shall, after consulting that person, deal with the document or material (or copy) in a manner appropriate for safeguarding the interests of national security.

Evidence

7. A document purporting to be—

  1. (a) duly executed under the seal of the Commission; or
  2. (b) signed on behalf of the Commission,
shall be received in evidence and, unless the contrary is proved, taken to be so executed or signed.

Annual reports and accounts

8.—(1) As soon as possible after the end of each financial year of the Commission, the Commission shall send to the Secretary of State a report on the discharge of their functions during that year. (2) Such a report may include an account of the working of the provisions of Part XA of this Act and recommendations relating to any of those provisions. (3) The Secretary of State shall lay before each House of Parliament. and cause to be published, a copy of every report sent to him under sub-paragraph (1).

9.—(l) The Commission shall—

  1. (a) keep proper accounts and proper records in relation to the accounts; and
  2. (b) prepare a statement of accounts in respect of each financial year of the Commission.

(2) The statement of accounts shall contain such information and shall be in such form as the Secretary of State may, with the consent of the Treasury, direct.

(3) The Commission shall send a copy of the statement of accounts to the Secretary of State and to the Comptroller and Auditor General within such period after the end of the financial year to which the statement relates as the Secretary of State may direct.

(4) The Comptroller and Auditor General shall—

  1. (a) examine, certify and report on the statement of accounts; and
  2. (b) lay a copy of the statement of accounts and of his report before each House of Parliament.

10. For the purposes of this Schedule the Commission's financial year shall be the period of twelve months ending with 31st March; but the first financial year of the Commission shall he the period beginning with the date of establishment of the Commission and ending with the first 31st March which falls at least six months after that date.

Expenses

11. The Secretary of State shall defray the expenses of the Commission up to such amount as may be approved by him.".")

The noble and learned Lord said: My Lords, 1 spoke to this amendment with Amendment No. 22. 1 beg to move.

On Question, amendment agreed to.

Clause 28 [Evidence of vulnerable persons: special provisions]:

The Earl of Mar and Kellie moved Amendment No. 27: Page 36, line 44, at end insert— ("(iv) who would be unable to give evidence in open court:7).

The noble Earl said: My Lords, this amendment to Clause 28 is aimed at extending the range of people who can be accepted as being vulnerable. At Committee stage the noble and learned Lord the Lord Advocate said that the list in the Bill was being kept tight because objective criteria were needed for ease of operation. While I certainly understand his point, I am keen that the Bill should be made to address the whole problem. The tight criteria of the Bill will certainly be operable, but it will also lead to many witnesses suffering unnecessarily and, even worse, not giving evidence.

This failure to address the whole problem will not assist in the achievement of justice. I believe that the courts will want to experiment with my wider description of vulnerable people. I believe that many citizens are terrified of the judicial process and that serious efforts must be made to explore how far vulnerable people can be enabled to give evidence. I beg to move.

The Earl of Balfour

My Lords, before my noble and learned friend replies, what happens if somebody is unable to speak and wishes to give evidence in writing? Is that possible in court? I really do not know.

Lord Mackay of Drumadoon

My Lords, the short answer is that that is correct. Indeed, I have some personal recollection of that happening. Before it could occur, the judge would have to be satisfied that the witness could understand the questions that he or she would be asked and that he or she was unable to communicate his or her thoughts, except in writing, and before that could be established it may be necessary for the court to take evidence (whether orally or by way of a report from someone who knows the witness in everyday life and who is able to assure the court that the witness is fully qualified to follow the proceedings of the court). I have some recollection of seeing that done. Indeed, it happens frequently when there is some concern about a witness's address. The witness can be asked to write down his or her address, which is then shown to the judge and the lawyers but is not read out in open court. I am satisfied, therefore, that our existing court procedures fully meet the concerns of my noble friend.

The noble Earl's amendment would have the effect of providing for any category of person to give evidence on commission by means of live television link or behind screens. It could apply, for example, to someone who, for a variety of reasons, is unable to be present in court. Perhaps I may take some fairly extreme examples to illustrate the point. Someone could be physically absent from the jurisdiction on a pre-arranged business trip, because of a holiday or for a variety of other reasons. Clearly, it would be wrong to put on the face of the statute a provision which could be construed on that basis.

There are already provisions for dealing with vulnerable witnesses, and we have already covered those. There are already provisions for taking evidence on commission.

This amendment comes rather late in the day and has potentially undesirable consequences. Therefore, I invite the noble Earl to withdraw it. From what I said in Committee, I hope it is clear that the Government are aware of the problems of vulnerable witnesses. Some progress has been made and, in the light of experience during the next few years, it may be possible to take that further. However, I believe that we have gone far enough for the moment and that the right approach is to bring these provisions into force, to see how they work and, if there is cause for extending them, to look at the matter again.

Lord Harris of Greenwich

My Lords, before the noble and learned Lord sits down, I wonder whether I may ask him one question. Obviously, we shall not press the amendment, but what is the position of a woman who is alleged to have been raped? Can arrangements be made to have her screened off from the assailant? I ask this not having followed the details of the previous argument, but because I believe that it would be helpful if the noble and learned Lord could explain the matter.

Lord Mackay of Drumadoon

My Lords, not purely arising from the fact that she is the victim of a rape or alleged rape—"the complainer" as we would call her in Scotland or, if the lady is under 16, a child—such provisions would already apply. If the lady were to fall under the new provisions extending the definition of "vulnerable witnesses", such arrangements would apply if the appropriate application was made to the court. However, if we are dealing with a lady of mature years who does not fall within the category of "vulnerable witnesses" as defined in the Bill, there is no provision in Scotland at the moment which would allow that to happen.

Lord Harris of Greenwich

My Lord, before the noble and learned Lord sits down, I repeat that we shall not be pressing the matter but I would be grateful if the noble and learned Lord could look into this. He will be aware that many women—of mature years, I might add—find extremely alarming the idea of being confronted in court by a man who may have subjected them to a violent attack and humiliation. I should be grateful if the noble and learned Lord could consider the matter not in relation to the Bill, but as a general principle.

Lord Mackay of Drumadoon

My Lords, I am happy to give the assurance that the Crown in Scotland will keep that and other matters under close review.

The Earl of Mar and Kellie

My Lords, I accept that my amendment was much too wide. I accept also that the Bill makes some progress in the direction in which we should be moving. I suppose that I am giving notice to whomsoever will be responsible for the next Criminal Justice (Scotland) Bill that I shall be back with this type of amendment. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Continuity of sentencing]:

Lord Mackay of Drumadoon moved Amendment No. 28: Leave out Clause 32.

The noble and learned Lord said: My Lords, Clause 32, which the amendment seeks to delete, is a new clause which was tabled in Committee by the noble and learned Lord, Lord McCluskey. It sought to introduce into the Bill a clause which for all practical purposes was identical to Clause 23 of the Crime (Sentences) Bill. It was inserted into the Bill against the wishes of the Government and against the advice of the noble and learned Lord, Lord Hope of Craighead. I understand that the Government are not the only people to have been reflecting on the contents of this Bill during the past few days. I understand that there is a wide measure of support for the view that it would be undesirable for this provision to form part of the law of Scotland. For that reason, and without going into any great detail, I trust that the amendment will be acceptable to your Lordships. I beg to move.

On Question, amendment agreed to.

Clause 33 [Application of provisions with respect to early release]:

Lord Mackay of Drumadoon moved Amendment No. 29: Page 39, line 41, after ("1993 Act") insert (", and the amendments made to the 1995 Act by paragraph 17(3) of Schedule Ito this Act").

The noble and learned Lord said: My Lords, this is purely a technical drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 34 [Early release]:

The Earl of Mar and Kellie moved Amendment No. 30: Page 41, line 9, at end insert ("and "prescribed minimum standard" means that the prisoner has not been charged with a disciplinary offence or been placed on report").

The noble Earl said: My Lords, my Amendments Nos. 31 and 44 have been grouped with this amendment. They take us back to prison and focus again on the subject of the assessment criteria for good behaviour. In Committee, it was established that the criterion specified in my earlier amendments, which stated that the "prescribed minimum standard" was achieved by not having an offence against the Prison (Scotland) Rules proved, was too low. I have now raised that criterion. This time, being charged and placed on report becomes the criterion. The noble and learned Lord the Lord Advocate told us in Committee that the minimum prescribed standard was effectively floating above my objective standard of a proven offence against the prison rules.

I am still trying to find objective criteria that can be set down in the Bill and understood by the prisoners and prison officers who have to live with the rules. I believe that we can do it. I believe that we can introduce a specification into the Bill which describes what we really mean.

Perhaps I may move on to Amendment No. 31, which tries to establish who can sort out the assessments of good behaviour. If the scheme is to work, prison officers and prisoners will need to have confidence in it. In Committee, several amendments were proposed which called for outside agencies to carry out the assessment procedures. All those amendments were rejected. We were told that the task was to be carried out by the Scottish Prison Service. This amendment therefore clarifies the point and states that the function should be carried out by senior members of the prison staff. They are the people who are expected to carry out executive functions on a day-to-day basis within a prison. It is perfectly normal for staff at governor grade to convene meetings and to achieve decisions based on the reports of prison officers. I do not understand why the Bill is so imprecise and I do not believe that that is necessary.

Finally, I turn to my Amendment No. 44, which seeks to ensure that the Secretary of State does not implement the early release scheme until the Scottish Prison Service is capable of withstanding the substantial change involved. With the differing provision in regard to the desirability of sentence reduction, sentences in Scotland will become longer. The increased prison population will be a major burden to shoulder without the imposition of a new liberation scheme that will be a hard sell to prisoners. I look for reassurance on this matter. I beg to move.

5.30 p.m.

Lord Mackay of Drumadoon

My Lords, Amendment No. 30 seeks to define the prescribed minimum standard for the purposes of the early release provisions as meaning that the prisoner has not been charged with a disciplinary offence or placed on report. The result, which I am sure the noble Earl does not intend, would be that the mere suspicion of misconduct would mean that a prisoner had not reached the prescribed standard, even if he were subsequently acquitted of the charge. Even if this technical problem were dealt with and the minimum standard were to be defined as an absence of proved misconduct reports, we do not believe that the amendment would be desirable.

The earning of early release should be about more than simply not breaching prison discipline. Prisoners should be required to demonstrate positive good behaviour and that they are making constructive use of their time in prison in order to address their offending behaviour. As appropriate, that might mean participating in a programme on drug addiction or anger management, as well as working productively in the prison workshops. We therefore intend to set out in the prison rules a wider definition of the prescribed minimum standard. That will provide a real incentive to prisoners to make a positive effort to co-operate with the prison regime and tackle their problems.

Amendment No. 31 seeks to define the prescribed person in relation to assessments for early release as a person of governor grade. The Government have no problem with the spirit of this amendment, in that they envisage that these assessments will be made by a board chaired by a senior manager. The problem is a technical one, in that since April 1995 some of the senior managers in prisons are no longer described as governor grades but have the job description "managers". I hope that the noble Earl will withdraw his amendment if I assure him that the prison rules, which are required to be in place before these provisions have effect, shall provide for assessments to be made by a governor or a senior manager after an assessment board has met to consider the case.

I turn to Amendment No. 44 which I believe is also grouped with manuscript Amendment No. 43B that may or may not be moved. The Government have always been open about the likelihood that substantial numbers of additional prison places will be needed as a consequence of their proposals on honesty in sentencing. That was a matter discussed in some detail at the Committee stage of the Bill. The financial memorandum states that these may amount to as many as 2,200 five years after implementation, depending on how the courts sentence under the provisions set out in the Bill and the effect on the behaviour of offenders.

The Government have consistently said—your Lordships were reminded of it yesterday by the noble Lord, Lord McIntosh—that they do not intend to bring these provisions into effect until additional places are available. Clearly, that is unlikely to be before the end of the century. The Scottish Prison Service is already planning ahead to accommodate whatever the future may hold. The service will clearly be closely involved with all the decisions regarding the implementation of these provisions. Its involvement is an administrative matter with which we believe it would be inappropriate to deal on the face of the Bill as proposed by Amendment No. 44.

For similar reasons we also consider that it would be inappropriate to make the provision proposed by Amendment No. 43B. The relationship between the design capacity of the prisons and the prison population over the past three months is one factor to be considered before commencing the provisions, but it is not the only one. The number of new places that are about to come on stream will be even more important. The Government shall set themselves a tougher test than is proposed by this amendment as far as concerns the early release provisions.

For the benefit of noble Lords who do not have a list of the manuscript amendments, manuscript Amendment No. 43B proposes that the following words be inserted: No statutory instrument made under [Section 65] shall be made bringing into force [certain specified sections] … unless—

  1. (a) the Secretary of State is satisfied that the average daily prison population in Her Majesty's Prisons in Scotland has not exceeded the current design capacity of those prisons by more than 10 per cent. at any time during a continuous period of three months, and
  2. (b) Her Majesty's Government has published the appropriate statistics as to the average daily prison population and the current design capacity and placed them in the library of [another place]".
The terms of that amendment illustrate our concerns. For that reason, we find all of these amendments unacceptable. I hope that they will not be pressed.

Lord Kirkhill

My Lords, before the noble and learned Lord sits down, perhaps I may put a question. If the capacity runs at the 10 per cent. level of which he speaks for a period of three months and then the provisions in the statutory instrument are initiated, where do these prisoners sleep—on mattresses in corridors and so on?

Lord Mackay of Drumadoon

My Lords, where they sleep is a matter for the governor of a particular institution. It is an unhappy fact of life that there has been overcrowding in prisons. It has reduced but it remains a problem. Undoubtedly, in some institutions more prisoners sleep in cells than was originally intended. No doubt on occasions the facilities leave something to be desired. But to suggest that people regularly sleep on mattresses in prison corridors is not an accurate description of the state of the prison estate in Scotland. There is a measure of overcrowding and it is being addressed.

I hope that the noble Lord will accept my assurance—which I am sure will be received with sympathy by noble Lords on all sides of the House—that these provisions will not be introduced until any increased prison population that may result can be accommodated by the estate. One hopes that as slow but steady progress is made in dealing with the overcrowding that presently afflicts our prisons, by the year 2000, whenever, if in the past there had been occasions when people slept on mattresses in corridors that would not occur at that stage.

The Earl of Mar and Kellie

My Lords, I thank the noble and learned Lord for his answers. I am disappointed by his reluctance to define "minimum prescribed standards of behaviour". That will have to be worked out somewhere else eventually. In regard to the amendment dealing with governors, the noble and learned Lord is quite right. My terminology is slightly out of date in regard to prison staff. I have been visiting prisons for a while, and I still visit prisons. I will make certain about that in future.

Referring to the final amendment dealt with by the noble and learned Lord, one knows that there are plans to build a private prison in Kilmarnock. That suggests that there will be an increase in prison places. One notes that at present the prisons in Scotland are full so perhaps judges are doing the business. I suspect that the measures introduced by this Bill which provide other ways of dealing with fine defaulters and may be implemented sooner than some other measures, will remove a large number of fine defaulters from prison and help to reduce overcrowding. That said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

[Manuscript Amendment No. 31A not moved.]

Clause 49 [Criminal Legal Assistance]:

[Amendments Nos. 32 and 33 not moved.]

Clause 50 [Employment of solicitors in relation to criminal legal assistance]:

The Earl of Mar and Kellie moved Amendment No. 34: Page 66, line 23, leave out ("require") and insert ("give the opportunity to").

The noble Earl said: My Lords, I shall speak also to Amendment No. 35. The amendment has been suggested to me by the Glasgow Bar Association. Here we are talking about changes in legal aid. It seeks to soften the impact of the Bill in respect of ordering accused persons to go to the proposed Legal Aid Board employed solicitors. I can see the general idea that the board's salaried solicitors should be fully employed. That is generally sensible, but there are bound to be occasions when accused persons do not get on with, or do not have faith in, certain solicitors. We all recognise that. It happens already. It will happen in the future. Amendment No. 34 meets the problem head on and supplies a solution.

Amendment No. 35 was, again, suggested by the Glasgow Bar Association. I recognised the concept of a standard fee being offered for legal aid work. The administrative merits stare us in the face. But there will also be occasions when the standard fee will be woefully inadequate. I recognise that a busy office doing a great deal of legal aid work will enjoy the swings and roundabouts effect, but that will not be true of the office which does little criminal legal aid work or the new firms which are just starting up, and have cashflow problems. The amendment lives within the strictures of the fixed payment scheme. It seeks to clarify the position regarding disproportionately extensive and expensive cases. I beg to move.

Lord Mackay of Drumadoon

My Lords, Amendment No. 34 is unacceptable. The Government have already explained in some detail the necessity for the Secretary of State to be able to give the board power to direct applicants for criminal legal assistance to directly employed solicitors. Given that the pilot scheme provided for in Clause 50 must be evaluated within three years, it will be essential to ensure an adequate build up of business in the initial stages. That cannot be done without a power of direction. The amendment would remove such a power.

The noble Earl raises on behalf of the Glasgow Bar Association a practical problem which is one of the issues that will be looked at in any pilot scheme. I have no doubt that given good will and common sense on all sides, particularly by solicitors employed in the pilot scheme, the staff—both legally qualified and others—of the Legal Aid Board, other members of the profession, and indeed the accused himself, if the particular problem adverted to arises it can and will be responsibly addressed.

Amendment No. 35, too, is unacceptable. The whole point of fixed fees is to ensure that, overall, solicitors are fairly rewarded for work necessarily and reasonably done with due regard to economy. It is also undesirable because it removes from Clause 51 the provision enabling the solicitor to be reimbursed for outlays not included in the prescribed fixed payment. For those different reasons, I hope that the amendment will not be pressed.

5.45 p.m.

The Earl of Mar and Kellie

My Lords, I am certain that my advisers from the Glasgow Bar Association will be interested to read the noble and learned Lord's answers. It sounds as though the issues will come up in the pilot projects. We look forward to dealing with this matter at some time in the future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Fixed Payments]:

[Amendment No. 35 not moved.]

Clause 52 [Contracts for the provision of criminal legal assistance]:

[Amendment No. 36 not moved.]

Clause 53 [Power of investigation of Scottish Legal Aid Board]:

[Amendments No. 37 and 38 not moved.]

Clause 60 [Grants for forensic medical services]:

The Earl of Mar and Kellie moved Amendment No. 39: Page 75, line 24, leave out first ("person") and insert ("public body").

The noble Earl said: My Lords, I shall speak also to Amendment No. 40. I tabled these amendments because I believe, in principle, that the courts and their ancillary services belong in the public sector. When a citizen's liberty is at stake, I am keen that the state should supply the scientific evidence.

I understand that there are four forensic laboratories in Scotland, all of which are in the public sector. They work within the Strathclyde, Lothian and Borders, Tayside and Grampian police forces. I believe that there are no private forensic laboratories in Scotland. It seems to me that the clause is an unnecessary enabling clause. I beg to move.

Lord Mackay of Drumadoon

My Lords, these amendments seek to ensure that grants for forensic medical services can be made only to public bodies. At present the Crown Office in my department provides grant-in-aid to the four Scottish universities with departments of forensic medicine. I give a clear undertaking that there are no plans to change that arrangement. However, it would be wrong to restrict the Lord Advocate's freedom to obtain forensic medicine services from whichever body or person was willing and able to provide those services.

If one or more of the universities chose not to provide such services, or for some technical reason in the hospital within which they work that proved impossible on a short-term basis, the Lord Advocate of the day would require to look elsewhere. There clearly would not be time to come to Parliament to obtain authority to start funding another body. I do not envisage that happening, because the universities concerned are of long standing and have served the Crown in Scotland well. I believe—I say this not just in my capacity as Lord Advocate, but with my experience in the Crown Office at present and earlier in the 1980s—it would be wrong to restrict the statute in the way proposed. In those circumstances, I hope that the noble Earl will feel able to withdraw the amendment.

The Earl of Mar and Kellie

My Lords, the noble and learned Lord's answer was better than I had expected, I have to say.

Lord Mackay of Drumadoon

My Lords, before the noble Earl sits down, may I take it that that was a compliment?

The Earl of Mar and Kellie

My Lords, yes, that constituted a compliment. I had not appreciated that the forensic medical services came from the universities. I was thinking more in terms of the police laboratories. The noble and learned Lord said that there was no one yet from whom he could obtain such services. So broadly speaking he agreed with my last remark that the clause at present was an unnecessary enabling clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 40 not moved.]

Clause 61 [Confiscation of alcohol from persons under 18]:

The Earl of Mar and Kellie moved Amendment No. 41: Page 75, line 33, at end insert ("but it shall not be an offence to fail to comply with any such requirement.").

The noble Earl said: My Lords I speak also to Amendment No. 42. These amendments relate to the clause providing for the confiscation of alcohol in public places. They were tabled to clarify the situation. In the event of compliance with the police request, no offence is committed. Since tabling the amendments two things have occurred. First, I received a helpful letter from the noble and learned Lord the Lord Advocate—another compliment—explaining that it was not an offence under the 1976 Act, but he went on: It may he an offence against the local by-laws".

I found that interesting to note. These local by-laws operate mainly in cities. My favourite local authority, the Clackmannanshire Council, is developing a by-law prohibiting drinking in public outdoor places by people of all ages. Other authorities may follow the lead.

That brings me to the most serious and new point. The Bill deals with the possession of alcoholic liquor but not with its consumption. I am sure that it is intended to be aimed at youngsters drinking in public and being a nuisance while doing so, but it does not say so. The Bill allows the police to confiscate unopened cans of beer, alcopops or whatever, which may be in a shopping bag being transported between the child's home and the grandparents' home, being consumed or in a picnic basket and possibly even supervised by a parent. I wonder whether that is the intention of this part of the Bill. I beg to move.

The Earl of Balfour

My Lords, the amendment seriously weakens the powers of the police. I do not believe that that is the kind of thing we want to do.

Lord Mackay of Drumadoon

My Lords, I am grateful to my noble friend for taking the words out of my mouth. I understand why the noble Earl, Lord Mar and Kellie, brings the matter forward, but, unfortunately, the amendments are entirely at odds with the provisions in subsection (3)—

The Earl of Mar and Kellie

My Lords, I must apologise to the House for the wording of the amendments. It was my intention that they should read: but it shall not be an offence to comply with any such requirement". I appreciate that the wording in the Marshalled List is entirely wrong.

Lord Mackay of Drumadoon

My Lords, if it is entirely wrong, I compliment the noble Earl for acknowledging that and I trust that he will not press the matter. Clearly, the purpose of the provision is not to give people criminal convictions unnecessarily, but to give the police power to deal with a few children who brazenly refuse to comply with requirements, which I believe have the vast support of the majority of the population who are concerned about drinking in public on repeated occasions. For whatever reason, I hope that I have persuaded the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie

My Lords, having tabled the wrong amendment, I certainly am persuaded to withdraw it. However, I remain concerned that there will be an issue about unopened bottles of drink if a zealous policeman were pursuing that. I put that forward as a problem for the future and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Clause 63 [Financial provisions]:

Lord Mackay of Drumadoon moved Amendment No. 43: Page 76, line 31, at end insert— ("() Part XA of the 1995 Act (Scottish Criminal Cases Review Commission) (as inserted by section 24A of this Act);").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 22. I beg to move.

On Question, amendment agreed to.

[Manuscript Amendments Nos. 43A and 43B not moved.]

Clause 65 [Short title, commencement and extent]:

[Amendment No. 44 not moved.]

Schedule 1 [Minor and Consequential Amendments]:

Lord Mackay of Drumadoon moved Amendments Nos. 45 to 47: Page 78, line 3, at end insert—

("The Public Records Act 1958 (c.51)

. In the First Schedule to the Public Records Act 1958 (definition of public records), in Part II of the Table at the end of paragraph 3, at the appropriate place insert— Scottish Criminal Cases Review Commission."."). Page 78, line 31, at end insert—

("The Superannuation Act 1972 (c.11)

. In Schedule I to the Superannuation Act 1972 (kinds of employment to which a scheme under section 1 of that Act may apply), at the end of the list of "Royal Commissions and other Commissions" insert— Scottish Criminal Cases Review Commission.

The House of Commons Disqualification Act 1975 (c.24)

. In the House of Commons Disqualification Act 1975, in Part II of Schedule 1 (bodies of which all members are disqualified), at the appropriate place insert— The Scottish Criminal Cases Review Commission."."). Page 78, line 37, at end insert—

("The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c.55)

. In Part I of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (persons ineligible for jury service), in Group B, after paragraph (w) insert— (wa) members and employees of the Scottish Criminal Cases Review Commission;".").

The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 22. I beg to move.

On Question, amendments agreed to.

Lord Mackay of Drumadoon moved Amendment No. 48: Page 89, line 5, at end insert— ("() In section 46 (presumption and determination of age of child)—

  1. (a) in subsection (1), after the word "offence" there shall be inserted the words ", whose age is not specified in the indictment or complaint in relation to that offence,";
  2. (b) in subsection (3) at the beginning there shall be inserted the words "Without prejudice to section 255A of this Act,".").

The noble and learned Lord said: My Lords, the amendment was grouped with Amendment No. 27. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 49: Page 89, leave out lines 31 to 33 and insert— ("() In section 63 (appeals by prosecutor in cases involving insanity)—

  1. (a) in subsection (I), paragraph (d) shall cease to have effect;
  2. (b) in subsection (2)(b)(ii), the words "or (d)" shall cease to have effect; and
  3. (c) in subsection (5)(b)—
    1. (i) for the words "or order", in the first place where they occur, there shall be substituted the words "order or disposal"; and
    2. (ii) for the words "or order", in the second place where they occur, there shall be substituted the words "or acquittal".").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 24. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendments Nos. 50 to 53: Page 90, line 23, at end insert— ("() In section 113(2)(c) (recipients of copy of judge's report) for the words "section 124(3) of this Act, to the Secretary of State" there shall be substituted the words "Part XA of this Act. to the Commission"."). Page 90, leave out lines 29 to 31 and insert—

  1. ("(16) In section 124 (finality of proceedings and Secretary of State's reference)
  2. (a) in subsection (1), after "this Part" there shall be inserted the words "or Part XA";
  3. (b) in subsection (2), for the words "subsection (3) below" there shall be substituted the words "Part XA of this Act"; and
  4. (c) subsections (3) to (5) shall cease to have effect.").
Page 91, leave out lines 47 and 48 and insert— ("() In section 298 (trial judge's report)—
  1. (a) in subsection (1)(a), after the words "108" there shall be inserted the words 108A"; and
    2. 964
  2. (b) in subsection (2), for the words "section 124(3) of this Act, the Secretary of State" there shall be substituted the words "Part XA of this Act, the Commission".
 Page 91, line 49, after ("(interpretation)") insert ("— (a) after the definition of "Clerk of Justiciary" insert— the Commission" has the meaning given by section 194A(1) of this Act;"; and. (b)")

The noble and learned Lord said: My Lords, these amendments were spoken to with Amendment No. 22. I beg to move.

On Question, amendments agreed to.

Schedule 3 [Repeals]:

Lord Mackay of Drumadoon moved Amendment No. 54: Page 97, line 5, column 3, at end insert— ("In section 63, subsection (1)(d) and in subsection (2)(b)(ii) the words "or (d)".")

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 24. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 55: Page 97, line 16, column 3, at end insert— ("In section 124, subsections (3) to (5).")

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 22. I beg to move.

On Question, amendment agreed to.

Then, Standing Order No. 44 having been suspended (pursuant to Resolution of 18th March), Bill read a third time.

Lord Mackay of Drumadoon

My Lords, I beg to move that this Bill do now pass. In speaking to that Motion, I hasten to assure your Lordships that I do not intend to speak for 52 minutes, which was one of the longer contributions during the Bill's Committee stage.

Obviously, your Lordships have given careful scrutiny to the Bill, albeit that the Report stage lasted a shorter period than might otherwise have proved to be the case. The Government believe—and I believe—that the Bill contains many useful provisions, some of which have perhaps attracted more attention during your Lordships' deliberations. We believe that they offer much protection and reassurance to the people of Scotland and that in many respects they will further improve the administration of Scotland's criminal justice system.

I wish to acknowledge and offer considerable personal thanks to noble Lords who have contributed to our deliberations. The consideration of the Bill in your Lordships' House followed upon and to some extent ran in tandem with consideration of the Crime (Sentences) Bill. There was some similarity between certain of the provisions. Nevertheless, noble Lords who took part contributed much and I am grateful to them.

On my own Benches, I thank my noble friends, in particular Lady Carnegy and Lord Balfour. I personally enjoyed the exchanges over the Dispatch Box with the noble Lord, Lord Sewel, and my colleague in the Faculty of Advocates, the noble Lord, Lord Macaulay. I regret that he cannot be with us today. I enjoyed my exchanges with my former colleague on the Criminal Injuries Compensation Board, the noble Lord, Lord Thomas of Gresford. During the past three months he has been on a steep learning curve about the law of Scotland, but I hasten to assure him that it is not as steep as the learning curve I have been on in respect of the law of England. However, I have certainly enjoyed and much appreciated the contributions made by the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Mackie, whom I am pleased to see in his place.

I said on Second Reading that I welcome the contribution which noble and learned Lords can make to the deliberations of your Lordships' House. It would be wrong for me to suggest that I have always agreed with them. But it is quite obvious that the noble and learned Lords, Lord Hope of Craighead, Lord McCluskey and Lord Clyde, have put a great deal of thought and preparation into the speeches which they made. I am sure that they have proved to be of benefit to us all.

I am grateful to the Whips who have supported me; in particular, my noble friend Lord Courtown. He has been involved with many other major Bills in this current Session. He has constantly had to be in touch with my officials, who are also due considerable thanks.

It is unfortunate that the timetable for the Bill has to some extent been restricted. However, there can be no doubt that your Lordships' House has performed a very valuable role in giving detailed scrutiny to this very important piece of legislation.

Moved, That the Bill do now pass.—(Lord Mackay of Drumadoon.)

Lord Sewel

My Lords, this has not been a particularly easy Bill, especially for those of us who are not lawyers. We have listened to the lawyers and have benefited from their contributions.

There have been a number of magic moments in our discussions and debates, not least the recent one when the noble Earl, Lord Mar and Kellie, drew our attention to the problem of unopened bottles of drink. I must tell the noble Earl that I have a solution for that problem and I am quite happy to share it with him afterwards.

We have undoubtedly improved this Bill as we have considered it in this House. It is a much improved Bill from that which we received from the other place. During our discussions, we have been indebted to the noble and learned Lord the Lord Advocate for his continuing patience and courtesy to all of us who have participated in the debate. Indeed, he has been painless—I was going to say painful—in the length of his explanations on occasion. In fact, on some occasions it seemed that it was not so much Drumadoon as the full text of "Brigadoon" which we were hearing.

It is customary on these occasions, and rightly, to thank those who have contributed to the work of the Opposition Benches. Our researcher, Robert McGeachy, has been outstanding in giving us the support which we clearly needed. I should like to thank also Mr. Michael Clancy of the Law Society and representatives of CoSLA, who have made us aware of its concerns. As I say, we have improved the Bill and it is now in a position to make a contribution to the criminal justice system in Scotland.

6.3 p.m.

The Earl of Mar and Kellie

My Lords, on these Benches we are extremely grateful for the Sutherland Committee Report which has led to the establishment in the Bill of the Scottish Criminal Cases Review Commission. We are also extremely grateful for Amendments Nos. 2 and 4 on today's Marshalled List.

I too should like to express my thanks to the noble and learned Lord the Lord Advocate, everyone on the Treasury Bench and, undoubtedly, all their advisers for handling all my amendments, which were designed to put up markers for the future as much as anything else. It was a trial to have two major criminal justice Bills running in parallel, particularly as they were not the same despite the fact that they were often referred to as being so.

I believe genuinely that this Bill continues the search for effective community sentences, and I certainly welcome that. I have to say that this may be the last Scottish criminal justice Bill to be discussed in this Parliament. That depends on the outcome of the election on 1st May and possibly a number of referenda.

I came to this Report Stage regretting the lack of opportunity to scrutinise the Bill. But I am now satisfied with the issues which were concerning me. I understand why we are in this position and, again, I thank the noble and learned Lord the Lord Advocate for answering all my points.

6.5 p.m.

Lord Hope of Craighead

My Lords, I should like to add my words of thanks to the noble and learned Lord the Lord Advocate for the constructive way in which he has approached the remaining stages of the Bill. Some parts of the Bill will remain controversial but there is no doubt that, as the noble and learned Lord said, the Bill contains a number of very important and useful provisions.

I am glad to see the provisions in Part II pass through this House. Those deal in particular with the problem of miscarriages of justice. We must remember that those provisions are not retrospective and clearly it is important that they be brought into force as soon as possible. It is perhaps moving rather quickly to look ahead to the commencement order but there are certainly provisions in the Bill which deserve to be part of the law of Scotland without delay. For that reason alone, I look back with gratitude at what the noble and learned Lord has been able to achieve.

I am grateful also for the care which the noble and learned Lord has taken in responding to one or two suggestions which I made in relation to both this Bill and the English Bill. Overall, I am quite sure that this is a much-improved Bill from that which reached this House from another place. For that, much of the thanks must go to the noble and learned Lord and those who have advised him.

6.7 p.m.

The Earl of Balfour

My Lords, I should like to thank my noble and learned friend for the many letters which he has answered about technical questions which I have asked. I wish that that I had had more time to study every single word in the Bill. It was not an easy Bill to follow because, for the most part, it amended other legislation. I find that, therefore, it takes a long time to read the Bill. However, I am most grateful to my noble and learned friend the Lord Advocate.

Lord Mackie of Benshie

My Lords, I add my thanks to the noble Lord, Lord Thomas of Gresford, for taking on a great measure of work on the Bill. Perhaps I may say as a Scottish Peer, that that is a sign of co-operation between Scotland and Wales which is not always evident. I should also like to thank my colleague, my noble friend Lord Mar and Kellie, for doing a great deal of the work.

6.8 p.m.

Baroness Carnegy of Lour

My Lords, I should quite simply like to say that the way in which my noble and learned friend the Lord Advocate has conducted the Bill has been quite remarkable. He has shown the most astonishing stamina. Moreover, at times he has been subjected to a good deal of difficult argument. Sometimes his temper must have been severely tested. But he passed the test and I believe that the whole House will agree with me that he has acquitted himself admirably on this occasion.

On Question, Bill passed and returned to the Commons with amendments.