Lords Sitting of 24 February 1998

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

WEU Parliamentary Assembly
Lord Hardy of Wath Lord Hardy of Wath asked Her Majesty's Government:
Whether they will seek to ensure that the Council of Ministers of the Western European Union adopts an open approach to the Parliamentary Assembly; and that the Council provides information relevant to the interests and responsibilities of the assembly where that information is available to national parliaments.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Parliamentary Assembly of the Western European Union has an important role to play in fostering parliamentary and public discussion of European security issues.
The WEU Permanent Council sends a detailed formal report on its activities to each plenary session of the assembly. The Council also maintains a regular dialogue with the Parliamentary Assembly, comprising extensive opportunities for written and oral exchange of information and views. Her Majesty's Government strongly support that dialogue and the efforts to ensure it is open, effective and relevant.
Lord Hardy of Wath: My Lords, does my noble friend agree that it was regrettable that last year the Council of Ministers refused to provide information to the Parliamentary Assembly? That was information which would certainly have been available in other parliaments, as it is in our own. Does my noble friend share the suspicion that the action of the Council of Ministers at that time was a cover-up for those member states which, while proclaiming eagerness for the development of the European defence pillar, maintain inadequate defence provisions themselves and certainly have an unfair record of security burden sharing?
Baroness Symons of Vernham Dean: My Lords, the extensive arrangements for dialogue already in place, which I described to your Lordships' House, have not always worked as well as they should. It is important to make them work better. To be credible, an intergovernmental defence organisation must be able to protect information which member states consider affects their security. I am afraid that that inevitably places some restriction on how fully the WEU Council can share its deliberations with the WEU Assembly, particularly on issues where member states disagree.
Lord Moynihan: My Lords, does the Minister accept that, even if the Amsterdam treaty gives explicit recognition that NATO is the foundation of our common defence, it also gives explicit recognition of the possibility of an EU and WEU merger and the first steps towards a common defence role for the European Union? Given that Article J7 of the Treaty of Amsterdam states that the,
"Union shall accordingly foster closer relations with the WEU with a view to the possibility of the integration of the WEU into the Union",
what guarantees can the Government give that, despite the possibility of a merger enshrined in treaty form for the first time, they will not acquiesce to such a merger in the future?
Baroness Symons of Vernham Dean: My Lords, to turn the EU into a defence organisation would undermine NATO. The Amsterdam treaty makes clear, as Maastricht did not, that there can be no EU-WEU integration unless and until all member states agree and their national parliaments approve.
Lord Hooson: My Lords, is it not correct that the late President Kennedy used to regard NATO as being based on two pillars—the North American pillar and the European pillar? Has not Europe been way behind in setting up an effective European pillar to NATO?
Baroness Symons of Vernham Dean: My Lords, we should understand the nature of the WEU. It is not there to perform collective defence tasks in the way that NATO is. It is there much more to deal with crisis management in Europe.

Women's Refuges and Support Services
2.40 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
What plans they have to improve the supply of and support for women's refuges and ancillary services.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, the Government wish to promote and facilitate local action to support victims of domestic violence, whether through the provision of refuges or outreach and other services. Capital funding is made available to local authorities and through the Housing Corporation for spending on local housing priorities, which can include refuge provision. Funding arrangements for a range of support services, including refuge and outreach services, are currently being examined by the interdepartmental review of funding for supported accommodation. The Government's objectives for future funding arrangements were published for consultation in November 1997.
Earl Russell: My Lords, I thank the Minister for that reply. Is she aware that the number of available refuge places is still less than one third of the figure recommended by the Home Affairs Select Committee

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in 1975? That estimate itself is widely regarded as an under-estimate. Is she further aware that ancillary services, in particular help lines and support for children, are cases where spending a little money might end in saving rather a lot?
Baroness Hayman: My Lords, I certainly take the noble Earl's point that the ancillary services are very important. The Government recognise that refuges offer valuable respite and support, enabling victims to rebuild their lives. In 1995 the Women's Aid Federation in England estimated that there were around 340 refuges for victims of domestic violence run by women's groups plus 78 units of move-on accommodation, representing 2,104 family places. However, it is important to recognise that, as the noble Earl pointed out, there is a whole range of accommodation and support packages for victims which can be used by local authorities. Refuges are one—but not the only one—of these. Women have a variety of needs and preferences and it is important that they can be met at a local level. On that point, just over 20,000 households were accepted by local authority housing departments as homeless in 1996 giving violent breakdown of their relationship as a reason for the loss of their last home.
Baroness Gardner of Parkes: My Lords, does the Minister appreciate that it is not only the immediate local authority that is involved? It is important that women should be able to move out of an area where the husband or the violent party who created the problem can immediately find them. For that reason the problem tends to bridge a number of local authorities. Would it not be desirable to have specific funding to bridge different areas rather than just giving funding through the support grant?
Baroness Hayman: My Lords, we do have to look at the areas of funding. A review is going on which has recognised that funding for services is often fragmentary and can be precarious for some of the services. The noble Baroness asked about local authorities looking after women who are seeking safe accommodation outside their own areas. Under Part VII of the Housing Act 1996 local housing authorities must assist all applicants who are eligible, unintentionally homeless and in priority need. But my department is currently revising the guidance on Parts VI and VII of the Housing Act and is looking at the scope for strengthening the guidance to local housing authorities about their responsibilities in this area.
Lord Meston: My Lords, is the Minister aware that the problems of demand are not confined to England and Wales and that last year refuges in Scotland were reported as having been overwhelmed, having had to turn away some 4,000 women and 6,000 children for lack of space? Does that not argue for an urgent rationalisation of the funding of refuges on a long-term and secure basis?
Baroness Hayman: My Lords, I am aware of the concerns that have been raised in Scotland on this issue. We have to make sure that the Government's response is co-ordinated. The Cabinet sub-committee on women's issues has a role to address all forms of violence against women and there is also the ministerial group, chaired by my honourable friend Mr. Alun Michael, specifically working on domestic violence. In addition, the Department of Social Security is leading an interdepartmental review of funding for supported accommodation. All those reviews involve the territorial departments as well as the departments—the Home Office and the Department of Social Security—that are immediately involved. However, I note the presence of my noble friend Lord Sewel on the Bench beside me. I am sure that he will take on board the noble Lord's point.
Lord Taylor of Gryfe: My Lords, am I to assume that this will be a devolved subject and that therefore the concerns expressed by my friend on the Liberal Benches will not be a proper subject for discussion in this House?
Baroness Hayman: My Lords, I am advised that it is suggested that the funding—certainly the local authority funding for refuges—would be a devolved issue. However, there are wider issues than simply accommodation. There are the Home Office issues involving domestic violence, the criminal law and enforcement against offenders, and the Government have a coherent approach to those.
Lord Avebury: My Lords, have the Government made an assessment of the effect of alcohol on domestic violence? Should not more attention be paid to the causes of domestic violence so as to prevent it in the first place rather than providing more facilities to pick up the pieces afterwards?
Baroness Hayman: My Lords, I tried in my earlier response to allude to the point that the noble Lord is making. The Government need to ensure that we approach this issue across the board—not simply picking up the pieces, although providing appropriate support to the victims of domestic violence and their children is important, but also looking at how we may prevent the violence in the first place and dealing with the perpetrators of that violence.
Baroness Maddock: My Lords, in view of the Minister's answers about the complexity of funding and the provision of refuges for women, is there not a good case now for reconstituting the ministerial committee on domestic violence? I understand from previous answers that that is not the Government's intention.
Baroness Hayman: My Lords, I think I made it clear that if we go into too much detail we may be in danger of needing a co-ordinator of co-ordinating committees. There is the Cabinet sub-committee on women's issues which has an overall role to address all forms of violence against women, and there is also the ministerial group looking specifically at the work across

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departments on domestic violence. The Department of Social Security is leading an interdepartmental review of funding for supported accommodation, including refuges. My own department, the Department of Health, and the territorial departments are all contributing to that. It is important that we get work on those topics done well and disseminated well.

British Indian Ocean Territory
2.48 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they have any proposals to change their policy on the sovereignty of the British Indian Ocean Territory and in particular whether they will agree to the return of the former inhabitants to those islands from Mauritius.
Baroness Symons of Vernham Dean: My Lords, we have no such proposals. Our policy remains that the territory will be ceded to Mauritius when it is no longer required for defence purposes. It is possible for the Ilois to apply for contract work at the defence facility on Diego Garcia. But, given the lack of infrastructure needed to sustain inhabitation, a wider return by them to the other islands of the British Indian Ocean Territory is not a realistic prospect.
Lord Dormand of Easington: My Lords, if the territory is essential for defence purposes, although some people doubt whether that is the case, why cannot some of the islands be made available to be used for the return of the people to their homeland? There is nothing unusual about military bases and civilians existing side by side. In view of the Foreign Secretary's recent announcement of a review about the remaining British Dependent Territories, is not this a highly appropriate time for the matter to be reconsidered?
Baroness Symons of Vernham Dean: My Lords, it is true that some of the outer islands are some way from Diego Garcia; and they are not necessary for the defence purposes that I outlined in my original Answer. But for legal and logistical reasons it would not be possible to allow the Ibis to return to them. There is no prospect of re-establishing the copra plantations which originally drew the Ibis to that part of the world on any commercially viable scale. No infrastructure is left in any of the outer islands. There are no buildings, running water facilities or electricity. The territory's administration could not provide the longer term support that would be needed for such a small community. It could not provide medical and educational facilities or even basic supplies. So what the noble Lord suggests is simply not practicable.
Lord Beaumont of Whitley: My Lords, is not the statement that there is no infrastructure left on a par with the statement made by the government of the time that there were no inhabitants on the islands, when in fact they had just removed them? Given that
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it was Mr. Robin Cook who, as a Back-Bencher, first alerted another place to this shameful episode in British colonial history, would it not be very suitable if he found the way back for these unfortunate people?
Baroness Symons of Vernham Dean: My Lords, my right honourable friend is considering British dependent territory citizenship not only in connection with the former inhabitants of BIOT but of other dependent territories as well. I believe that my right honourable friend is endeavouring to address some of those issues.
The noble Lord referred to my right honourable friend's statements. They were made some 10 to 15 years ago. Since that time the defence requirements have developed. They have not diminished as a result of the ending of the Cold War. It is the fact that we still need the islands for defence purposes. The noble Lord says that those defence purposes are not so very great and that the islands were not inhabited in the past. It is not the case that the outer islands were heavily inhabited. I can assure the noble Lord that what I said in my original Answer about there not being facilities is factually correct.
Lord Dormand of Easington: My Lords, does my noble friend agree that Mauritius is a valued and enthusiastic member of the Commonwealth? She mentioned to me in her original Answer that the facilities are not there. Would it not be a darned good idea to start those facilities now because of the reputation which Labour governments have in developing other countries where standards have not been reached?
Baroness Symons of Vernham Dean: My Lords, this question was raised during the meeting with the Mauritian Prime Minister in October 1997. My right honourable friend the Secretary of State for Foreign Affairs reiterated a commitment given by previous British governments that the territory would be ceded to Mauritius when no longer required for defence purposes. Other matters were discussed then. Moreover, in a Written Answer on 17th November 1997, my honourable friend the Minister of State also made the point. It is also worth remembering that the Ilois community was compensated originally with a sum of £650,000 and 10 years later with a further sum of £4 million for the disruption caused to their lives.
Lord Mackay of Ardbrecknish: My Lords, the noble Lord, Lord Beaumont of Whitley, referred to Mr. Robin Cook's position some years ago. Can the noble Baroness answer the question? Has Mr. Cook changed his mind? If he has, is it on the same basis as he changed his mind about cruise missiles? Some 16 years ago he was signing CND petitions against them.
Baroness Symons of Vernham Dean: My Lords, I am sure that all of us on occasions come to different conclusions in the light of changing circumstances—
Noble Lords: Oh!
Baroness Symons of Vernham Dean: My Lords, as I made clear to the House, I am aware that the

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statements were made 10 to 15 years ago. If the noble Lord would like to listen instead of talking to his friends, he might learn something. The fact is that the position has changed since then. The Government can reaffirm, as publicly stated in 1992 under the previous administration, that the territory will be ceded to Mauritius when no longer required for the defence purposes for which it is needed at the moment.

Scottish Parliament: Voting System
2.56 p.m.
Lord Selkirk of Douglas Lord Selkirk of Douglas asked Her Majesty's Government:
Whether they support the introduction of electronic voting in the Scottish parliament.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, it will be for the Scottish parliament to decide on its procedures including its system for voting. However, we expect this matter to be considered by the all-party consultative steering group, which my right honourable friend has established to take forward consideration of how the parliament might operate. The parliament building will have the infrastructure necessary to accommodate the latest technology including, if so decided, electronic voting.
Lord Selkirk of Douglas: My Lords, I thank the Minister for his reply. Is he aware that there is said to be some support for electronic voting? Can he give an assurance that, whatever system is chosen, parliamentarians will have to be present in order to vote? Can he also confirm that the Government will not give support to voting by remote control?
Lord Sewel: My Lords, I am tempted to speculate that the noble Lord's supplementary question is based on his long experience in another place. Perhaps I may step outside my brief for the moment. I believe I can give an assurance that procedures will be put in place to prevent such obvious cheating.
Baroness Knight of Collingtree: My Lords, will the Minister also bear in mind, first, that even the latest electronic machines can go wrong and, secondly, that it is never certain which finger is on the button?
Lord Sewel: My Lords, I take the point that the noble Baroness has made. I understand that we use wands in this House so that the top hats of noble Lords in years past could be lifted to make sure that it was noble Lords who were voting and not their servants. I do not believe that we shall be introducing wands in a Scottish parliament.
Lord Steel of Aikwood: My Lords, was not the Minister quite correct to remind the House that in fact these decisions will ultimately be taken by the shadow parliament once it is elected in May next year and before
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the parliament itself takes office, but that it will have the final say in the matter? Will the noble Lord share my expectation, since the shadow parliament will be starting with a clean sheet and a new building, that it may well introduce procedures and practices which will be exciting, innovative and which may eventually find their way to the Palace of Westminster?
Lord Sewel: My Lords, I am not greatly attracted by the term "shadow parliament"; it will be the actual parliament, but it will not take over legislative competence at that stage. It will be for that parliament to decide its own procedures. Particularly in the area of pre-legislative scrutiny, I am sure that it will be developing procedures and practices from which we could all learn.
Lord Jenkins of Putney: My Lords, does my noble friend accept that there are some technical possibilities which are undesirable and that this is one of them?
Lord Sewel: My Lords, that will be a matter for the Scottish parliament to decide in the exercise of its wisdom.
Baroness Carnegy of Lour: My Lords, if voting lobbies are to be included in the design specification of the new parliament, surely an early decision will have to be made for that to be done. Can the Minister tell us whether that is to be the case and that voting lobbies will be included, or is that particular option going to be shut off from the new parliament?
Lord Sewel: My Lords, as far as I am aware I do not believe that voting lobbies are part of the design brief for the Scottish parliament, but I will check that. Perhaps I may make the point that the parliament will be relatively small with 129 or so members. Whether the best way of voting in a small parliament is through voting lobbies is a matter for discussion.
Lord Taylor of Gryfe: My Lords, can the Minister enlighten us further on the all-party steering group now operating in Edinburgh, which is a non-elected body making important decisions that will guide the new parliament? I gather that the age at which people will be able to vote in elections for the Scottish parliament is under review, together with a number of other important constitutional matters. Can the Minister bring us up to date and tell us, first, who is on that non-elected body and, secondly, the range of its authority?
Lord Sewel: My Lords, I wish to make it absolutely clear that the consultative steering committee, which was established by my right honourable friend, is looking purely and simply at matters relating to the operation of the parliament. It is certainly not considering matters such as the age of voting. That matter is not before the consultative steering committee. The committee has 13 members, including representatives of all the main political parties, the Convention of Scottish Local Authorities and the Scottish Constitutional Convention. I believe that that is a good forum in which all aspects of

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Scottish public life can come together and contribute to making suggestions about how the parliament should go forward. It is doing its job well and establishing its work in a framework and spirit of consensus. That has to be applauded.
Lord Bridges: My Lords, the Minister has spoken about the design of the new parliament. Is he yet in a position to answer the question that I put to him some two or three weeks ago about the rules for the architectural quasi-competition? The noble Lord kindly said that he would write to me, but I do not seem to have received his answer.
Lord Sewel: My Lords, the noble Lord rightly takes me to task. In fact, I signed the letter this morning. The answer is that the rules are in accordance with those set down and advocated by the Royal Institute of British Architects.
Earl Russell: My Lords, does the Minister agree that it is part of a definition of a parliament that it is sovereign over its own procedure, and that that fact alone could have served as a full and sufficient Answer to this Question?
Lord Sewel: Yes, my Lords, but it may have been a little too brief.
Lord Monkswell: My Lords, does my noble friend recognise that his initial Answer—that it would be up to the Scottish parliament to determine its own voting procedures—and his subsequent answer to the question asked by the noble Baroness, Lady Carnegy of Lour, suggest a contradiction and that one will prevent the other? Does my noble friend recognise that contradiction and, if so, will he take it back for further consultation and perhaps provide further information to the House?
Lord Sewel: My Lords, as I said, I gave that Answer on the basis of my best understanding at the moment. If I am right and the design brief at the moment does not include voting lobbies, I do not think that providing voting lobbies in the parliament would be a major obstacle if that is what the parliament so decided.
Lord Mackay of Ardbrecknish: My Lords, can the Minister confirm that the Secretary of State, Mr. Donald Dewar, will veto any suggestion that James Bond, alias Sean Connery, will be allowed to have his finger on any of those buttons? Furthermore, and taking a bit further the question asked by the noble Lord, Lord Steel of Aikwood, does the Minister agree that the parliament ought to be able to consider how it will vote, which includes having the option of voting lobbies? Perhaps the consultative committee should look at what happens in the European Parliament which can vote hundreds of times in one week because voting takes place electronically. Is not our system here, where we have lobbies where Ministers appear and where they can be got at by Members of Parliament, preferable to an electronic system?
Lord Sewel: My Lords, I genuinely believe that this is a matter for the Scottish parliament itself to decide. I do not think that my right honourable friend is in the business of vetoing anything in terms of the way in which the Scottish parliament will proceed. I believe that it was Mr. Connery who was Dr. No. This is where we are and we must look forward. Let the Scottish parliament decide. Let there be consultation within the consultative committee. Let the parties make their suggestions and let the parliament make the decisions.
The Earl of Halsbury: My Lords, is it too much to hope that the Scottish parliament will come into the 21st century by adopting what in a letter to The Times I have called "loaded lobby voting", combining the virtues of both proportional representation and constituency representation by passing a card through a slot?
Lord Sewel: My Lords, that may well turn out to be the case. Perhaps I may return, however, to one of the points made by the noble Lord, Lord Mackay of Ardbrecknish, and tell him that during my time as leader of the minority administration on my local authority we introduced electronic voting—and it encouraged members to vote rather too often.
Lord Cocks of Hartcliffe: My Lords, will the Minister remind those who are consulting on the process that occasionally a party may wish to lose a vote, but that that is extremely difficult with electronic machines?
Lord Sewel: My Lords, it has proved rather difficult in this House from time to time!
Lord Carter: My Lords, I am tempted to say that I understand that question.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lady Symons of Vernham Dean will, with the leave of the House, repeat a Statement that is to be made in another place on Iraq.

Crime and Disorder Bill [H.L.]
3.5 p.m.
(The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 41 [Early administrative hearings]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 197:
Page 32, line 10, leave out from ("means") to end of line I I and insert ("representation under Part V of the Legal Aid Act 1988").
The noble Lord said: This is a short, tidying up amendment which follows from the fact that the definition of "legal aid" in Clause 41(4)(b) is too wide for the purposes of an early administrative hearing. Such a hearing is concerned only with the defendant's eligibility for a legal aid certificate, covering representation under Part V of the Legal Aid Act 1988. Amendment No. 197, therefore, seeks to delete the reference to "advice and assistance" under Part III of the 1988 Act which does not fall to be determined by the court. I beg to move.
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns: moved Amendment No. 197A:
Page 32, line 11, at end insert—
("() This section applies only to early administrative hearings and not to pre-trial reviews or plea and directions hearings.").
The noble Baroness said: In moving the previous amendment, the Minister has already referred to the background to Clause 41. I have tabled this probing amendment because I should like the Minister to explain whether or not the powers of the justices' clerks will be extended to pre-trial work generally. The Magistrates' Association has pointed out to me that, as it stands, the clause is rather unclear. It refers first to hearings being conducted by a single justice, but goes on to explain that justices' clerks may also conduct them. I note that those hearings are not defined specifically or referred to as "early administrative hearings" in the text of the clause, but that the expression "early administrative hearings" is used in the side note. I beg to move.
The Solicitor-General (Lord Falconer of Thoroton): I am grateful for the fact that this amendment has been moved because it gives the Government the opportunity to describe the objective of Clause 41. I believe that that is what the probing amendment seeks to achieve. The provision will enable justices sitting alone, and justices' clerks, to conduct, shortly after charge, hearings at which arrangements can be made for the defendant to obtain legal aid and to consult a legal adviser. The clause has no bearing whatsoever on what happens at subsequent hearings, referred to in the amendment as "pre-trial reviews". Those hearings are in any event not defined in statute.
It is not clear what the effect of the amendment would be, but if its purpose is to limit the effect of Clause 41 to the first hearing in a case, it is superfluous as that clause confers no powers either on a justice or on a clerk other than that to conduct an early administrative hearing, as described in Clause 41. The single justice or clerk who conducts such a hearing may also exercise
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any other powers that he possesses, but those powers are independent of Clause 41. In the case of a single justice, they are exercised by virtue of Clause 40 or other legislation and, in the case of a clerk, by virtue of rules made in accordance with Clause 40. I very much hope that I have explained the point that the noble Baroness has raised. In those circumstances, I invite her to withdraw her amendment.
Lord Taylor of Blackburn: What does my noble and learned friend mean by "clerk"? Is he referring to a senior clerk or any clerk within the department?
Lord Falconer of Thoroton: In the Bill "clerk" means a person who is qualified to act as a clerk in a relevant justices area, not just anyone in the office.
Baroness Anelay of St. Johns: I am grateful to the noble and learned Lord for his explanation of the objectives of the clause. I am reassured having heard his detailed explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41, as amended, agreed to.
Clause 42 [No committal proceedings for indictable-only offences]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 198:
Page 32, line 15, at end insert ("and
(b) for any either-way or summary offence with which he is charged which fulfils the requisite conditions (as set out in subsection (8A) below).
() Where an adult who has been sent for trial under subsection (1) above subsequently appears or is brought before a magistrates' court charged with an either-way or summary offence which fulfils the requisite conditions, the court may send him forthwith to the Crown Court for trial for the either-way or summary offence.").
The noble and learned Lord said: I beg to move Amendment No. 198 and at the same time speak to Amendments Nos. 199 to 205. These are technical amendments to improve the Bill. As presently drafted Clause 42 is designed to secure the prompt removal to the Crown Court of indictable-only offences, but it is not sufficient for these offences alone to be sent to the higher court. If a defendant faces other charges triable either way which are related to the indicatable-only one it may be necessary for those charges to accompany it to the Crown Court. That is why where an adult is sent to the Crown Court for trial for an indictable-only offence, Clause 42 requires the court also to send there any related either-way charge which is before the court on that occasion either against him or against another adult jointly charged with him. But because of the reference to "that occasion" the clause does not take account of the situation where the defendant has already been sent to the Crown Court for trial for an indictable-only offence and there is a subsequent appearance in court on a related either-way charge either by that person or by another adult jointly charged with him. For example, a suspect may be caught and charged with an either-way offence jointly with the main suspect only after the latter has been arrested and appeared in

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court. The effect of these amendments is to give the magistrates' court a discretion to send the defendant to the Crown Court for trial on that related charge.
In deciding whether to exercise this discretion the court will be able to take into consideration the stage which the indictable-only case has reached. The appearance on the related charge may follow soon after the indictable-only one, in which instance it would be right for that case to be sent forward too so that they can be dealt with together. If, on the other hand, the indictable-only case had already progressed a long way, it is possible that sending the related charge up to the Crown Court to join it would lead to extra delay, in which case the discretion would be exercised against sending it up to the Crown Court. That is what the first part of these amendments seeks to achieve.
In relation to young people, these amendments merely bring the clause into line with Section 24 of the Magistrates' Courts Act 1980. In place of a simple discretion to send a young person to the Crown Court to be tried jointly with an adult on an either-way charge, the court is required to send him where it is necessary in the interests of justice. That is the same test as under the Magistrates' Courts Act 1980. That is the effect of the proposed amendments.
3.15 p.m.
Baroness Anelay of St. Johns: I understand the intention of the Government underlying the group of amendments to which the Minister has just spoken. Clause 42 provides that the proceedings for indictable-only offences should commence in the Crown Court. These amendments seek to speed up the processing of cases. At Second Reading I raised concerns about the potential effect of Clause 42 on the information available to the defence at the early stages and upon the administration of cases when they reached the Crown Court. I am grateful to the noble Lord, Lord Williams of Mostyn, for writing to my noble friend Lord Henley on these matters. In particular, I am grateful for his reassurance that the question of resources will be looked at in the course of piloting these new procedures.
The amendments to Clause 42 tabled by the Minister fulfil the intention underlying the clause, as the Government see it, of mopping up as many cases relating to the same defendant as possible and having them heard together in the same accelerated way. We on these Benches do not oppose the amendments. However, I should like to take this opportunity to remind the Minister of the potential effects of Clause 42. The Law Society has pointed out that the practical implications of this major procedural change must be carefully thought through to ensure that it is fair and workable. There has already been a significant increase in the number of plea and directions hearings at the Crown Court. These are invariably heard by the resident judge or senior nominated judges at the Crown Court centre. That reduces the amount of time available to them to preside over trials. If they are to undertake case management of indictable-only offences and related matters, I believe that they will have even less time to spend on trials where they would normally be
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expected to take a lead in cracking the lists. Not only will that cause delay ultimately in the disposal of cases which go to trial, there will also be a tendency to allocate trials to recorders and assistant recorders. I am referring to those who are not authorised to take plea and directions cases.
There is a risk that the provisions may change the overall character of the work of the judges in the Crown Court: they become case managers instead of presiding over trials. We on these Benches do not oppose the amendments. However, we seek reassurance from the Minister that the Government have taken into account the potential changes that may occur as a result of the amendments which build upon the original clause. It is important that the Committee is aware of the potential changes when agreeing to Clause 42 with the amendments.
Lord Falconer of Thoroton: I am grateful for the indication by the noble Baroness that she does not oppose these amendments. I note carefully the points that she has made about the administrative effect of having indictable-only offences in the Crown Court. I reassure the noble Baroness that considerable thought is being given to the question of how it will affect proceedings in the Crown Court. Unquestionably the overall aim is to speed up the trial of indictable-only offences. However, I reassure the noble Baroness that proper thought is being given to how this may work out in practice.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 199 to 205:
Page 32, line 18, at end insert ("or a subsequent").
Page 32, line 22, after ("shall") insert ("where it is the same occasion, and may where it is a subsequent occasion,").
Page 32, line 23, at end insert—
("() Where a court sends an adult for trial under subsection (2) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged which fulfils the requisite conditions.").
Page 32, line 28, after ("same") insert ("or a subsequent").
Page 32, line 30, leave out ("may") and insert ("shall, if it considers it necessary in the interests of justice to do so,").
Page 32, line 32, leave out from second ("a") to end of line 38 and insert ("child or young person for trial under subsection (3) above, it may at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged which fulfils the requisite conditions.").
Page 33, line 11, at end insert—
("(8A) An offence fulfils the requisite conditions if—

(a) it appears to the court to be related to the indictable-only offence; and

(b) in the case of a summary offence, it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.").

The noble and learned Lord said: I beg to move Amendments Nos. 199 to 205 en bloc.
On Question, amendments agreed to.
Clause 42, as amended, agreed to.
Clause 43 [Provisions supplementing section 42]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 206:
Page 34, line 3, at end insert—
("() Unless the accused consents, a magistrates' court shall adjourn proceedings under section 42 if those proceedings are the first hearing at which the court has decided not to grant bail").
The noble Lord said: I beg to move Amendment No. 206. The new Clause 42 will make a very substantial change to the traditional way in which indictable offences are committed to the Crown Court. The purpose of the amendment is simply to retain the present protections in the magistrates' court for persons who seek bail. At the moment it is possible for a person who goes to the magistrates' court to make an application at the first hearing for bail and, if that is refused, to make a subsequent application on change of circumstances. If that second application fails it is possible for the defendant to go to the Crown Court and apply for bail. All that this rather simple amendment seeks to do is to maintain the right of the defendant to make successive applications for bail in the magistrates' court before he has to go to the Crown Court for that purpose.
Lord Falconer of Thoroton: I understand the effect of the noble Lord's amendment. It is inspired by the Law Society's concern to ensure that offenders facing indictable-only charges do not lose the opportunity to make a full bail application at a second hearing before the magistrates' court.
Although the intention is that indictable-only cases should be sent straight from the magistrates' court to the Crown Court, there is no risk of a defendant being held in custody for longer than at present. If a defendant is refused bail at the preliminary hearing before the magistrates' court, it will be open to him to apply to a Crown Court judge for bail. Although cases are, in any event, expected to appear in the Crown Court within eight days of the preliminary hearing, a defendant need not wait for that Crown Court hearing before applying but can do so immediately.
Under the new proposal a defendant can apply for bail when he first comes up in front of the magistrates' court. If he is refused bail at that stage, he can either wait until the matter next appears at the Crown Court—which would probably be within eight days—or, if he wishes, he can make an immediate application to the Crown Court for bail upon refusal by the magistrates' court. So he will get his two shots within reasonably quick time, which is the present position. The defendant is not in any way prejudiced by these provisions in so far as bail is concerned.
In the light of what I have said, I trust that the noble Lord will withdraw his amendment.
Lord Thomas of Gresford: I am most grateful to the noble and learned Lord. I share the view expressed by the noble Baroness, Lady Anelay of St. Johns, that at the moment insufficient thought has been given to the
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pressure that will exist on the Crown Court. Not only must it deal with the raw material of committal for trial—which to some degree is sorted out at magistrates' court level—but now it will also have to deal with bail applications. In the past that would not have been the case.
I urge the Minister to take that on board and give it some further thought, but I do not wish to press the amendment at this stage.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 207:
Page 34, line 8, at end insert—
("() A person may be represented at any pre-trial hearing before the Crown Court, including a hearing at which an application provided for in paragraph 2(1) of Schedule 2 to this Act is made, by an authorised advocate or authorised litigator as defined by section 119(1) of the Courts and Legal Services Act 1990.").
The noble Lord said: This is an amendment to allow a solicitor who has not attained the higher rights of audience to represent an accused at a pre-trial hearing in the Crown Court.
I go back to the dim and distant past when I was a solicitor engaged in submitting no case to answer in the magistrates' court. I recall that that procedure was one way in which a defendant could very quickly be relieved of the pressure and worry of a charge which was not well founded. That was a function normally performed by solicitors without too much difficulty.
It is a function which the amendment suggests should continue in the Crown Court at the pre-trial stage if it is quite obvious that the papers which have been served upon a defendant do not support the case against him. He should then be released as soon as possible and have the charges dismissed. To do that the solicitor who has control of his case should have the right of hearing in the Crown Court. I beg to move.
Lord Ackner: As I understand it, the amendment would allow any solicitor to represent an accused at a pre-trial hearing at a Crown Court even though he or she had not obtained a higher right of audience.
At present only barristers and those solicitors who have passed the Law Society's tests to gain higher rights of audience may appear in the Crown Court at such a hearing. My concern is that this apparently modest little amendment seeks to bypass the statutory route for granting rights of audience.
In 1989 the Lord Chancellor produced Green Papers designed to reorganise, among other things, rights of audience. Initially he intended that he and he alone should issue advocacy licences. It was pretty firmly pointed out by the judiciary that they, the judges, had a considerable interest in who had rights of audience. As a result a fairly complex procedure was built up under which the Lord Chancellor's Advisory Committee—the majority of whom were laymen, but naturally the Bar and the solicitors were represented—would receive an application from the professional body wishing to extend the rights of audience. It would then make inquiries and then make a report saying whether or not

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it agreed. The report then went to the Lord Chancellor, who expressed his own view, and it then finally went to the designated judges—the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. If any one of them disagreed with the new proposal, that was the end of it, so sensitive was the accepted position in regard to altering the rights of audience.
The Act provides in Section 27:
"The question whether a person has a right of audience before a court, or in relation to any proceedings, shall be determined solely in accordance with the provisions of this Part".
The Act provides, in terms, that the philosophy behind the approach to extending rights of audience is that provision should be made for better ways of providing legal services with a wider choice of persons providing them, while maintaining the proper and efficient administration of justice. The procedure recognises the importance of ensuring that only people with suitable qualifications and experience are able to appear before the court, which is particularly important in criminal cases.
I accept that the Schedule 4 procedure may be in need of some reform, but it has provided for proper debate and scrutiny on the suitability of people to exercise rights of audience in a number of cases over the past five years. Its function is to consult widely and then issue a decision for consideration by the Lord Chancellor and the designated judges. It would be wrong to adopt an ad hoc approach to particular areas of the system because that could lead to undesirable inconsistencies. This is a case where the statutory procedure, until altered by statute, should be adhered to.
Lord Henley: I echo the concerns expressed by the noble and learned Lord, Lord Ackner, and it is unnecessary to repeat them. I have only one question to put to the noble Lord, Lord Thomas. Obviously this amendment will have implications for the Bar in that it extends the right of audience for solicitors yet further. When the noble Lord responds to the government's response, will he say what consultations he had with the Bar Council and what concerns the Bar had about his particular amendment?
3.30 p.m.
The Lord Chancellor (Lord Irvine of Lairg): I am grateful to the noble Lord, Lord Thomas of Gresford, for moving the amendment, and for raising what is undoubtedly an important subject. Clause 42 contains provisions to abolish committal proceedings for indictable-only offences, and to remove the pre-trial stages of prosecutions for those offences from magistrates' courts to the Crown Court. One of the results of those provisions is that Crown prosecutors and defence solicitors who can now handle those procedures in magistrates' courts will no longer be able to do so because they have been moved to the Crown Court.
The noble Lord has rightly drawn attention to the shortcoming which arises. I am grateful to him for having done so. But, important though that shortcoming is, it is only part of a much wider deficiency in the current arrangements for dealing with rights of audience. The subject ought not to be dealt with
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piecemeal. Rather, we must look for a comprehensive answer to the full range of rights of audience problems. I agree, therefore, to this extent, with the noble and learned Lord, Lord Ackner: that the amendment has a wider significance than may at first appear.
Perhaps I may take this opportunity to explain. The current regime for determining rights of audience, and indeed rights to conduct litigation, is, as the noble and learned Lord said, set out in the Courts and Legal Services Act 1990. The Committee will no doubt remember the debates in this place and elsewhere that surrounded that legislation. My predecessor was right to seek to open up the provision of legal services, especially rights of audience, so that the question of who could appear in the courts was based on something other than old-fashioned restrictive practices.
The provisions in Part II of the 1990 Act have singularly failed to achieve what was hoped for them. It is arguable that the only tangible achievement is that, seven years on, 596 solicitors in private practice have been awarded the right to appear in the higher courts.
As the Government outlined at the general election, we are not satisfied that the current restrictions on the exercise of rights of audience, in particular, for qualified lawyers working for the CPS, are in the public interest. Moreover, the existing procedures in the Courts and Legal Services Act for granting or extending rights of audience and rights to conduct litigation have proved to be unacceptably labyrinthine and slow.
Consequently, the objective of the 1990 Act, which was to provide for a wider provision of legal services, and a wider choice of person supplying them, has effectively been frustrated. Under the existing procedure set out in the 1990 Act, if an authorised body such as the Law Society or the Bar Council wishes to make a change in its rules of conduct or qualification regulations relating to rights of audience or rights to conduct litigation, it must first seek the advice of my advisory committee on legal education and conduct, before making a formal application to the Lord Chancellor.
The Lord Chancellor is then obliged to refer the application back to the committee for its advice to him, and to the Director General of Fair Trading for his advice. Next, the Lord Chancellor must await any further comments which the authorised body wishes to make before deciding whether to approve the application. The Lord Chancellor must then write to the designated judges under the Act—the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, and the Vice-Chancellor—to inform them of his decision, and the reasons for it; then to request their decisions and reasons. Only if the designated judges and the Lord Chancellor unanimously approve an application can the relevant change in the rules be made.
The inevitable consequence of that lengthy procedure is that even minor and uncontroversial rule changes typically take many months to approve, while more controversial applications can take many years. Let me give an example. The Law Society applied for rights of audience in the higher courts in April 1991. That part

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of the application which related to solicitors in private practice was granted in December 1993, but it was not until February 1997 that the application for employed solicitors was determined. The effect, after nearly six years of consideration, was a derisory increase in rights for employed solicitors, which allowed them to appear in trials in the higher courts only if they were led in those courts by an independent advocate; that is, a barrister or solicitor in private practice with the requisite rights of audience.
A fundamental reshaping of the provisions in the 1990 Act is required. I agree with the noble Lord that changes are needed, but I have to say that they should go very much wider than the present amendment implies and very much wider than the scope of the present Bill permits. We need a fresh modern approach to rights of audience. Parliament needs to be given an early opportunity to consider afresh the provisions required to widen rights of audience.
I am actively considering what proposals to bring forward. I shall shortly embark on consultations with the legal professions about the way in which their rules impact on the exercise of rights of audience. A comprehensive answer is now needed to the gaps in rights of audience, and to the machinery put in place in 1990. The noble Lord has done this place a strong service by raising the issue today; but, in the circumstances, I would ask him to withdraw his amendment so that this issue can be considered further and properly in its wider context. I look forward to returning to this place in due course with the Government's clear proposals for a modern regime on rights of audience.
Lord Ackner: Before my noble and learned friend sits down, I understand the criticism that he has made on the length of time it took for the decision to be made about rights of audience of employed solicitors. It took far too long. There may be a number of reasons for that. But is he criticising the quality of the decision, because the decision resulted from a majority decision of his own advisory committee? It was then put to the Lord Chancellor and the four designated judges. They modified that decision in a manner which need not be described in detail. If he is criticising the quality of the decision, he is criticising not just his predecessor but all four designated judges.
The Lord Chancellor: I am not sure if I should, on that account, abstain from doing so, but I do not do so today. As I have said, my view proper is for me to return to this place with our clear proposals when all these matters can be fully and exhaustively debated.
Lord Henley: We are grateful to the noble and learned Lord for taking the trouble to come to the Committee to make what is an important announcement about these matters. I have just one question. I suspect it is one to which he may not necessarily wish to respond at the moment. I put it in hope. Will he say something about the time-scale of the review that he has
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announced, and when he hopes to come back before this place to make the announcements that he hopes to make—as he put it—in due course?
The Lord Chancellor: Soon.
Lord Thomas of Gresford: I am grateful to the noble and learned Lord the Lord Chancellor for taking the trouble to come here to give such a full reply to my amendment. I must confess that I have a somewhat chequered past in that for a period of five years I was a solicitor and then sought to transfer to the Bar. In those days—I am talking about the late 1960s—it was necessary for me to go into purdah for two years when I was not allowed to be one thing or the other. I then had to take the final and intermediate examinations of the Bar together and during the two-year period I filled my time by lecturing.
By the time I was admitted and called to the Bar, I had a certain view of its restrictive practices which have remained with me. I have always believed that to use the professional distinction between barrister and solicitor in a restrictive way is wrong and unnecessary. When it comes to higher advocacy it is, and for a long time has been, my considered view that experience of the Bar and daily contact with the courts and the judges is of incalculable benefit to the public. The Bar is far better organised to be able to give a service of advocacy which solicitors cannot give. Perhaps I would not go all the way with the noble and learned Lord the Lord Chancellor if his proposal is entirely radical. However, it is my view that the Bar can compete with solicitor advocates without any problems.
The other point of view is that solicitor advocates can be of excellent quality. I have had the privilege of leading a number of solicitors as my juniors who have received the certificate. They have provided me with the most excellent service and with a contact with the client that one would not normally expect. I am sure that that benefits the public generally.
I return to this little amendment. It is extraordinary that today, I, as a solicitor, could go into a magistrates' court, submit that there was no case to answer and have it stopped there and then, the charges dismissed and my client a free person without any further worry. However, tomorrow, if the Bill goes through as I assume it will, and the matter is sent directly to the Crown Court, I, as a solicitor, will no longer able to do so.
I recall that many years ago as a solicitor I appeared in a magistrates' court in a manslaughter case involving the death of an eight week-old baby. My client was acquitted following a submission of no case to answer before the magistrates of Glyn Ceiriog in a remote valley in North Wales. That meant that at an early stage the individual was relieved from the possibility of a serious charge. My amendment suggests merely that a solicitor who has control of the case and is completely au fait with all the facts and circumstances should be able to go to a Crown Court judge and, on the papers, be able to submit that there was no case to go before a jury.

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When one goes that step beyond and comes before a jury in a criminal case where the question of guilt or innocence is finally to be determined and where the higher skills of advocacy are to be employed, that is a different situation. I reserve the right to make comments on that should the noble and learned Lord put forward future proposals.
In answer to the noble Lord, Lord Henley, although I normally consult with the Bar Council on matters of concern to it—and I am currently in discussion with it on legal aid matters, for example—on this matter I have not received any official communication nor have I been in communication.
It so happens that with the background that I have outlined and with that chequered career, I have kept myself far away from Bar politics and from defending the restrictive practices over many years. With that caveat to the noble and learned Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 agreed to.
Lord Hoyle: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Iraq
3.45 p.m.
Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I should like to repeat a Statement on Iraq which has been made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, I will make a Statement on the recent crisis over weapons inspections in Iraq and the agreement signed by the UN Secretary-General and the Deputy Prime Minister of Iraq in Baghdad yesterday. Since the text of the agreement is now in the public domain, I am arranging for copies to be placed in the Library of the House.
"It is worth recalling again the origins of this crisis. One of the main conditions of the Gulf War ceasefire in 1991 was that Iraq's weapons of mass destruction should be destroyed or rendered harmless by inspectors working for the United Nations. This was embodied in Security Council Resolution 687.
"Since then, the UN weapons inspectors have done a tremendous job in finding and destroying these weapons. The full details have been given to the House before, but they included horrific amounts of chemical and biological weapons. The inspectors achieved this despite systematic obstruction, deceit and concealment by Saddam Hussein, which caused repeated confrontation between the UN Security Council and Iraq.
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"There was a crisis last November about the composition of UNSCOM teams, which was resolved by Saddam Hussein agreeing to allow the inspectors back in, following a diplomatic agreement brokered by the Russians. Crucially, this was not written down or followed by a fresh Security Council resolution. He almost immediately went back on this agreement, plunging us into the most recent crisis about access to presidential compounds, some of them large and containing hundreds of buildings, and presidential palaces. This has not been an artificial argument about some theoretical threat hut a reflection of real alarm on the part of the UN inspectors about use of these sites to conceal both evidence and actual weapons. The Security Council cannot accept that any areas remain off limits.
"Saddam began by saying that there could be no access to these sites. Then, under intense pressure, not least from the start of the build-up of forces in the Gulf, he eventually agreed that they could be visited once. This was clearly unacceptable, but he refused to move further. Meanwhile, we and the Americans, together with our other allies, continued to make clear that, if he did not back down, we saw no alternative in the end to the use of force. We made preparations to ensure that we were ready to use force, if absolutely necessary.
"Under this renewed pressure, Saddam Hussein began to show readiness to move further. On the basis of a text drafted by Britain, the five permanent members of the Security Council agreed last week that the UN Secretary-General should go to Baghdad to make clear to Saddam Hussein that he had to comply fully and unconditionally with the relevant Security Council resolutions, and to negotiate a written agreement on these lines if he could. It was clear to all that, if Saddam was not prepared to agree, force might have to be used, albeit with the greatest reluctance.
"I am delighted that Kofi Annan, for whom I have the greatest respect and admiration, has succeeded in this mission and has brought back a signed agreement, the details of which have now become public. He will be reporting to the Security Council this afternoon on his discussions with the Iraqi Government.
"The key provisions of the agreement are as follows. Iraq reconfirms its acceptance of the relevant Security Council resolutions, including 687, and its readiness to co-operate fully with UNSCOM and the International Atomic Energy Agency. Iraq undertakes to accord immediate, unconditional and unrestricted access to UNSCOM and the IAEA. A special group will be established to inspect eight clearly defined presidential sites, composed of UNSCOM and IAEA experts, together with diplomats appointed by the Secretary-General, and headed by a commissioner, also appointed by the Secretary-General. This group will operate under the established procedures of UNSCOM and the IAEA, but also with some extra specific procedures related to the nature of the sites.

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"We await clarification of the details of the special group. Three things are essential: the commissioner in charge of this group must be properly qualified for the task; the details of the inspection regime must preserve in full the professional and technical nature of the inspections and the inspectors; and there can be no question of negotiating with Saddam Hussein over the integrity of the weapons inspection process. I am confident from our contacts with the Secretary-General that he understands these points.
"I welcome this agreement and pay tribute to Secretary-General Kofi Annan's achievement in securing it. It has been an important demonstration of the value of the UN and its absolutely vital role in the world. And we should never forget that if we do not stop Saddam Hussein acting in breach of his agreement on weapons of mass destruction, the losers will be not just those threatened by him, but also the authority and standing of the UN itself.
"The agreement refers to the desire of the Iraqi Government for the lifting of sanctions. No timetable is set for this. The sanctions have always been there for a reason, to ensure full compliance of Iraq with the relevant Security Council resolutions. Once this is achieved, the issue of lifting sanctions can be properly addressed.
"Let me also deal with one false assertion often made by the Iraqi regime. It has never been our intention to undermine Iraq's territorial integrity, or its security, or the dignity of the Iraqi people. The issue has always been to ensure that there are no weapons of mass destruction left in Saddam Hussein's arsenal. The agreement repeats this and makes it clear.
"While the agreement signed in Baghdad is welcome, it is not in itself enough. A piece of paper signed by the Iraqi regime plainly cannot be enough. The Saddam Hussein we face today is the same Saddam Hussein we faced yesterday. He has not changed. He remains an evil, brutal dictator. The only thing that has changed is that he has changed his mind in the face of effective diplomacy and firm willingness to use force. Nothing else would or could have brought about this success. Nothing else will ensure that it is followed up by satisfactory implementation on the ground and the total elimination of his capacity to obtain or produce weapons of mass destruction.
"Let me be absolutely clear. We will not tolerate any repetition of the Iraqi behaviour which has led to this agreement. We are not going to play more elaborate diplomatic games that allow Saddam Hussein to thwart the inspections regime which has now been agreed.
"That is why there are now two essential requirements in the coming days. First, we need to embody the agreement in a new Security Council resolution. This must make clear that any further prevarication or obstruction by Saddam Hussein of the smooth operation of the inspections, in accordance with previous Security Council
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resolutions and the latest agreement, will not be accepted by any member of the Security Council and will inescapably be followed by the most severe consequences for the Iraqi regime.
"Secondly, the implementation of the agreement must be tested soon. This will require inspections by UNSCOM without any Iraqi obstruction—whenever and wherever it wishes to inspect. There will be no immediate change in the readiness of British or US armed forces in the Gulf until this is clear.
"Throughout the dispute, our aim has been a peaceful, diplomatic settlement. There was no desire on either side of the Atlantic to use force. But it was also clear to us throughout that Saddam Hussein only understands and respects force. Those who have criticised ourselves and the Americans for our willingness to use force in the last resort have to explain how such an attitude could have recovered Kuwait in 1990 and could ensure Saddam's compliance now. I do not believe they can convincingly do so. As Kofi Annan said in Baghdad:
"You can achieve much by diplomacy, but you can achieve a lot more when diplomacy is backed by firmness and force."
With Saddam, diplomacy plus force equals success.
"Our task now is to do everything we can to ensure that the agreement reached by Kofi Annan is smoothly, effectively and rapidly implemented. We played a key diplomatic role in the negotiations leading up to his mission. We will continue to play the same role in the follow-up. I have already discussed this with presidents Clinton, Yeltsin and Chirac in the last 24 hours. My right honourable friend the Foreign Secretary is in close touch with his counterparts. We are agreed on the need for a rapid and clear Security Council resolution to ensure that we cannot find ourselves in the same position again in the future. That will be the main focus of our immediate efforts.
"I have made clear that when Saddam Hussein has complied fully with the Security Council resolutions, the UN inspectors have completed the disarmament stage of their work, and the threat from his weapons of mass destruction has gone, we can consider the lifting of sanctions. If Saddam had not blocked the implementation of UNSCOM's work so systematically, this could have happened long ago. The long-suffering Iraqi people deserve our sympathy and our help. Our quarrel was never with them.
"We led the way in New York last week in the adoption of a new Security Council resolution more than doubling Iraq's ability to sell oil for food, even though food and medicine have never been subject to sanctions of any kind. I hope that this time Saddam will allow the scheme to be utilised properly for the benefit of all his people. Meanwhile, we will maintain and, if possible, increase the direct bilateral help we give to the Iraqi people through appropriate NGOs.
"Saddam Hussein has spent seven years playing for time, but has been thwarted by the resolve of the international community. It is now clearer than ever that his games have to stop once and for all. If they do not, the consequences should be clear to all.

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"Throughout our objectives have been plain: to do everything in our power to destroy Saddam Hussein's weapons of mass destruction; to hold out the prospect of relief for the Iraqi people; and to uphold the will of the United Nations. That is what we have done and that is what we will continue to do."
My Lords, that concludes the Statement.
3.58 p.m.
Lord Moynihan: My Lords, on behalf of the Opposition, I thank the Minister for repeating the Statement made in another place and for updating the House on this latest development of the diplomatic efforts of the UN on behalf of the international community to find a peaceful resolution to the Iraqi crisis.
From these Benches, we welcome the prospect of a diplomatic solution and we join the Minister in paying tribute to Kofi Annan for the courage and skill with which he has carried out his mission. From these Benches, too, we continue to remain constant and unwavering in our support for a diplomatic solution underpinned by the military option; to persuade Saddam Hussein to comply with the will of the international community expressed in terms of Security Council resolutions.
A few hours ago I returned from a brief visit to New York and Washington where I spoke at length to our ambassadors to the United States and the United Nations. I take this opportunity to congratulate them and their staff on their professionalism and diligence. I wish also to place on record our strong support for our Armed Forces currently in the Gulf.
I hope that the Minister can give me some further details, first, as regards a number of provisions outlined in the Memorandum of Understanding between the United Nations and the Republic of Iraq and, secondly, on the nature of the assurances obtained from Saddam Hussein, given his past record of trickery and of deceit. In particular, what is meant by the UNSCOM undertaking to respect the legitimate concerns of Iraq relating to national security, sovereignty and dignity? Will the Minister give an assurance that the inclusion of these words will not result in their use by Saddam Hussein as a pretext for further delay and obstruction? Further, will the Minister give her assurance that the inclusion of the phrase "territorial integrity" will not serve to give Saddam Hussein carte blanche to continue his oppression of the Kurdish people? What guarantee do we have that he will not renege on this agreement as he did on the agreement reached last November, and what will the consequences be if Saddam Hussein fails to comply with this agreement?
Further, will the Minister tell the House if there is any division between the position of our Government and that of the United States Government, both in respect of the provisions contained in the MoU and the course of action that will be followed if Saddam Hussein fails to honour his undertakings according to this agreement? But perhaps the most important issue that will tax the United Nations this week is the drafting of an appropriate UN resolution. As to the proposed Security
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Council resolution, can the Minister explain the necessity for this, given her previously expressed view that existing resolutions of the Security Council provide a sufficient basis for military action?
I accept that it will be difficult for the Minister to answer all these questions before the deliberations currently under way at the UN are concluded. However, this is one question which I believe requires an answer today. I refer specifically to paragraph 1 of the MoU which I quote for your Lordships' convenience,
"The Government of Iraq reconfirms its acceptance of all relevant resolutions of the Security Council, including resolutions 687 … and 715".
Will the Minister confirm unequivocally that the reference to "all relevant resolutions" contained within paragraph 1 of the MoU includes Resolution 678, which is the one resolution which specifically authorises the use of force? Does she not agree that a widely publicised but unsuccessful attempt to obtain a fresh resolution authorising the use of force would be a profoundly undesirable outcome?
We need assurances that Saddam Hussein will now do what needs to be done to get food and medical supplies to the people of Iraq. Notwithstanding paragraph 7 of the MoU, will the Minister confirm that sanctions will not be lifted until Iraq has been given a clean bill of health in terms of its compliance with United Nations Security Council resolutions, and that there is no change in the Government's position on this?
Finally, the Iraqi crisis has served to illustrate one thing. There seems to be a unique opportunity for Britain to launch a comprehensive diplomatic initiative and to take a lead in addressing a number of closely-related issues within this region, particularly during our presidency of the European Union. Such issues include the position of the Kurdish people; the stalled Middle East peace process; the thawing of relations with Iran and the geopolitical ramifications of this; and the need for a co-ordinated response to such international crises with our European partners. Does the Minister agree that this opportunity must now be taken?
4.3 p.m.
Lord Steel of Aikwood: My Lords, on behalf of my noble friends I thank the Minister for repeating the Statement made in the other place and also for copying the Memorandum of Understanding between the UN and the Republic of Iraq, which, I may say, has the great merit of being a good deal briefer than the Government's own Statement.
I welcome the outcome of these negotiations and add to the congratulations given to Mr. Kofi Annan and his team. We also recognise that this outcome could not have been achieved without the strong resolution and determination to use force if necessary on which the Government enjoyed the support of all parties in both Houses of Parliament. Will the Minister recognise that, given the track record of Saddam Hussein, it is right that he should be judged in future by his deeds and not by his words, and therefore we fully understand and support the view of Her Majesty's Government that eternal vigilance is required? Perhaps, unlike the

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spokesman for the Opposition, I therefore understand the need for and desirability of securing a fresh, clear and unambiguous resolution of the Security Council. I wish Her Majesty's Government well in that endeavour.
Will the Minister accept that the few of us who have been to Baghdad since the end of the Gulf War also recognise the importance of the initiative that is being taken, which she mentioned in the Statement, in increasing the quantity of oil for food sales? As the Minister said, there is no quarrel with the people of Iraq but it is they who are suffering terribly under the present sanctions regime.
Throughout the tensions of the past few weeks Her Majesty's Government and other governments have stressed the importance of adhering to the letter of United Nations Security Council resolutions, in particular Resolution 687. Will she recognise the geopolitical importance now of turning attention to other Security Council resolutions? I, as a young MP, was present at the UN when the late Lord Caradon so successfully piloted through Resolution 242 on the Middle East peace process. That was back in 1967. Thirty years later we are still not much nearer peace in accordance with Resolution 242. Perhaps more relevant are the more recent resolutions condemning the invasion of parts of Lebanon.
Nothing could be more damaging to the authority of the United Nations, and indeed to our own relations with the Arab world, than to leave the impression that there are two standards of enforcement of Security Council resolutions, one for a hostile dictatorship but another for a friendly democracy. That clearly cannot be allowed to continue. The Minister will be aware that over the past few weeks the Atlantic Accord has quite understandably been much in evidence but there has not been much evidence of the common foreign and security policy to which we are supposed to subscribe. I join with the Opposition spokesman in suggesting that in our presidency of the EU in this six months' period we should use our best endeavours to put back on the rails the Middle East peace process.
4.7 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank both the noble Lords, Lord Moynihan and Lord Steel, for their support. Like them, I feel enormous relief that we have a diplomatic solution to this terribly difficult problem which we have discussed on a number of occasions recently. I thank the noble Lord, Lord Moynihan, and the noble Lord, Lord Steel, for joining in the tribute to Kofi Annan, as expressed by my right honourable friend the Prime Minister. I am sure that all your Lordships will wish to join in that tribute. I also thank the noble Lord, Lord Moynihan, for his kind words about our ambassadors in Washington and New York. I shall make sure that they see the appropriate extract of Hansard.
The noble Lords asked a number of specific questions which I shall now try to address. The noble Lord, Lord Moynihan, was concerned about the issues in the
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Memorandum of Understanding concerning the dignity of Iraq and territorial integrity. The territorial integrity of Iraq has been supported by Her Majesty's Government on numerous occasions before. I recall that on several occasions I referred to the importance of territorial integrity. I do not believe that the reference to it now in the Memorandum of Understanding should cause us any difficulty at all. I do not believe that this is so much a question of the Kurdish element, but the noble Lord, and I am sure other noble Lords, will remember that we have had occasion in the past to debate some of the Turkish incursions into Northern Iraq which have caused your Lordships' House a little worry in the past.
The noble Lord, Lord Moynihan, asked what was different this time as compared with the last occasion; namely, the deal that was brokered by the Russians in November last year. There are three main points. First, on this occasion we have a memorandum of understanding which has been written down. As the noble Lord, Lord Steel, said, it has the advantage of being admirably short and clear. It also has the advantage of having been signed by the Secretary-General of the United Nations and the Deputy Prime Minister of Iraq. Secondly, as was set out in the Statement, we are seeking a new Security Council resolution. Thirdly, the forces of Her Majesty's Government and the United States will remain in the Gulf while we are testing whether the Iraqis are committed to this agreement in the way that is implied in the memorandum of understanding. So there are three crucial differences this time which distinguish this round of negotiations from those of last November.
The noble Lord, Lord Moynihan, asked whether a Security Council resolution was really necessary. The position is exactly the same as when we discussed it last time. Her Majesty's Government have always believed that a further Security Council resolution was desirable. I have made that clear in this House. It remains desirable, to demonstrate the unity of purpose across the United Nations in backing the memorandum of understanding signed on our behalf by the Secretary-General.
The noble Lord also asked whether the first paragraph of the memorandum of understanding covers Security Council Resolution 678. He read Out the first paragraph. Perhaps I may read it again. It states:
"The Government of Iraq reconfirms its acceptance of all relevant resolutions of the Security Council".
That includes Resolution 678.
The noble Lord also asked whether I could give an assurance that sanctions would not be lifted until such time as we are satisfied with the compliance of Saddam Hussein. Perhaps I may repeat what I said in reading the Statement a few moments ago. My right honourable friend said that he had made it clear that when Saddam Hussein has complied fully with the Security Council resolutions, the UN inspectors have completed the disarmament stage of their work, and the threat from his weapons of mass destruction has gone, we will consider the lifting of the sanctions. There are three clauses there. All must be fulfilled before we consider the raising of the sanctions.

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I agree with the noble Lords, Lord Moynihan and Lord Steel, that we now have an opportunity of building our alliances not only across the Atlantic but within Europe. Perhaps I may say to the noble Lord, Lord Steel, that, although it may not have received a great deal of publicity in the past few weeks and particularly the past few days, the diplomatic effort behind what has gone on in Baghdad over the past few days has been second to none. My right honourable friend the Secretary of State at the Foreign Office has been tireless, as indeed has his honourable friend Mr. Fatchett, in talking to our friends in the EU and trying to reach understandings. Indeed, we had a majority of our colleagues in the EU moving in exactly the same direction as we were at the time that Mr. Annan went to Baghdad.
The noble Lord, Lord Steel, raised again the perplexing and difficult question of what he described as a different standard that is applied in relation to Security Council resolutions and their implementation—in relation on the one hand to a hostile dictatorship, and on the other to a friendly democracy. When I have addressed this question previously in this House, that is not the only distinction that I have made in regard to the ways in which we are addressing the issue. The fact is that we are discussing a Middle East peace process with the Government of Israel. We may not be happy with the way that is moving, but there are still discussions under way. Our problem with the government in Baghdad was that we were unable to negotiate, and in those circumstances had to resort to far more drastic means. I say to the noble Lord, Lord Steel, that we are also in the very unhappy position of dealing, in Saddam Hussein, with a man who has an unenviable record of breaking his word and using weapons of mass destruction, not only on his neighbours as he did in Iran, but on his own people as he did in Halabja. So there are a number of crucial differences, not just the one pointed out by the noble Lord.
I hope that we can now look forward to a building process with our colleagues. As my right honourable friend said, that is being discussed this afternoon in the Security Council. We look forward to the resolution that we hope will be forthcoming in the Security Council, and we look forward, I hope, to a period of peace and stability in the Gulf.
4.15 p.m.
Lord Shore of Stepney: My Lords, I congratulate my noble friend and her colleagues on the skill and resolution that they have shown through this difficult and dangerous period. But of course Saddam Hussein remains in power in Baghdad. His evil purposes will continue. What consideration has been given to successfully prosecuting the battle for hearts and minds not only in Iraq but throughout the Middle East, where the image of Saddam Hussein appears to be far different from what we know and see it to be here in the United Kingdom, in other parts of Europe and in America? As I am sure my noble friend will agree, we need a positive attempt to win opinion in those very important lands.
Baroness Symons of Vernham Dean: My Lords, I thank my noble friend for his congratulations. My
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noble friend used the phraseology, "the battle for hearts and minds". That is exactly the phraseology that I and my colleagues have been using over the past few weeks. However, the fact is that my right honourable friend the Foreign Secretary, my honourable friend Mr. Fatchett and my noble friend Lord Gilbert have been engaged in a clear diplomatic offensive, if I may put it that way, in the Gulf in trying to ensure that the battle for hearts and minds is being engaged.
It is of course difficult to know how far one is succeeding on those issues. But it was very evident by the end of last week that the stance taken by Her Majesty's Government was gaining much greater support in the Gulf states than we had at the beginning of the initiative.
I also hope that the clear statements made by Her Majesty's Government on the humanitarian interest that we have in the Iraqi people do not go unnoticed in that country. As I said, we have taken the lead in ensuring the expansion of the oil for food resolution. We have more than doubled the amount of oil for food going into Iraq every six months from 2.2 billion to over 5 billion US dollars. That is something in which Her Majesty's Government can take some pride. We have always said that our argument was never with the Iraqi people; it has always been one of pinning down Saddam Hussein and his weapons of mass destruction. We must go on saying that, and I agree with the noble Lord that we must ensure that the battle for hearts and minds is not now put on one side but that we continue to engage in it.
4.18 p.m.
Lord Hurd of Westwell: My Lords, on exactly that point, will the noble Baroness accept that most of us, following my noble friend, believe that the Government are quite right to accept the result of the Secretary-General's negotiation, subject to the points that she made, and to link that acceptance to a new insistence that if Saddam Hussein were to breach the terms of the new agreement, he would at once be forcibly punished.
But will she also accept, following points made from all parts of this House, that if we are now going to sustain pressure over weeks and months of the kind she indicated, we need a firmer basis of support from Arab governments and Arab public opinion than we have at present? I was much struck by the absence of support in Egypt last week. It is one thing to have tepid acquiescence—that may be enough if you are in for a short sharp strike. But if you are in for sustained pressure over weeks and months, you need more than that.
As the noble Baroness has already said, there is no valid comparison between the conduct of Iraq and the conduct of Israel. But is it not important that the Government should now use their support for the United States, which has been total and in my view correct, to ask and press hard that the United States insist that the

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Prime Minister of Israel carry out Israel's obligations as regards the peace process so that the process can have some life breathed back into it?
Baroness Symons of Vernham Dean: My Lords, I believe that Her Majesty's Government have always made clear that the president of Israel and the Israeli Government should comply with Security Council resolutions. In particular, we have expressed enormous concern about the annexing of the whole of Jerusalem and the illegal settlements. Of course, we need a firm basis of support in the Gulf over the coming weeks and possibly even months.
However, I hope that the noble Lord, Lord Hurd, accepts that the support we have had in the Gulf from a number of states may not have been articulated as loudly as we might have liked. Nonetheless there was a great deal of support. We must understand that for a number of Gulf states, saying what they did to us in private might not have been entirely judicious in public because of the threat of retaliation to which they felt they were susceptible. But, yes, the basic point that the noble Lord made that this is now a sustained effort and we must not let the diplomatic initiative fall away is well taken.
The Earl of Onslow: My Lords, will the noble Baroness accept congratulations from a reactionary anachronism? That may possibly embarrass her, but it seems to me that the Government have played their hand extremely well. They have been further helped by the fact that the French and Russians were saying: "No, we don't agree with the British and the Americans but. O Saddam Hussein, if you don't do something, the British and Americans will thump you!" Consequently, that shows it is much better to have a slightly diverse European foreign policy with people acting in concert in Europe in their own diplomatic interests than to try to run a committee on foreign policy. That will obviously not work if we have an Austrian or a Luxembourger sticking his oar in.
Baroness Symons of Vernham Dean: My Lords, I may say that I am never embarrassed by a compliment which is well meant. I shall certainly convey it to my right honourable and honourable friends who have done so much of the hard work in relation to Her Majesty's Government's efforts on the matter. The noble Earl made the point about a diverse European foreign policy. The point is that we need effective foreign policy. On this occasion we have had it.
Lord Craig of Radley: My Lords, the mandate refers to eight presidential sites in Iraq which will be subject to the special procedures. Do we have absolute confidence that eight is the final number and that there are not additional presidential sites which might be added at some future stage?
Perhaps I may also take the opportunity of asking whether Her Majesty's Government will bear in mind the importance of the ability to deploy forces rapidly
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and sustain them overseas at some distance from home in contributing to the successful outcome that we have achieved?
Baroness Symons of Vernham Dean: My Lords, I am sure that we all join the noble and gallant Lord in his compliment to Her Majesty's forces who are doing such an excellent job on our behalf.
The noble and gallant Lord asked whether eight presidential sites were enough. It is eight presidential sites that will be subject to the special provisions which were referred to in my right honourable friend's Statement which I read to the House. However, the noble and gallant Lord must remember that none of the sites is excluded. If the sites are not among the eight they will be in other sites which are covered quite unequivocally in what has been agreed in the memorandum of understanding. The memorandum of understanding is triggered immediately, unconditionally and without restriction. To say anything more at the moment would not be sensible. Indeed, I cannot do so, as the matter will be discussed in the Security Council this afternoon. I hope that the details will emerge in due course.
Lord Elton: My Lords, at present we have inspection teams in Iraq under the cover of a series of resolutions and an agreement that they shall complete their work. When they have completed their work and are confident—if they ever are—that all weapons of mass destruction have been destroyed, presumably they will be withdrawn. It occurs to me that in the debate on her last Statement, the noble Baroness was convincing in telling us that any brewery or chemical factory could swiftly be turned into a factory for making weapons of mass destruction. Presumably, when their task is completed, the inspection teams will be withdrawn and the resolutions will cease to have force. Can the noble Baroness assure us that thought is already being given to how we then secure the interests of the rest of the world against a further onslaught of this kind?
Baroness Symons of Vernham Dean: My Lords, the Statement that I read to the House referred to Saddam Hussein complying fully with Security Council resolutions. That includes Security Council Resolution 687 which refers not only to the destruction of current weapons of mass destruction but also the destruction of the means of making more.
My right honourable friend's Statement also referred to making sure that the very threat from the weapons of mass destruction was also gone before Security Council resolutions are lifted. So it is perfectly clear that those who are looking at the detail of these issues are looking not only at the weapons which already exist but at the way in which such weapons might be manufactured in the future. For that reason, it is important that we find the precursors which we know exist for the biological and chemical weapons which so far UNSCOM has been unable to find. So I can give the noble Lord, Lord Elton, the assurance that he needs on this important question.
Baroness Nicholson of Winterbourne: My Lords, during this crisis a number of the Iraqi people in Iraq

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and the surrounding countries have been in touch with me. Perhaps I may, on their behalf—if it does not seem forward—offer their gratitude to the British Government and to the noble Baroness for the exceptional work they have carried out in assisting in the facing down of Saddam Hussein. I offer their gratitude for ensuring that the British Government and the British people are in the forefront of this effort. They are deeply grateful. There should be no misunderstanding about that.
However, also on their behalf perhaps I may ask the noble Baroness whether we can now think profoundly as a nation about their human rights. We should recognise that Saddam Hussein has dragged their rights down to the pit of hell, that Iraq as a modern state has the capacity to be successful and wealthy. That has been destroyed by Saddam Hussein himself. The rights of the Iraqi people as well as those of the Kuwaiti and Iranian prisoners of war inside Iraq should now be uppermost in our minds.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Baroness for what she said. I also thank her because it is reassuring to know that, despite the deplorable regime running Iraq, the truth of the situation is getting through, albeit perhaps only to small groups of people. It is reassuring that we know that in Iraq itself there is knowledge of what is happening outside Iraq on these questions.
The noble Baroness raised, as she has done on previous occasions highly persuasively, the issue of human rights. Yes, of course they must be addressed in Iraq. We know the capacity that there has been in that country for slaughter of its own citizens. The fact is that within the past few weeks we know there have been mass executions in Iraqi gaols. Hundreds of people have been slaughtered in Iraqi gaols in the past few weeks. When one uses the word "hundreds", the numbers are so great that one cannot comprehend the magnitude of what we are discussing. But every one of those was an individual, and every one may not have been guilty of any great crime. They may have been in the unfortunate position of being in opposition to the Iraqi Government. I thank the noble Baroness for what she said and agree with every word about the humanitarian concern which must be pursued.
Lord Kennet: My Lords, the noble Baroness has twice answered questions about the double standards which have been in operation in the policy of America and ourselves between Iraq on the one hand and Israel on the other. In answer to questions on each occasion she has mentioned the peace process. This is of course not such a vital matter but there is a double standard there. The row with Iraq has been about working with weapons of mass destruction. Can the noble Baroness say whether there is any hope that we shall press our American friends to try harder to get Israel to do something about their weapons of mass destruction?
Baroness Symons of Vernham Dean: My Lords, if I may say so to my noble friend, I think I have answered such questions considerably more than twice—and not only in answer to questions. I tackled the matter in a
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quite forthright way when I addressed your Lordships in a debate last week. We do not stop tackling these issues in relation to Israel. We do so constantly, bilaterally, and by other means at our disposal. I have every confidence that we shall continue to tackle these questions with Israel in the forthright and robust way which your Lordships' House would expect.
Lord Marlesford: My Lords, in the words of the Prime Minister, given that Saddam remains an evil and brutal dictator, and given that he did not himself put his signature on this agreement, does the noble Baroness agree that if this agreement is broken the time for reimposing arms inspections will have passed and the time will have come to remove Saddam and his regime? Does she agree that this will best be done not necessarily by a shooting war but by psychological warfare? Would it not be desirable to start making contingency plans to that end fairly soon?
Baroness Symons of Vernham Dean: My Lords, I can only reiterate what my right honourable friend said in another place this afternoon. He said that any prevarication or obstruction by Saddam Hussein of the smooth operation of the inspections in accordance not only with the current agreement but in accordance with the previous Security Council resolutions will not be accepted by any member state and will inescapably be followed by the most severe consequences for the Iraqi regime. I do not think I have to be more explicit than that at this stage.
Lord Randall of St. Budeaux: My Lords, perhaps I may take the opportunity of congratulating the Government on the way in which they have handled what has clearly been an extraordinarily difficult diplomatic situation. In the Statement by the Prime Minister it was clear that Saddam Hussein must never be allowed to carry on with breaches of this kind ever again. Under the new agreement, what will now actually trigger the use of force and how will that differ from the current agreement?
Baroness Symons of Vernham Dean: My Lords, what will trigger the use of force is prevarication or obstruction by Saddam Hussein which is tantamount to flouting the memorandum of understanding, a copy of which will be placed in the Library of your Lordships' House. I think also that my right honourable friend's Statement makes clear that although we have progressed a very long way over this weekend, thanks to the skilful negotiation of the Secretary-General, we also have a very long way still to go. Our task is by no means over.
Lord Gilmour of Craigmillar: My Lords, can the Minister elaborate on what she said about double standards? The noble Baroness sought to draw a distinction between Israel and Iraq, and said that we could not negotiate with Iraq but that we could discuss with Israel. In fact, however much we discuss with Israel, Israel goes on expanding her illegal settlements

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and stealing Palestinian land. What value does the noble Baroness think applies to these discussions with Israel, and is it not really a distinction without a difference?
Baroness Symons of Vernham Dean: My Lords, I think that the events of the past few days have served only to underline that what I have said on this matter in the past is right and that there are no double standards. The fact is that once we were able, through the Secretary-General, to get into a discussion with members of Saddam Hussein's regime, and once we were able to secure an agreement, the threat of force has been withdrawn. The forces are still in that part of the world but there is no imminent threat of war. The fact is that we are still discussing and negotiating with our friends in Israel about how we can ensure that they do comply with Security Council resolutions. It would be absurd to threaten force when discussions are going on, but the scale of the two problems is entirely different. I would draw the attention of the noble Lord to the fact that this is not just a question of compliance with Security Council resolutions and not just the difference between a regime that has used weapons of mass destruction and one which has not. It is also a question of dealing with people who are willing to try to talk through the very real differences that exist. I think that everything that has happened in the last few days has shown that the policy of Her Majesty's Government has been entirely vindicated.

Crime and Disorder Bill [H.L.]
4.35 p.m.
House again in Committee.
Schedule 2 [Procedure where persons are sent for trial under section 42]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 208:
Page 83, line 45, at beginning insert ("Subject to paragraph 10A below").
The noble and learned Lord said: With the leave of the Committee, I should like to move Amendment No. 208 and speak at the same time to Amendments Nos. 209, 210 and 211.
Before the Statement on Iraq we were dealing with Clause 42 of the Bill, which permits indictable-only offences to go fast track to the Crown Court without the usual stages in the magistrates' court. The amendments I shall move relate to those provisions. Much of Schedule 2 of the Bill, to which these amendments relate, is concerned with what should happen to related charges where the indictable-only charge which caused the case to be sent to the Crown Court is for some reason no longer being pursued. In those circumstances, it would clearly be unjust for the either-way charges automatically to be retained in the Crown Court. It may be that, but for the effect of the indictable-only charge, both the magistrates and the defendant would have been content for them to he dealt with in the lower court: hence the rather complicated provisions in paragraph 5
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onwards, which are modelled on the mode of trial provisions in the Magistrates' Courts Act 1980 as amended by Section 49 of the Criminal Procedure and Investigations Act 1996.
Those provisions which are mainly in paragraph 5 onwards are not, however, appropriate in the case of young people to whom the mode of trial procedure does not apply. The objective once again is to ensure that the defendant is not disadvantaged when he or she finds himself or herself in the Crown Court for an either-way charge through the accident of its having been associated with an indictable-only charge which is no longer being pursued. It follows that the considerations which determine whether the Crown Court should deal with a juvenile should be the same as those which would normally be used by the magistrates in deciding whether to commit him to the Crown Court for trial. That is the effect of the amendments.
The amendments provide for a young person in such a case to be remitted to the magistrates' court for trial except in two circumstances. These are either that he is charged with an offence which is a grave crime for the purposes of Section 53 of the Children and Young Persons Act 1933 and the court considers that it should be possible for him to be sentenced under that provision, or that he is charged jointly with an adult on an either-way offence and it is necessary in the interests of justice that they should both be tried at the Crown Court. Once the indictable-only charges have gone, in only those two circumstances will the juvenile stay in the Crown Court. There is a further amendment. No. 210, but that simply corrects a typographical error. I beg to move Amendment No. 208.
Lord Waddington: Perhaps I can take this opportunity of making some general comments on Schedule 2 and then invite the noble and learned Lord to correct me if I have the situation wrong, which may well be the case.
The procedures set out in Schedule 2 remind us that doing away with committal proceedings may place a considerable additional burden on the Crown Court. It may be worth while reminding ourselves as practitioners that Clause 42 does not mean that, every time a person is brought before a magistrates' court charged with an offence triable on indictment, the case must go to the Crown Court. When a defendant appears before a magistrates' court charged with an offence triable only on indictment and on reflection it appears to both the defence and the prosecution that a lesser charge could meet the justice of the case, there is no reason why the charge should not be withdrawn, a lesser charge put to the defendant and the matter dealt with summarily on the same day.
I can remember cases where I appeared before a magistrates' court and committal proceedings were commenced. It then became apparent that not only was the major charge misconceived, but also that the lesser charge which was covered by the statements was one which could conveniently be tried by the magistrates. On those occasions the committal proceedings were terminated; the magistrates' court changed its identity from being committing magistrates to magistrates sitting

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summarily; the lesser charge was put to the defendant; he elected to have the case dealt with by the magistrates and the matter was dealt with on that day. Just because a person has been charged with an offence which is only triable on indictment, there is no reason why practitioners should not bear in mind that that does not mean an end to the matter; in other words, that they can all sit back and let the matter go to the Crown Court with all the attendant burdens on the Crown Court that that entails.
One further point should be made clear, though I do not recommend this course for one moment. There is nothing in Schedule 2 to prevent a defendant turning up on the day the case is listed for trial and, before arraignment, arguing that the statements do not disclose an offence. Obviously that is highly undesirable and messes up the court list. But it surely is not right to give the impression that the only way in which a trial can be aborted is by initiating the procedures set out in Schedule 2; making a special application to the court before the day of trial and then there being some hearing before the court or some determination by the judge that there is no case to answer.
I hope that I am right on those two points. They may allay some people's fears that the new procedure is hound to put a considerable additional burden on the Crown Court.
Lord Henley: I rise briefly to say that we have no objection to these amendments. I take the opportunity also to thank the noble Lord, Lord Williams, for helpfully writing to us at an early stage with details of the various government amendments that were to be proposed. Those were dealt with in his letter of 30th January.
The noble Lord mentioned three amendments in his letter—Amendments Nos. 208, 209 and 211—and no mention was made of Amendment No. 210. However,I worked out for myself, as the noble and learned Lord the Solicitor-General stressed, that it only corrects a typographical error. I am grateful for the assistance the Government provided on this occasion and we have no objection to the amendments.
Lord Falconer of Thoroton: I am grateful for the intervention of the noble Lord, Lord Waddington. He is right when he says that these provisions only apply where there is an indictable-only offence. It means that if the indictable-only offence drops away, there is specific provision within Schedule 2 for the matter to revert to a less elevated mode of trial; namely, a summary trial.
I believe that deals with the noble Lord's first point and it is a point worth underlining; namely, the fact that one starts off on an indictable-only route, does not mean that one must stick with it if a lesser charge, which is not an indictable-only one, looks more appropriate. I am grateful to the noble Lord for reminding us, and practitioners in the wider world, of the position.
In relation to the position of applications for dismissal, the noble Lord has seen paragraph 2 of Schedule 2, which provides for applications to be made
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to dismiss charges on the papers. I draw attention to the fact—I am not sure that this is what the noble Lord had in mind but it may be—that such an application can he made either orally or in writing to the Crown Court. It can therefore be made at any time, subject to the rules. I hope that meets the noble Lord's second point. I am not sure that it does, but it is the best that I can do at the moment. If I have not met the point, perhaps he will raise it with me.
Lord Waddington: It seemed an obvious point and hardly one worth making. Leaving aside Schedule 2 entirely, there is nothing in the new Bill which prevents a person appearing on the day of trial, when the case is listed for trial and before arraignment, arguing that he should not stand trial for the offence because the papers before the court do not reveal an offence.
Lord Falconer of Thoroton: That is absolutely right and that is a right that any person standing trial on indictment has in any event at the moment. It is an important point and I am sorry that I did not pick it up quicker. I believe that deals with the points made by the noble Lord, Lord Waddington. I am grateful to the noble Lord, Lord Henley, for indicating his support for the amendments.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 209 to 211:
Page 84, line 21, at beginning insert ("Subject to paragraph 10A below").
Page 85, line 24, after ("if"') insert ("he").
Page 85, line 43, at end insert—
("10A.— (1) This paragraph applies, in place of paragraphs 5 to 10 above, in the case of a child or young person who—

(a) has been sent for trial under section 42 of this Act but has not been arraigned; and

(b) is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no offence that is triable only on indictment.

(2) The Crown Court shall remit the child or young person for trial to a magistrates' court acting for the place where he was sent to the Crown Court for trial unless—

(a) he is charged with such an offence as is mentioned in subsection (2) of section 53 of the 1933 Act (punishment of certain grave crimes) and the Crown Court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or

(b) he is charged jointly with an adult with an offence triable either way and the Crown Court considers it necessary in the interests of justice that they both be tried for the offence in the Crown Court.

(3) In sub-paragraph (2) above "adult" has the same meaning as in section 42 of this Act.").
The noble and learned Lord said: With the leave of the Committee, I shall move these amendments en bloc. I beg to move.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
4.45 p.m.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 212:
Before Clause 44, insert the following new clause—
CROWN PROSECUTION SERVICE: POWERS OF NON-LEGAL STAFF
(". For section 7A of the 1985 Act there shall be substituted the following section—
"Powers of non-legal staff.
7A.—(1) The Director may designate, for the purposes of this section, members of the staff of the Crown Prosecution Service who are not Crown Prosecutors.
(2) Subject to such exceptions (if any) as may be specified in the designation, a person so designated shall have such of the following as may be so specified, namely—

(a) the powers of a Crown Prosecutor in relation to decisions whether to institute or continue criminal proceedings;

(b) the powers and rights of audience of such a Prosecutor in relation to—

(i) applications for, or relating to, bail in criminal proceedings;

(ii) the conduct of criminal proceedings in magistrates' courts other than trials.

(3) A person so designated shall exercise any such powers subject to instructions given to him by the Director.
(4) Any such instructions may be given so as to apply generally.
(5) For the purposes of this section—

(a) "bail in criminal proceedings" has the same meaning as it has in the Bail Act 1976 by virtue of the definition in section 1 of that Act; and

(b) a trial begins with the opening of the prosecution case after the entry of a plea of not guilty and ends with the conviction or acquittal of the accused."").

The noble and learned Lord said: Amendment No. 212 inserts a new clause in the Prosecution of Offences Act 1985, with a view to giving the Director of Public Prosecutions the power to designate persons who are not lawyers and give them power to conduct criminal proceedings in magistrates' courts and also to review cases.
The new clause gives effect to two recommendations in the report, Reducing Delay in the Criminal Justice System. One was that the Director of Public Prosecutions should confer on staff of the Crown Prosecution Service who are not lawyers, the power of a crown prosecutor to review files; the other, that such lay staff should be able to present uncontested cases in magistrates' courts.
The new clause enables the DPP to designate members of CPS staff who are not legally qualified for two purposes. The first is making decisions whether to institute or (more usually) continue cases; at present a decision to prosecute cannot be taken by any member of staff of the CPS who is not a crown prosecutor. The second is conducting criminal proceedings in magistrates' courts other than contested trials. Such proceedings include bail applications, which non-qualified staff can already be designated to deal with under Section 7A of the Prosecution of Offences Act 1985.
A lay member of staff who has been designated under this clause will have the same powers and rights of audience as crown prosecutors. Such a person would be required to exercise those powers subject to instructions given by the DPP, which would cover (among other things) the circumstances in which it would be appropriate for proceedings to be discontinued. Lay presenters are already successfully used in substantial numbers of cases brought in the magistrates' courts by prosecuting authorities other than the CPS; for example, HM Customs & Excise and the Health and Safety Executive.
I should like to emphasise that the effect of this provision is not to extend the rights of lay presenters to review cases or to appear in cases beyond the proposals advanced by Narey in his review of delay in the criminal justice system. In effect, that would deal with uncontested cases of a relatively minor sort. I beg to move.
Lord Meston Lord Meston moved, as an amendment to Amendment No. 212, Amendment No. 212A:
Line 32, at end insert—
("(6) The Director, when exercising his powers under this section—

(a) shall act in accordance with the general principle, and

(b) shall not act in any way which would he incompatible with the statutory objective.

established by section 17 of the Courts and Legal Services Act 1990.
(7) The Director shall only exercise his power to confer on members of the staff of the Crown Prosecution Service the powers and rights referred to in subsection (2)(a) and (b)(ii) above if and to the extent that the Crown Prosecution Service has qualification regulations and rules of conduct which have been approved pursuant to Part I (or, in respect of any alterations thereto, Part II) of Schedule 4 to the Courts and Legal Services Act 1990.
(8) For the purposes of this section. Parts I and II of Schedule 4 to the Courts and Legal Services Act 1990 shall apply as if the Crown Prosecution Service were—

(a) in the case of Part I. a body seeking designation as an authorised body; or

(b) in the case of Part q, an authorised body.'"').

The noble Lord said: The Royal Commission report which led to the introduction of the Crown Prosecution Service proposed that it should be set up in such a way as to recognise the importance of independent legal expertise in the decision to prosecute and to make the conduct of the prosecution the responsibility of someone who is legally qualified. That was the basis upon which the Prosecution of Offences Act 1985 was passed, setting up the CPS.
The first inroad into that came with the introduction of Section 7A of the 1985 Act through the Courts and Legal Services Act 1990. That was confined to bail applications, more limited than the new Section 7A which the Government now propose in their amendment. When the 1990 Act was in Committee on 29th January 1990 my noble friend Lord Hutchinson of Lullington argued powerfully against it. He said:
"Competence, experience and knowledge are all essential".—[Official Report, 29/1/90 col. 14.1
He was supported by the noble Lord, Lord Mishcon, who stated the need for a professional person with professional experience and knowledge. Later in debate the Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, said that it was not the intention to allow unqualified staff to screen cases. He went on to say:
"Provided that the person handling this kind of application is competent and adequately trained, and provided that the appropriate controls arc there, it is clear that an unqualified person can provide the service that the courts require".—[Official Report, 5/2/90; col. 682.]
Now that it is intended to replace Section 7A with a new version allowing extended powers of delegation, it is, I suggest, even more important that the non-legal staff who may be given power to decide whether to institute or to continue criminal proceedings and to conduct proceedings other than trials in the magistrates' courts should have sufficient skill and experience and recorded, ascertainable training.
The decision whether to commence or to continue criminal proceedings involves considerable responsibility, with implications for defendants, victims and the courts. Uncontested criminal proceedings in the magistrates' courts are not necessarily trivial or straightforward. Even what seems routine to those who work in the courts is not routine to those before the courts, particularly for the first time. The liberty of the individual can be at risk. Decisions by prosecutors can require judgments about what is an acceptable plea and an acceptable basis for plea. The proposed new section gives no indication that there will be independent, professional judgment provided at any stage. There is nothing to indicate any level of legal professional supervision or monitoring. The new Section 7A(3) and (4) merely provides for instructions to be given which may be of general application.
The amendment which I move comes from the Bar Council. But, so as not to upset my noble friend Lord Thomas of Gresford, I emphasise that the concerns underlying it are not the preservation of professional positions. The Association of First Division Civil Servants has also expressed concern, pointing out that Amendment No. 212 has little connection with speeding up the criminal process but is a cost cutting measure. If it is to become reality, safeguards must be built in. Hence Amendment No. 212A seeks to make the exercise of the powers under the new Section 7A referable to the framework for legal services in this country, which provides for qualifications, training and enforceable rules of professional conduct. In other words, at the very least we should have some assurance of the competence, adequate training and appropriate controls mentioned by the then Lord Chancellor in 1990. I beg to move.
Lord Windlesham: It is fitting that these two amendments relate to a clause which raises for the first time the status and functions of the Crown Prosecution Service which are not otherwise covered by the Bill. I regret that there has been much criticism of the CPS in recent years, not all of it by any means well informed and some of it wide of the mark. That led to the establishment of a wide ranging review under a former
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Lord Justice of Appeal, Sir lain Glidewell, which has yet to report. I am sure I am not alone in the House in paying tribute to the very distinguished public servant, Dame Barbara Mills, who serves as Director of Public Prosecutions.
We should not forget that experienced, fair minded and competent prosecutors, who are not associated with the investigative process prior to charging, are as essential to the proper working of the process of justice as are defence lawyers. At the same time it is reasonable to accept that in the interests of improving efficiency, minimising delays and controlling costs there is an argument for devolving some of the prosecution responsibilities and functions on to non-legally qualified staff. But I ask the Solicitor-General whether it is wise to do this before Glidewell has reported. I accept that there is a legislative window. Hence, presumably, the fact that this complete new clause arrives by way of an amendment to the Bill. But the issues are currently being subjected to careful and independent scrutiny, and I think it is unfortunate to act in advance of hearing what Sir lain Glidewell has to say and the Government's response to whatever recommendations he may make.
The reservations expressed by the Association of First Division Civil Servants have already been referred to by the noble Lord, Lord Meston. The FDA argues that in the clause the Government are going further than the recommendations last year of the Narey report on reducing delay in the criminal justice system, to which the Solicitor-General has already referred. That inquiry, as its title implies, dealt with the issue of delay. Glidewell is looking at the operations, the structure and the working of the Crown Prosecution Service far more widely.
The FDA concerns can be summarised in a list of questions which I wish to put to the Solicitor-General. If he cannot manage to answer all of them without notice off-the-cuff, I should be grateful if he could write to me. Will the designated lay staff be suitably trained and qualified? Is enough time being allowed for this? Will they be members of a professional body external to the CPS? Will they be acting under the direction of a legally qualified crown prosecutor, as recommended by Narey'? Will their responsibilities be restricted to guilty pleas in magistrates' courts? Will they be working at premises separate from police stations; and if not, does the Government consider that there would be a risk of their independent status being prejudiced?
Lord Ackner: As has just been said, it seems to me that the Government are pre-empting what the Glidewell Committee may decide; and more so since the FDA has made representations to that committee. One could well find that when the committee comes to provide its decision it has upheld the very submissions that have been made in this House. That would be most unfortunate.
I suspect that this suggestion is not designed essentially to deal with delay. It seems to me that it is a proposal that could well be directed principally towards saving money. If one sets out to do that in this type of situation, then one is running a serious risk of prejudicing the quality of the justice that results. I know

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that saving money has been a criticism directed at the CPS—Certainly by the Bar—who have suggested that some of the unfortunate failures in prosecutions (and many have been referred to) have resulted from the CPS not being allowed, I expect, to pay appropriately for the services that it seeks to retain. The CPS has been the subject of considerable criticism and no doubt some of it is not justified. I know that criticism comes not only from the Bar, but also from the circuit Bench, which is much involved in work which is presented to it by the CPS.
I have already mentioned as regards another amendment that there exists a procedure for extending rights of audience. It may be that the Lord Chancellor does not like it, but the fact of the matter is that it exists. There is a statute which says that it is only through recourse to that procedure that rights of audience should be granted. I refer to Section 27 of the Courts and Legal Services Act 1990.
I support the amendment of the noble Lord, Lord Meston, because he seeks to make the necessary provision adaptable to the Director of Public Prosecutions so that an application can be made to the Lord Chancellor's Advisory Committee and the procedure then put in place. I support the amendment and I respectfully resist the amendment proposed by the Government.
Lord Henley: We all share the concerns of the noble Lord, Lord Meston, about the government amendments. If this amendment is to be accepted by the Committee, I hope that the Government will very seriously consider accepting the noble Lord's amendment or something on its lines. As has been made very clear, decisions on whether or not to prosecute are among some of the most difficult that a prosecutor will have to make. They require very difficult assessments of the legal sufficiency of the evidence, its reliability and calibre, together with the application of factors which are relevant to the public interest including the nature of the defendant's record, the effect on the behaviour of the victim and other public considerations.
I also share the concerns expressed by the noble Lord, Lord Meston, my noble friend Lord Windlesham and by the noble and learned Lord, Lord Ackner, as regards the motives behind the government amendments and the reasons for them. Are they merely about cost and administrative convenience? We are also concerned about what training will be offered to those who will be affected by the government amendments, whether that training will be sufficient and what experience of court work will those involved have.
My noble friend Lord Windlesham also made the very valid point that the report commissioned from the former Lord Justice, Sir lain Glidewell, has not yet been produced and therefore the government amendment was possibly premature. I agree with my noble friend on that point, and it seems to be something with which the Government themselves agree. When the noble Lord, Lord Thomas, moved his amendment earlier relating to an extension of rights of audience for solicitors, it was resisted by the noble and learned Lord the Lord
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Chancellor on the grounds that he was to report to the House fairly soon on an entire review of the question of the rights of audience of solicitors in the courts. Therefore, it was said that it would be premature for the noble Lord, Lord Thomas, to move his amendment.
For much the same reason, in advance of the report of Lord Justice Glidewell, it would also be premature for the Government to press ahead with their Amendment No. 212. As my noble friend Lord Windlesham argued, it may be that the Government will argue that this is a suitable legislative opportunity. I have not noticed the Home Office being slow in coming forward with legislation. I am fairly sure that there will be further legislation next year. If the Government are looking for a suitable opportunity they will have no difficulty in finding one. For that reason I very much hope that, if the noble and learned Lord the Solicitor-General is not prepared to accept the amendment of the noble Lord, Lord Meston, he will consider very seriously whether he ought to press ahead with his amendment at the moment or whether it might be better to leave that to another Bill in another year.
Lord Falconer of Thoroton: My Lords, I am very grateful to Members of the Committee for their various contributions to this significant debate. I hope that I shall be able to put their minds at rest as to what the Government propose. I shall deal first with the point raised by the noble Lord, Lord Meston. He referred to the Philips Royal Commission which emphasised the need for lawyers to consider whether or not people should be prosecuted. That was said, but it also considered whether in the less complicated guilty plea it would be appropriate for lay presenters to be used. The report said that there had been wide consultation on the issue and found no objection to the point in principle, but that the problem was a practical one, it being that in the magistrates' court there was not a simple, uncontested case list. Therefore, there was not much point in using lay presenters because one could never isolate a list in the court that they could deal with. In his proposals Narey seeks to deal with that by proposing that, in order to speed up justice, there should be co-ordination with the magistrates' courts and the police whereby one can identify guilty pleas in moderately straightforward cases. They would be dealt with in a very short time on the basis of an abbreviated file, which could be reviewed by a lay presenter. If the appropriate co-operation could be obtained then the objections that Philips identified, which were practical and not of principle, could be overcome. I share, as do the Government and Narey, the belief that if these practical difficulties can be overcome then, subject to appropriate safeguards, there is no reason why one should not have lay presenters dealing with that kind of case. This is not the thin end of the wedge, but a sensible use of resources.
The noble Lord, Lord Meston, went on to ask—
Lord Belstead: I have listened carefully to what the noble and learned Lord has been saying, but where is that repeated on the face of the Bill?
Lord Falconer of Thoroton: It is not repeated on the face of the Bill because the Bill gives the DPP an

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enabling power to designate people to be lay presenters in the circumstances that I have outlined. It would be genuinely difficult to seek to define, within the terms of the section, something which is sufficiently precise to give effect to what I have just said. But I have set out the intention. We shall consider whether it can be made more perfect in terms of the draft amendment, but that is the intention. I hope I have made that clear. There is no sinister purpose or hidden agenda behind this, but to give effect to Narey whose report, as the noble Lord knows, has been published.
Lord Henley: Does the noble and learned Lord imply from that answer to my noble friend that he would consider amendments to the new clause that the Government are adding to the Bill, but might limit the powers of the director in terms of whom he could or could not designate?
Lord Falconer of Thoroton: Although I cannot give any guarantees or assurances, we shall consider any proposed amendment and its purpose.
It may be helpful to answer the point raised by the noble Lord, Lord Meston, by going through the questions asked by the noble Lord, Lord Windlesham, because they broadly overlap. Will the staff be trained? Yes, they will be. No staff member will be involved who has not had appropriate training. Will they be qualified? Not in the sense of being legally qualified, but they will be used only once they have had appropriate training. However, there will be no formal qualification of any sort. Will the staff belong to any external professional organisation? There is no requirement at present, but we shall consider whether or not there should be some external force. Will they be acting under supervision? Yes, they will—the supervision of the chief Crown prosecutor. Will they deal with guilty pleas only? Yes, they will. Indeed, the wording of Amendment No. 212 specifically restricts their activities to guilty pleas. Will they be working at premises separate from police stations? The answer to that is, "Not completely necessarily" because the Narey proposals specifically involve possible arrangements whereby presenters, both qualified and unqualified, could be present at police stations in order to assist the process. If a lay member of staff is at a police station, he will always work alongside a chief Crown prosecutor. I emphasise the Government's intention that the presenters should not in any way compromise the independence of the Crown Prosecution Service—that is, independence inter alia from the police.
I genuinely hope that my answers deal with all of the understandable anxieties that noble Lords have mentioned in relation to this proposal. I should add that the system will be piloted before it is rolled out throughout the country, so there will be opportunities to see how it works and what changes or amendments need to be made.
The noble Lord, Lord Windlesham, asked why we do not wait until Sir lain Glidewell has produced his report on the Crown Prosecution Service. The answer is that in July 1997 my right honourable friend the Home Secretary indicated in another place that we were accepting Narey's recommendations in his report on
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delay. One of those recommendations was the use of lay presenters. We need to use lay presenters to give effect to the Narey proposals because that package of proposals includes, for example, the indictable-only offences going straight to the Crown Court. If one cannot use lay presenters on the simple cases, there will not be the resources available within the CPS to do the other things proposed by Narey in relation to dealing with delay. That is why we accepted those proposals in July 1997 and that is why we have not waited until Sir Iain Glidewell has reported. In fact, Sir Iain's review team is intending to report towards the end of next month. His report will be available before the Bill becomes law, so if anything in that report requires us to look again we shall have the time to do so.
Finally, I come to the point that underlay both the intervention of the noble and learned Lord, Lord Ackner, and the amendment tabled by the noble Lord, Lord Meston—the question of why we do not use the existing 1990 Act procedure which provides all the protections. My noble and learned friend the Lord Chancellor indicated how that works. It grinds extremely slowly and it would literally take years before any progress was made. In the Government's view, there are genuine and legitimate concerns about the speed with which criminal justice moves in this country. Resolving those legitimate concerns should not have to await the extremely cumbersome process of the 1990 Act. That is why we do not accede to the amendment proposed by the noble Lord, Lord Meston. In the circumstances, I respectfully ask the Committee to accept my amendment and the noble Lord. Lord Meston, to withdraw his amendment.
5.15 p.m.
Lord Belstead: Before the noble and learned Lord sits down, I wonder whether I might put a suggestion to the Government. As far as I am concerned, the noble and learned Lord the Solicitor-General has been very informative and persuasive, but what he has said does not appear on the face of the government amendment. If it is impossible for that to happen and impossible also for the Government to accept the amendment proposed by the noble Lord, Lord Meston, have the Government considered the desirability of making the amendment subject to order by affirmative or even, if the Government prefer, by negative resolution? That would be a way of tackling some of the criticisms that have been made and it would not require further primary legislation.
Lord Falconer of Thoroton: The way in which the amendment works is to give the Director of Public Prosecutions the power to designate certain people, subject to exceptions, to have the power to exercise all of the powers of the Crown prosecutors. I do not think that it would be appropriate to exercise that power by either an affirmative or a negative order. Amendment No. 212 states:
"The Director may designate, for the purposes of this section, members of the staff of the Crown Prosecution Service who are not Crown Prosecutors".

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That would be much more appropriately dealt with as a managerial matter by the DPP rather than by a negative or affirmative order. Therefore, although I am grateful for that suggestion, I do not think that it is necessarily an appropriate way of dealing with the problem.
Lord Belstead: I am guilty of not making myself clear. I am suggesting that as the scheme is to be trialled—a piece of information that we have not heard previously—the trials could take place and it could then be possible to bring the provisions of the amendment into force, by order, subject to either the affirmative or the negative resolution.
Lord Falconer of Thoroton: We could not pilot it without the legislation. We would need the power to be able to use lay presenters. The amendment has been tabled precisely because the First Division Association brought a court case in 1989 which effectively prevented the DPP from designating lay presenters to review and present cases. In the light of that divisional court case, it is plain that we need legislation to be able to move forward even in relation to the piloting. I do not think that what the noble Lord is suggesting is possible as a way forward.
Lord Ackner: I wonder whether the noble and learned Lord can help me with one point. Narey's recommendation was as follows:
"I recommend that the Prosecution of Offences Act be amended to grant the DPP the necessary powers to confer on lay staff the powers of a Crown Prosecutor,"—
I emphasise the next words—
"subject at all times to direction by legally qualified staff".
Why was not that included on the face of the Bill?
Lord Falconer of Thoroton: Because the legislative authority that is required is to give the lay presenters the power to act as Crown prosecutors. That is what the DPP cannot do at the moment because of the FDA case in 1989. As a matter of legislative drafting, that is what we took to be all that was required in relation to the Bill. That is the answer.
Lord Ackner: I do not think that the noble and learned Lord has answered my question. Why was there not included on the face of the Bill the proviso that Narey provided, that those powers were,
"subject at all times to direction by legally qualified staff'?
Lord Falconer of Thoroton: Because the only authority that is required is to give the DPP the power to designate. With respect to the noble and learned Lord, I think that that point is dealt with in what will be new Section 7A(3)—perhaps I should have referred the noble and learned Lord to this earlier—which states:
"A person so designated shall exercise any such powers subject to instructions given to him by the Director".
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That may well meet the point. It must be subject to such instructions as are given to him by the director. That will include appropriate instructions in relation to who supervises him and what kinds of cases he can deal with.
Lord Windlesham: The noble and learned Lord will have sensed apprehension in the Committee about this late proposal. The Government propose the insertion of a completely new clause at Committee stage. The noble and learned Lord informed the Committee that the report by Sir Lain Glidewell was due shortly. I ask the noble and learned Lord whether he will consult the Home Office and ask that department to be more precise as to when it expects to hear from Sir lain Glidewell. Will he urge the department to process the report internally very speedily so that it does not get delayed in the Home Office—something that has occurred from time to time in the past—and that the findings of the report on this aspect are made available to the Home Office Minister who takes this Bill through Standing Committee in the Commons?
Lord Falconer of Thoroton: The Glidewell team is to report to the Law Officers, not the Home Office. I am sure that the noble Lord, Lord Windlesham, is far more aware than I am that reports that go to the Home Office often become lost; the Law Officers' Department has so few reports that they are never lost. We are literally on the edge of our seats awaiting Sir lain Glidewell's report. I can give the noble Lord an assurance that the moment the final report of Sir lain Glidewell is available we will consider all of it with immense care and expedition. If and in so far as there are any parts of it that relate to this particular provision as soon as reasonably practicable we shall bring them to the attention of the Minister who is to deal with the matter in the Commons so that the other place has the benefit of any comments that Sir lain may have on this aspect.
I have noted the concerns expressed by the Committee in relation to this matter. It may be that the most appropriate course is to ensure that the guidelines to be applied in relation to the appointment of lay presenters are published at a stage when they can be considered either in this place or in another place before the Bill finally becomes an Act. It is to be hoped that that will lay to rest many of the concerns that have been raised in the course of this very useful debate.
Lord Thomas of Gresford: I have been waiting to hear from the noble and learned Lord why delay will be cured by the proposals to bring in lay presenters. Until quite recently there was a useful way of dealing with the backlog of Crown Prosecution Service cases whereby young barristers were given a day's list for a fixed fee. They cut their teeth on a variety of cases. The advantage of such a method of dealing with delay was that, first, it got rid of the backlog; secondly, it gave very valuable experience to young members of the Bar; and, thirdly, it maintained the quality of independence from the investigation authorities that is so very important.

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What troubles me about the present proposal is that it has nothing to do with delay; it is to do with cost cutting. It is cheaper to have lay presenters do this work than to employ young members of the Bar, as happened in the past. These proposals therefore appear to be a return to the old days when prosecution was in the hands of the police inspector and the decision making of the prosecutor, the local policeman, was always subject to query. The introduction of lay prosecutors in a similar way closely attached to police stations, as they will be in many instances, is a throwback to the past. I thought that we had got away from that, thus ensuring the independence of the prosecutor from the investigation. This is not in any sense a plea for restrictive practices by the legal profession as a whole; it is to do with the quality of decision-making. It is worth paying for the quality of decision making by prosecutors to ensure that justice is done in cases that can affect so many members of the public whose confidence in the criminal justice system must be maintained.
Lord Falconer of Thoroton: I hope that nothing I have said has in any way denigrated the importance of decisions about prosecutions and the importance of proper presentation of cases even where there are relatively minor charges because they can affect the reputation and liberty of individuals.
I should like to deal with the three points just raised by the noble Lord, Lord Thomas of Gresford. How does it affect delay? As I thought I had explained earlier, the Government accepted the Narey proposals which involved a package of measures. It would not be possible to do the other things proposed by Narey—for example, that indictment-only offences should go to the Crown Court—without greater flexibility in the resources available to the CPS thereby using lay presenters to do the more simple guilty pleas so that lawyers can do the cases that require the attention of a qualified lawyer.
Secondly, the noble Lord suggested that this was a throwback to the past and independence might be threatened. We believe that that is not so. We are concerned here with straightforward guilty pleas that will be reviewed and presented by lay presenters under the direction of a Crown prosecutor only after suitable training. We do not believe that that significantly threatens the quality of justice in those cases.
Thirdly, the noble Lord, Lord Thomas of Gresford, like all barristers, referred to the halcyon days of his youth when at the last moment barristers were provided with a long list of simple cases in a magistrates' court. He omitted to point out that the trouble with such a long list of cases was that there was no proper opportunity to consider the detail of all those cases. Although I do not believe that the quality of presentation was excellent, I am sure that that was necessarily a handmaiden of justice in those circumstances. For all those reasons, and with the greatest respect, I reject the criticisms of the proposals that have been made by the noble Lord, Lord Thomas of Gresford.
Lord Meston: I am particularly grateful to the noble Lord, Lord Windlesham, for suggesting that it would
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have been better to await the completion of the work by Sir Lain Glidewell, and also for articulating the concerns that underlay my amendment to the Government's amendment. I take some comfort from the fact that it appears the Law Officers are likely to receive, at least in draft, the conclusions of Sir lain Glidewell's work before the Bill completes its passage through Parliament, if not its passage through this House, and that at least some consideration will be given to a further amendment of the proposed new clause.
I am also grateful to the noble and learned Lord, Lord Ackner, for his unqualified statement of the risks of cutting costs in this particularly difficult area. I received some reassurance from the noble and learned Lord the Solicitor-General, who indicated that in practice there would be safeguards, and clearly this is only an enabling measure. But the fact that the DPP needs authority by statute to do what cannot be done at the moment does not mean that appropriate safeguards cannot be provided in some way on the face of the Bill.
The noble and learned Lord the Solicitor-General referred to the intended new Section 7A(3), which I referred to in my opening remarks. I do not find it very comforting. I am not wedded to the wording of my amendment to the Government amendment or to the 1990 Act analogy which, in any event, is to be reviewed. It may well be that a less sophisticated, more straightforward amendment is called for and I reserve my position at Report stage. Meanwhile, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
On Question, Amendment No. 212 agreed to.
5.30 p.m.
Clause 44 [Bail: increased powers to require security or impose conditions.]
Lord Henley Lord Henley moved Amendment No. 213:
Page 34, line 10, leave out subsection (1).
The noble Lord said: I had some problems this morning trying to remember why I put down this amendment. Clause 44(1) refers to the Bail Act. When one considers that Act, the subsection appears not so soft as I originally thought because it deletes the words:
"If it appears that he is unlikely to remain in Great Britain until the time appointed for him to surrender to custody".
That leaves Section 3(5) of the Act reading,
"he may be required, before release on bail, to give security for his surrender to custody".
I want an explanation from the Government as to what precisely they are doing. Are they merely extending the ability to require security to everyone rather than just those who are unlikely to remain in Great Britain until the time appointed? In other words, is the use of that requirement to give security becoming more general? Or have I misunderstood it?
I would be grateful for an explanation from the noble Lord because it might assist me to work out why I put down this amendment and whether it serves any purpose. I beg to move.
Lord Williams of Mostyn: This is an amendment of great utility because it gives me the opportunity of

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confirming what the noble Lord has decided in his own mind. He is quite right. At the moment the courts have very limited powers to require a security—that is a sum of money or an item of value—against a defendant's surrender to custody in due time. The noble Lord is also right about those powers being limited to the belief of the court that the person granted bail is unlikely to remain in Great Britain. We want to extend that. It is anomalous that the powers are so limited. It is notorious that many cases are over-long delayed because bailed defendants simply do not bother to turn up on the due date. It is a constant feature and blemish, not least in magistrates' courts.
We want to remove the limitation to give the court the opportunity to exercise its discretion. The option available at the moment is limited in the way I have mentioned, as identified by the noble Lord, and this is a useful tool to ensure that justice runs smoothly, expeditiously and without delay. It is something that is within the discretion of the court; it is not an obligation on the court to insist on security in every case.
On the basis of that explanation, I hope that the noble Lord is content.
Lord Henley: I am absolutely content with the explanation given by the noble Lord. I apologise if I originally thought that the noble Lord and new Labour were going soft on these matters. I am grateful for the confirmation that we still have a very firm line emerging from head office. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 214:
Page 34, line 14, leave out subsection (2).
The noble Lord said: The purpose of this amendment is to give the noble Lord, Lord Williams of Mostyn, another opportunity to explain what he has in mind by adding to Section 3(6) of the Bail Act a condition that the person bailed should attend for an interview with an authorised advocate or authorised litigator. Whether this is designed to drum up business for the legal profession I am not sure. It is extraordinary that it should be made a condition of bail that a person should attend to see his solicitor or counsel. I simply ask the noble Lord to explain. I beg to move.
Viscount Tenby: I was the only speaker during Second Reading to express reservations about an accused being obliged to seek legal advice as a condition of bail. I intimated that such a condition might impair the future relationship between an accused and his legal adviser.
Memory can play tricks, especially with one of advanced years. I thought that the noble and learned Lord, the Solicitor-General, with his usual courteousness and incisiveness, had calmed my fears but on returning to the Official Report today I find that that is not so and that he kept his own counsel on the point, probably quite rightly because in the intervening period
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I have come to think that my earlier fears were unfounded. I am sure that the Government team will not infer from this that lack of response on any point at Second Reading will always happily result in the matter going away and not being subsequently raised.
My change of heart lies principally in the fact that the Bill's preoccupation with reducing the time between the commission of an offence and the sentence is absolutely right. Provided that justice is not compromised in any way, relatively minor points should be subservient to that objective. Knowledge of a failure to secure legal advice would come not from a defence solicitor—who would not have been appointed at the time—but from inquiries by police or the justices' clerk. In such circumstances it is difficult to see how such a development would blight the future relationship between the defence and the client.
For that reason I do not support the amendment which has been hesitantly put by the noble Lord, Lord Thomas of Gresford. I apologise for what might appear to be a volte face between Second Reading and Committee.
Lord Williams of Mostyn: The noble Viscount is right; he did raise this matter. We gave it consideration bearing in mind his experience and expertise.
The purpose of the provision is plain. Again, it is notorious that some defendants simply do not take legal advice, have an adjournment on bail and come to the next hearing and say, "I haven't been to see my solicitor." That is a device that everyone who has been to a magistrates' court is familiar with. I recognise that it is less of a feature in the Crown Court for different and obvious reasons.
What we are saying is that in some circumstances the charge against a defendant requires that he should be legally represented or at least legally advised, normally, of course, at public expense, and quite rightly too in appropriate cases. But a defendant often pays no attention to the fact that he also has obligations. If the state has an obligation to provide him with legal advice or legal representation, he has a corresponding obligation to take legal advice.
This is a perfectly simple scheme saying to a defendant that the court may say, "A condition of your bail is that you take legal advice and have legal representation before the next hearing, which will be in 28 days." That will deal with an obvious, well-known blemish on the system which leads to endless, unjustified delays.
As the noble Viscount pointed out, it is true that, if there is a failure, thereafter the defendant will be required to indicate when his bail term expires whether or not he has seen a solicitor. There is no sinister plot to enrich barristers, and certainly not any plot to enrich solicitors. It is just a device of practical utility which should commend itself, and I, for one, am heartened that the noble Viscount, with all his experience, sees the virtue of it. I hope that that explanation will satisfy the noble Lord, Lord Thomas of Gresford.
Lord Thomas of Gresford: I am grateful to the Minister for that explanation. It is the follow-through

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that concerns me; that is, if a person fails to see his solicitor or counsel, presumably his bail will be withdrawn and he will find himself locked up. I would find that an unhappy position in which to be, especially if one were then required to visit a disconsolate client who had just, perhaps through illness or for some other reason, failed to take the legal advice that was offered to him. I do not wish to press the amendment, and with that caveat I seek leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 44 agreed to.
Clause 45 [Use of live television links at preliminary hearings]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 215:
Page 34, line 28, after ("court insert (", and with his legal representative.").
The noble Earl said: Amendments Nos. 215 and 216 seek to improve and clarify what is intended in the Bill. The use of live television links at preliminary hearings is a sensible administrative measure which, among other things, eliminates the often complicated procedure of making remand prisoners available to the court, usually so that they can be remanded for a further period. As the court appearance may take moments, the effort involved in making them available is disproportionate.
The two amendments clarify what the prisoner may do in connection with a television-linked court appearance. He should clearly have some discussions with his defence agent, and he should be given the chance to consent to the televised process. There seems to be some tension in subsection (1) between,
"after hearing representations from the parties",
and,
"direct that the accused shall be treated as being present".
I wish to find out whether the court can make a direction to use the televised link only if both parties, and not just one of them, agree to its use. I beg to move.
Lord Falconer of Thoroton: As the noble Earl pointed out, the purpose of Clause 45 is to reduce the delay and the associated costs caused by defendants in custody travelling back and forth between prison and court for what are preliminary hearings often lasting only a few minutes. By reducing the number of journeys between prisons and courts the measure is also expected to contribute to greater security. Indeed, it is an outstanding recommendation of the Learmont Report.
The effect of the amendments would be to give the defendant a veto on whether or not the television link is used. That is not the intention of the present draft. So the answer to the noble Earl's question as to whether the consent of both parties—that is, prosecution and defence—is required that it is not.
I should make clear that it is the Government's intention, before introducing the measure more widely, to pilot the arrangements. The pilots will be designed to ensure that defendants are not disadvantaged by the new procedure. Early trials of the TV-linked equipment have satisfied us that the necessary technology is available and good enough to allow all parties to participate fully
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in the hearings. If, despite that, defendants were allowed to veto such arrangements for no good reason, the real gains to be made for the court and prison services would be seriously undermined.
The noble Earl spoke also to Amendment No. 216. It has always been the intention that the defendant would be able to communicate with all relevant parties to the proceedings, including his or her legal representatives. We recognise that advocates often use preliminary hearings for further discussions with their clients, and that those need to be confidential. Although it is not directly relevant to the measure itself, the pilot projects will be looking at ways to allow such discussions to take place. One possibility is the availability of a confidential telephone line. Obviously, for open questions during the hearing itself the advocate will be able to use the TV link, along with any other party to the proceedings.
It is important to remember that the court retains a discretion as to whether to allow the use of the television link. If there is a good reason for the defendant to be present physically, the court can hear representations from the defendant or his legal representative and can then exercise that discretion and require the defendant to be produced from custody. I hope that my explanation answers the noble Earl's questions, and allays his concerns, and that in those circumstances he will feel able to withdraw the amendment.
5.45 p.m.
The Earl of Mar and. Kellie: I am grateful to the Solicitor-General for that answer. I am certain that those who encouraged me to table the amendments will be interested in what he had to say. I do not intend to press the amendment. The pilot projects will produce some interesting results. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 216 not moved.]
Clause 45 agreed to.
Clause 46 [Sentences extended for licence purposes]
Lord Windlesham Lord Windlesham moved Amendment No. 217:
Page 35, line 12, leave out ("custodial").
The noble Lord said: Amendments Nos. 217 and 218 are the first amendments which refer to Part IV of the Bill. In dealing with offenders, the side note to Clause 46 refers to:
"Sentences extended for licence purposes".
The two amendments may appear to be somewhat arcane and technical. They call for some explanation, which I shall attempt to give as clearly as possible.
The purpose is to avoid the confusion that can result from using the same description to refer to what are two essentially different types of sentence. Until abolished by the Criminal Justice Act 1991, the courts had a power to impose a sentence of imprisonment longer than the maximum prescribed for a particular offence if certain conditions were satisfied.
The provision fell into the category of what had seemed to some in Parliament at the time of its original enactment—although not to many in the judiciary—to

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be a good idea, but it was little used in practice. By 1991 it had become virtually obsolete, and the provision was repealed in that year.
Now the same description has been resurrected in Clause 46(2) to refer, not to an extended period in prison, but to an extension in the length of time a person convicted of a sexual or violent offence would be subject to supervision on licence after release from custody.
The reasoning, as set out in what I think we must all regard as the complicated drafting of Clause 46, is that the custodial term represents the penal element in the sentence—that is, the proportionate punishment deserved by the circumstances of the crime—whereas the extended period spent on licence in the community after release, and subject to recall to prison, is intended to prevent the commission of further offences, and, in the wording of the clause, to secure the offender's rehabilitation. One might note that it is good to see that word coming back into criminal justice statutes.
The purpose of my amendments is to clarify the distinction by deleting the word "custodial" in line 12 of Clause 46(2) and substituting the word "duration" for the word "term" in the same line. It may not have escaped the notice of some of your Lordships—certainly, I hope those on the Front Bench—that the amendments are supported by the noble and learned Lord, Lord Bingham of Cornhill. Since his public duties do not enable the Lord Chief Justice to be present in person, and in order to avoid the risk of misrepresenting his views, I shall quote his words when writing to indicate his support for the amendments. He stated:
"The point to he made is that the second component of the sentence described in Clause 2(b) as the 'extension period' should not be described as a 'custodial' sentence because it is not a period spent in custody, unless of course the offender breaks the terms of his licence and is recalled. For the same reason the expression 'duration' is preferable to 'term', again making it plain that during 'the extension period' the offender is not in custody".
It will be seen that the amendments do not strike at the intention of the Government's policy, nor do they alter in any way the manner of its implementation. They are solely designed to clarify the wording of a new law which the courts, the Probation Service, the Parole Board and others will have to apply.
Ministers on the Front Bench have invariably been patient and courteous in their responses to more than 200 amendments. But, government amendments apart, few or possibly none have been accepted as they stand. This is the time to show what they can do, even if the brief is marked "resist". Often, parliamentary draftsmen do not have the most open minds, and I stress that this is purely a matter of drafting. Although there is an important distinction behind the amendment, it is a drafting amendment. Bearing in mind the fact that the noble and learned Lord the Lord Chief Justice has given his support in the words which I have quoted, and the respect which we understand is accorded by the
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Government Front Bench to the views of the higher judiciary, I hope that the amendments will be accepted. I beg to move.
Lord Ackner: This application for leave to amend, so to speak, should be an undefended application. The opening words of the clause make the position. so admirably explained by the noble Lord, perfectly clear. It states:
"This section applies where a court which proposes to impose a custodial sentence for a sexual or violent offence considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation".
Therefore, right from the outset the clause is contemplating extending the licence period, not the custodial period. From that, all else follows.
Lord Mackay of Drumadoon: I offer a measure of support to the amendment and perhaps a face-saving way out of the dilemma which will undoubtedly face the Minister who is to reply. Clause 70 deals with the proposed new Section 210A of the Criminal Procedure (Scotland) Act 1995, which seeks to introduce a similar provision into the law of Scotland. The approach followed by the draftsman in that clause goes a long way to meeting what is sought by my noble friend and supported by the noble and learned Lord, Lord Ackner. In particular, it makes it clear that the custodial description is applied only to the term of imprisonment and not to the whole sentence.
It may well be that further reflection by the draftsman, having regard to what his colleague has done in drafting Clause 70, may meet the point.
Lord Belstead: I support the amendment and give the warmest welcome to Clause 46 which provides for extended sentences for licence purposes. It increases the protection of the public as a result of increased supervision and increases the period of time during which a prisoner on release licence under Clause 46 will be liable to recall. At the same time, it will also assist with the rehabilitation of offenders and so, it is to be hoped, prevent reoffending. With respect, and I hope not appearing to be presumptuous, I warmly congratulate Ministers opposite and the Secretary of State on producing Clause 46.
However, I fall into the same category as my noble friend Lord Windlesham and the noble and learned Lord, Lord Ackner, in believing that the wording is not entirely clear. The Committee stage is not about taking the Bill away having changed nothing. The brownie points are always for Ministers who listen, as do these Ministers, and take action where necessary. I hope that they believe that this is an appropriate occasion to do so.
Lord Falconer of Thoroton: Although the noble Lord, Lord Windlesham, was so seductive in moving the amendments, referring to his distinguished supporter the noble and learned Lord, Lord Bingham, and although the noble Lord, Lord Belstead, wished to give us an opportunity to win brownie points, my instructions say "resist".

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With great respect to the noble Lord, Lord Windlesham, and the noble and learned Lord, Lord Ackner, I believe that as a matter of law it is correct to resist. Perhaps before explaining why, it is worth emphasising that there is no disagreement between any of us that the purpose and effect of this section is correct. It is simply a matter of which descriptive words are used to achieve that end.
As the noble Lord, Lord Windlesham, pointed out, the Bill states:
"that is to say, a custodial sentence the term of which is equal to the aggregate of',
what is described as "the custodial term" and a further period described as "the extension period". The noble Lord wishes the provision to read:
that is to say, a sentence the duration of which is equal to the custodial term and the extension period".
The clause currently describes an extended sentence as "a custodial sentence", the term of which is equal to a custodial term of a certain length, plus an extension period. I can see why the noble Lord suggests removing the word "custodial". An offender with an extended sentence would normally spend the greater proportion of that sentence in the community on licence rather than in prison. As the noble Lord said, he thinks that it is inapt to refer to that as a custodial sentence and believes it to be better to replace the word "term" with the word "duration".
However, the clause is correct to refer to an extended licence period as part of a custodial sentence. That is because during the extended licence period an offender is subject to recall to prison, in exactly the same way as one released on licence as part of any other custodial sentence under the Criminal Justice Act 1991. The new Section 44(3) and (4) of the 1991 Act, inserted by Clause 47, makes it clear that the licence may be revoked during the extension period. So the extended sentence is a single custodial sentence to which Part II of the 1991 Act applies.
In other words, you have a sentence which is one custodial sentence. You can be recalled during the licence period, which is the extension period. That is done by reference to the 1991 Act. Such a sentence under that Act would be a custodial sentence so described in that Act. That is why the terms are used in the way that they are in Clause 46 of the Bill.
Also, by virtue of Clause 69(5), the phrase "custodial sentence" takes its definition from Section 31(1) of the 1991 Act. It thus includes both a sentence of imprisonment and the various analogous disposals available in respect of offenders under 21, such as detention in a young offenders institution or under Section 53 of the Children and Young Persons Act 1933.
I therefore believe that the description of an extended sentence in Clause 46 is correct—namely, as a custodial sentence. It is right to refer to it as a "term" rather than "duration". To suggest that an extended sentence is not a custodial sentence might be misleading and create uncertainty because of its relationship with the 1991 Act. Therefore, despite the seductive and persuasive way in which the amendment was advanced, I hope that the noble Lord will agree to withdraw it.
6 p.m.
Lord Windlesham: I shall study that explanation with great care. I still find it difficult to understand how the description "custodial sentence" can be used to cover a sentence, the extended part of which is not served in custody. It would seem simpler and more comprehensible to say that it is a sentence and part of it is custodial and part of it is non-custodial. In that case, why cannot it be described as a sentence of the court rather than as a custodial sentence?
The noble and learned Lord has his authority on a matter of law in the shape of the parliamentary draftsmen. I have mine in the shape of the most senior judge in England and Wales who will have to implement the provisions. Therefore, I should like to refer back to my legal source while the noble and learned Lord refers back to his.
Lord Ackner: Before the amendment is withdrawn, perhaps I may ask the Solicitor-General to explain to us exactly what the judge should say to a defendant in a case to which this applies. I offer my suggestion and the noble and learned Lord can deal with it. I assume that the judge will say to the accused, "I am imposing upon you a custodial sentence of 10 years but that is not the end of the matter. For the protection of the public, I am going also to impose upon you a licence which will oblige you, during the period of five years following your release, to be … ", and then he will deal with the matter of good behaviour and so on. Therefore, the only period of custody to which the judge will refer is the initial 10 years.
Lord Falconer of Thoroton: It would be presumptuous of me to say how the judge will sentence when it comes to a Clause 46 sentence. I simply draw attention to the fact that it is a custodial sentence with two parts to it: a custodial term and an extension period. I am sure that the judges will be able to explain that in appropriate language.
Lord Windlesham: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 218 not moved.]
On Question, Whether Clause 46 shall stand part of the Bill?
Lord Belstead: As the noble and learned Lord the Solicitor-General said, during the extension period under Clause 46 there will be the ability to recall those who are under extended supervision. Therefore, I had a quick look at the financial effects of the Bill and I see that it is said that although Parts IV and V will have increased financial effects in relation to the Probation Service and electronic monitoring costs, additional costs to the Parole Board and the police as a result of recalling to prison those who have breached their licence conditions are expected to be minimal. I do not know that I would disagree fundamentally with those words, but there will be some increased costs.
But then, looking at the Marshalled List, I looked over the page to page 6 and see that Amendment No. 218A attempts to abolish Section 2(5) of the Crime (Sentences)

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Act 1997 which is to do with mandatory life sentences for second serious offences of wounding or causing grievous bodily harm. Of course, those life sentences will be subject to the Parole Board deciding, after the tariff has expired, when those particular offenders will be allowed out. I know from a previous existence, when I was connected with the Parole Board—and I must declare that interest—that extra resources have never been considered for that work by the Home Office.
Therefore, I beg Ministers not to consider that the Parole Board can continue on and on carrying additional responsibilities with no extra resources. Section 2(5) of the Crime (Sentences) Act 1997 will cost the Parole Board additional resources and Clause 46 will cost something in terms of extra recalls. I merely rise to draw attention to what is a small but significant point.
Lord Williams of Mostyn: I am grateful for the way in which those observations were made. I undertake to the noble Lord that I shall make a particular point of transmitting those concerns to the Secretary of State.
Lord Belstead: I am most grateful to the noble Lord.
Clause 46 agreed to.
Clause 47 [Effect of extended sentences]
Baroness David Baroness David moved Amendment No. 218ZA:
Page 36, line 12, at end insert—
("(4A) Where a prisoner to whom this section applies is recalled to prison, he may make representations in writing at annual intervals with respect to his continued detention.
(4B) The Secretary of State shall refer to the Parole Board the case of a person who makes representations under subsection (4A) above.").
The noble Baroness said: This is a probing amendment designed to establish the Government's intention concerning the review of cases of offenders recalled from the extended supervision period which Clause 46 provides.
These extension periods could be up to 10 years in the case of sexual offences and five years in the case of violent offences. We support this measure, but in view of the serious implications for individual liberty of recall for such extended periods, we consider that such offenders should have the right to request a review of their continued detention at regular intervals. I beg to move.
Lord Williams of Mostyn: This is a matter of some importance and I shall deal with it at greater length than would otherwise be the case because I recognise the noble Baroness's underlying concern. This amendment would give those who have been recalled on extended sentence licence an opportunity to make written representations on an annual basis. We agree that offenders who are made subject to extended periods of supervision on licence should not find themselves recalled to prison for what might be a long period of time—as the noble Baroness said—without any recourse to challenge their continued detention. We believe that the existing provisions provide adequate opportunities for representations to be made. I can assure the Committee that an offender recalled while on an
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extended period of supervision is to be treated in the same way as any other recalled licensee, and that includes the right to make written representations about detention and the right to apply for release on parole.
Clause 47 inserts a new Section 44 in the Criminal Justice Act 1991 which makes provision for extended sentences. It will mean that the same period of imprisonment will be available, followed by a considerably longer period of post-release supervision. The provisions as they already stand provide for this. All offenders on licence who are recalled to prison in the circumstances specified by the noble Baroness under Section 39(1) or (2) of the 1991 Act, which will include those recalled during an extended period of supervision, are entitled to make written representations with respect to their recall, and the Secretary of State has a duty to refer such representations to the Parole Board. This is provided for by subsections (3) and (4) of Section 39. In addition, subsection (3) provides that an offender who is returned to prison shall be informed of the reasons for his recall and of his right to make representations. All written representations must be referred to the Parole Board for consideration, and Section 39(5) provides that if the Parole Board recommends that the offender should be released immediately, the Secretary of State shall give effect to that recommendation.
Section 39 does not provide for such representations to be made on an annual basis. However, under Section 35(1) of the 1991 Act, all long-term prisoners are entitled to apply for release on parole once the half-way point in their sentence has been reached. Offenders who have an extended sentence of four years or more are to be treated as long-term prisoners, by virtue of subsection (7)(b) of new Section 44. For the purposes of applying for release on parole under Section 35(1), the half-way point of their sentence is taken to be the half-way point of the period served in custody, the custodial term. As any recall to prison will always be after that half-way point, because that is the earliest point at which the offender may be released in the first place, this means that an offender recalled while on an extended licence will be eligible to apply for release on parole at any point during the extension period. If an application is turned down by the Parole Board, the offender may apply again the following year. Therefore offenders given an extended sentence will be in exactly the same position as those who are recalled to prison while serving a normal sentence. I have taken a little time to explain the position as I recognise the legitimate concern that lay behind the probing amendment.
6.15 p.m.
Baroness David: I thank my noble friend the Minister for his full and careful response. It obviously needs some study and I should like to talk about it with those who were anxious for me to table this amendment, and decide whether it will be necessary to return at the next stage of the Bill. I believe that it will probably not be necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 agreed to.
Lord Windlesham Lord Windlesham moved Amendment No. 218A:
After Clause 47, insert the following new clause—
MANDATORY LIFE SENTENCE FOR SECOND SERIOUS OFFENCE OF WOUNDING OR CAUSING GRIEVOUS BODILY HARM
(". In section 2(5) of the Crime (Sentences) Act 1997, paragraph (d) shall cease to have effect.").
The noble Lord said: This amendment, which has cross-party support, relates to one of the most outdated and widely criticised provisions of the criminal law and, not for the first time, questions its appropriateness as a basis for triggering mandatory sentences of life imprisonment under the Crime (Sentences) Act 1997. Like the noble Lord, Lord Williams of Mostyn, who has just spoken, I wish to speak for a little while—unlike the admirable brevity of the noble Baroness—because the introduction of mandatory sentences into our criminal law for the first time in modern times other than for homicide offences is a fundamental change and one of profound importance.
As a preliminary comment, it is generally agreed that reform of the 137 year-old statute defining offences against the person, passed in 1861, is long overdue. It has been criticised by the Law Commission for its "antique language", its "irrational arrangement" and the likelihood that a law which is muddled, irrational and unclear—those are the words of the Law Commission—is almost certain to produce injustice. Those sentiments have been echoed by the Home Secretary in his foreword to a consultation paper published as recently as two weeks ago. In that document the Government accepted the case for reforming the Offences Against the Person Act 1861, and published a draft Bill together with the consultation paper.
This recent development adds force to the argument which has been rehearsed previously that it is no longer appropriate or tenable to include the Section 18 offences of wounding, or of causing grievous bodily harm, with intent, in the list of offences in the 1997 Act which automatically attract a sentence of life imprisonment on second conviction. I remind your Lordships that there are eight offences, or categories of offence, which trigger the mandatory life sentence on second conviction. I refer to offences of violence or sexual offences. However, we are talking about just one of that long list.
This is not a novel argument, nor should it have any party political overtones. If my amendment sounds familiar to the Committee, it is because it is in substance almost identical to one moved from the Opposition Labour Front Bench—I speak from the Opposition Benches this evening but not from the Opposition Front Bench—in the course of the Committee stage of the Crime (Sentences) Bill on 13th February 1997. The mover of that amendment was eloquent and concise. He said,
"It seems to us that wounding under Section 18 is of such a variable nature that it ought not to he a triggering mandatory offence".—[Official Report, 13/2/97; col. 372.1
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It is no surprise that the mover should be so eloquent and concise because it was none other than the noble Lord, Lord Williams of Mostyn, who I see is suffering from such prickings of conscience that he needs a glass of water to calm himself. I hope that he will reply to this amendment and not rely on his trusty friend the noble and learned Lord the Solicitor-General. The noble Lord knows perfectly well what the policy of his party was when in Opposition; it is identical with what I put forward now. I could quote extracts of the speech of the present Home Secretary, Jack Straw, in the House of Commons on 4th November 1996 on the Second Reading of the Crime (Sentences) Bill, but there is no need to embarrass the noble Lord further.
Of course it is true that some Section 18 offences of causing grievous bodily harm, with intent, are serious indeed. They are the most serious offences, short of homicide. Nothing should be taken as implicit in this amendment which detracts from that in any way at all. They rightly carry up to a maximum sentence of life imprisonment, not simply on second conviction but on first conviction if the gravity of the offence warrants it. But because of what the Law Commission has criticised so strongly and because of what the Government have now accepted—namely, the drafting of Section 18—at the other end of the scale of this same section is a large cluster of relatively minor incidents, not of causing grievous bodily harm, but of wounding, and not always with prior intent, since attempting to resist or prevent arrest is also included. As the noble Lord, Lord Williams, pointed out last year, a wound simply means a breaking of the skin. So it can have what he described as no more than a trivial physical consequence.
Although the law has been in an unsatisfactory state for many years, until 1997 the courts had discretion to distinguish between the seriousness of the offence and relate it to the sentence passed, whether on first or subsequent convictions. The most cursory scrutiny of some recent Section 18 appeal cases reveals sentences as low as six months, upheld on appeal for biting an opponent's ear during a rugby match. There was also a probation order, increased to six months' imprisonment by the Court of Appeal on an Attorney-General's reference. After careful scrutiny by the Court of Appeal, the court decided that a probation order was a touch too low and that the offence warranted a custodial sentence, but only of six months. The convicted person might already have spent a period in pre-trial detention and we do not know whether or not he needed to go straight to prison. Those are examples at the lowest end of the sentencing range. That is why I have brought them out in this debate.
The Home Office figures in the 1996 Protecting the Public White Paper, published by the previous government, cited an average length for all offences of wounding with intent to do GBH, in the Crown Court

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and the magistrates' court, as 3.2 years. That was the whole range up to very serious offences indeed, whether on first or subsequent conviction; 79 per cent. of convictions resulted in a custodial sentence.
Many of these offences, from the most serious to the least serious, have at least one characteristic in common. They are impulsive rather than premeditated. In addition to loss of temper in sporting encounters (the two examples I have cited already) there are incidents of road rage and numerous disputes at licensed premises as anyone who has had experience either in the courts or, like my noble friend Lord Belstead and I, of reviewing Parole Board cases is only too aware. I have left out of this catalogue my noble friend—if I may call him that, although he very properly sits on the Cross-Benches because of his judicial appointment—the noble Viscount, Lord Colville of Culross, who succeeded me as chairman of the Parole Board and preceded my noble friend Lord Belstead. So there is a trinity of former chairmen in the House this evening.
This is an extremely serious issue. It touches on one of the most fundamental sentencing issues before our community at this stage in our penal history. I invite the Minister to explain to the House: what is the rationale for persisting with the inclusion of such an undifferentiated category of offences which, as we all accept, varies so widely in gravity in the list of serious offences (that is how they are described) which trigger an automatic mandatory sentence of life imprisonment on second conviction?
At the very least, will the Minister consider replacing the present Section 2(5)(d) of the 1997 Act, which embraces all offences under Section 18, with the proposed new offence—in the Government's own Bill published with the consultation paper—of causing intentional serious injury, the most serious of the new categories of offences against the person? The noble Lord, Lord Williams, gave me a moderately helpful reply when I raised the implications of the reform of the Offences Against the Person Act 1861 during debate on the third day in Committee. I hope he will go further today.
Without holding up the proceedings of the Committee unduly, perhaps I may be allowed a final reflection. Penal policy in the United States has been blighted for nearly two decades by mandatory minimum sentences for repeat, or in some cases first, offenders convicted of certain violent crimes and drugs offences. For these categories discretion to treat each case on its merits has been removed from the sentencing courts. Blatant inequities have resulted. They are got round, and the system of justice has continued to function only by the highly undesirable device of prosecutorial decisions after plea bargaining in private as to the nature of the offence charged. The prisons have filled to overflowing, with more and more capacity added at huge expense each year. In 1995 there was a total of 1.5 million prison inmates in the United States, a rate per 100,000 of population five times higher than that for England and Wales; and our prison population was already at a high level in that year.
Less than a year ago the introduction into our own law of mandatory sentences for non-homicide offences was a terrible mistake. It is one that will have far-reaching consequences. By accepting this amendment, the Government could begin to undo part of the harm done to our system of criminal justice. I beg to move.
Lord Ackner: This amendment is a modest and very limited one. It leaves intact the bulk of the provision which deals with automatic life sentences. It only extracts from it this small triggering series of offences.
In the White Paper issued by the previous government in 1990 entitled Crime, Justice and Protecting the Public, whose proposals, principles, and policies were embodied in the Criminal Justice Act 1991, the following statement is to be found:
"The Government rejects a rigid statutory framework, on the lines of those introduced in the United States or a system of minimum or mandatory sentences for certain offences".
I know that it is water under the bridge and now part of our law, but this is the part of the White Paper statement that I wish to stress:
"This would make it more difficult to sentence justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
Since the Home Secretary said in another place on 30th July, at col. 341 of the Official Report of the other place,
"My overriding priority is to secure the safety of the public",
one should consider the validity of the statement,
"It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
The statement is valid. I give five instances where what had happened could have that consequence.
First, there will be occasions when, if the jury are aware—as they could well be—that the defendant faces a mandatory life sentence if convicted, they will for that reason not convict. Where you are dealing with a relatively minor triggering offence, that must be a risk. Secondly, there will be refusals by defendants to enter, as they should and would have done, a plea of guilty. That will add enormously to the congestion of trial lists. It would be a source of great distress to victims who will be required to give evidence, often in sexual cases, which would of course cause them greater tension and unpleasantness. Also, with the heavy onus of proof, the guilty person will on occasions unjustly go free.
Thirdly, it is not difficult to imagine cases where witnesses, particularly those in close relationship with the defendant and knowing the consequences of a conviction, will either refuse to give evidence or will prove unreliable. Fourthly, there is the danger, referred to by both judges and politicians in the course of debates on the previous legislation, of the victim being actually killed by the defendant in order to avoid the risk of detection and subsequent life imprisonment.
Fifthly, in order to be sure of obtaining conviction, there will be cases in which the prosecution will find itself obliged to accept an unrealistic plea bargain. This

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is well known to be the case in America. Thus the discretion in sentencing will largely be transferred from the judiciary, where it should be, to the prosecution.
The previous government hid behind the potential injustice which the automatic life sentence would perpetrate by saying, "Ah well, there is a discretion with the judiciary. When the judge imposes a sentence of life he must say what the period for punishment and deterrence is." With the accent upon openness in sentencing, there will be a positive obligation to do so.
Let us take the case which the noble Lord, Lord Windlesham, mentioned of the wounding attracting only a sentence of six months. This is how it goes in practice: "Mr. Brown, you have been found guilty of two offences—" and they will be referred to—"and I am obliged by Parliament, as a result of that, to sentence you to life imprisonment. I am also obliged by Parliament to explain to you what in reality that means. In reality it means this: I have to decide what is the tariff, the period which you should serve by way of punishment and deterrence. I do so decide, having regard to the mitigation which has been outlined at some length by your counsel. I decide that the tariff should be six months. So although I have imposed a sentence upon you for life, it will be, so far as punishment and deterrence are concerned, six months. Of course, at the end of the tariff period your case will have to be considered by the Parole Board. But you need not be too anxious about that. I have had the clearest of evidence that you are not in any way a danger to society and it is only on that basis that the Parole Board would prolong your incarceration. Therefore, with considerable confidence, you can expect to be released from your life sentence in fact in probably less than six months, having regard to the parole or other provisions which may exist at the time."
That situation was castigated, very rightly, by the noble Lord, Lord Williams of Mostyn, on the Second Reading of the Crime (Sentences) Bill. He said:
"An unjust sentence is also one which allows and recognises no difference in cases and therefore sentences between one crime, one criminal, and another. Putting a tick in a box is no way to sentence in crime. Life is not that simple, and neither is crime".
He went on to say:
"I am going to take a citation from one noble and learned Lord present this evening who is the object of our affection and regard".—[Official Report, 27/1/97: co1.1061.]
He continued quickly to say, in case there should be any mistake, that he referred to the Lord Chief Justice Lord Taylor of Gosforth. The noble Lord, Lord Williams, quoted Lord Taylor as saying, at the same column in Hansard:
"It cannot be right for sentence to be passed without regard to the gravity, frequency, consequence or other circumstances of the offending".
The coup de grâce comes in the following few lines at column 1063, when the noble Lord, Lord Williams of Mostyn, said:
"The sentencing regime for which we contend should, as many noble Lords have said, be open and transparent; hut it is nonsensical to invite a High Court judge to say, 'I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months'.
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That is a perversion of the system. It will bring the whole system into disrepute. If it brings it into disrepute on that basis, it will have brought it rightly into disrepute on that basis".
I should be interested to hear what the noble Lord says. It may confirm the rumour which I hear exists on the Wales and Chester circuit that the noble Lord's bardic title is now Di Chotomy.
6.30 p.m.
Lord Thomas of Gresford: If I am brief, it is because I have the good fortune or the misfortune to follow the noble and learned Lord, Lord Ackner, who has the habit of making every single point that one could possibly make on the matter. Perhaps I may express support for the amendment which was moved with such thought and imagination by the noble Lord, Lord Windlesham. I also support his expression that the legislation was a terrible mistake. We on these Benches contended that that was the situation then and we still contend it today.
I wish to raise three matters. First, experience shows that where there is an indictment, where Section 18 is charged, the first thing that happens—provided identity is not an issue—is that discussions take place between counsel. As a rule of thumb, as a prosecutor, one would maintain a Section 18 charge if a weapon had been used, if it was a knife, a bar or something of that serious nature. Very rarely would one maintain, as a prosecutor, a Section 18 charge if it were a question of fists or even kicking. That is the first stage.
The second stage that one has to consider is this. If in the future it becomes known to a jury that life imprisonment is to be the effect of a guilty verdict when a person is charged with a Section 18 offence, it is highly unlikely, save in the most exceptional circumstances, that a jury will convict on Section 18 at all. That means that the prosecutor's temptation to reduce the charge to Section 20 will be that much greater. It seems to me that in practice Section 18 trials will become rare, Section 20 pleas will be accepted and people who are guilty of more serious conduct, which today would merit a Section 18 conviction, will get away with it.
Finally, may I underline the views that were put forward by the noble and learned Lord, Lord Ackner, about the sentencing process. He has said it all. For a judge to tell a defendant in his sentencing remarks that "I am sentencing you to life imprisonment and that means six months" makes a nonsense of the system. As we said when this legislation went through, it undermines public confidence in the criminal justice system when nonsenses like that can occur. I support the amendment.
Baroness David: My name is attached to this amendment, and I support it really strongly. The case has been put so eloquently by the noble Lord, Lord Windlesham, but there was one point I was going to make about the tariff argument, which was made by the noble and learned Lord, Lord Ackner. It would seem very strange if my noble friend Lord Williams of Mostyn, the present Home Secretary, Jack Straw, and Alun Michael, now a Minister of State in the Home

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Office, who all spoke in favour of this amendment only a year ago, had now changed their minds. I should be most interested to hear their arguments. I do hope that the Home Office has not had this terrible influence within less than a year to make them change their minds. I have sometimes been a bit suspicious about some of my noble friends who seem to be rather more under the influence of the Home Office than I would have hoped, but in this case I very much hope that they will be able to accept the noble Lord's amendment; or, at any rate, the serious suggestion that he made at the end of his speech.
Lord Henley: I find myself in something of a quandary over this amendment and I rather think that the noble Lord, Lord Williams, will feel very much the same about his situation; indeed, he will be in an even greater quandary than I. Normally, I like to support my noble friends Lord Windlesham and Lord Carlisle of Bucklow and on some occasions I would even wish to support the noble Baroness, Lady David, although, as she will recognise, I do not always support amendments which she puts forward. Sadly, on this occasion I cannot offer my support from these Benches to my noble friends over this particular amendment. As my noble friend has reminded the Committee, it is only a little over a year since these new provisions were introduced by my right honourable friend Mr. Michael Howard and we have only had a year to see them in operation. Having been introduced into both Houses of Parliament and agreed to, it would be premature to remove these provisions at this stage.
Having said that, I find myself, as I say, in something of a quandary. I suspect that the position of the noble Lord, Lord Williams, is somewhat worse. He has been reminded by my noble friend Lord Windlesham of his words a little over a year ago, as the earlier Bill was proceeding through both Houses of Parliament. The noble and learned Lord the Solicitor-General reminded us that on top of one of his earlier notes was the word "resist". We have all seen that word on a great many notes prepared for us by officials as Bills pass through Parliament. No doubt the noble Lord has "resist" written very firmly at the top of his brief. Of course, I do not know whether or not that is the case and certainly it is not for me to put forward the arguments against this particular amendment. However, I am looking forward to hearing the noble Lord, with his usual eloquence, putting forward those arguments. I have no doubt that he will do so after I have sat down.
Lord Harris of Greenwich: The reason an absurdity of this kind was put on to the statute book was because of the frenzied pre-election atmosphere obtaining at that time. It was a nonsense; this House knew it was a nonsense when it was debated; and unhappily it remains on the statute book. Here is an opportunity for making some limited progress in putting this matter right.
The noble Baroness, Lady David, and I agree with one another almost always on criminal justice issues, but the one matter on which I am afraid I cannot possibly agree with her concerns this fancy that
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Ministers are surrounded by right-wing officials in the Home Office, all of whom are intent on bending Ministers to their will. That, I can assure the noble Baroness, has no connection with reality at all. Those of us who have been Home Office Ministers know that to be the position and I am sure she will not persist in that argument.
Lord Henley: I feel bound to support the noble Lord. I did not think it was officials who bent the ear of Ministers in the Home Office. I suspect that it is the Ministers themselves in the Home Office who have changed the views they held a little over a year ago and have come to pursue some of the policies previously advocated by my right honourable friend Mr. Michael Howard.
Lord Hylton: I should just like to ask the noble Lord, Lord Henley, the following questions. Does he not see some risk of automatic sentences turning out to be idiotic sentences? Does he really want English prisons to become clogged up in the same sort of way as American prisons?
Lord Henley: As I have said, these matters were debated at some length a little over a year ago and, as I was putting forward, the provisions have only been in place for a year. Therefore, it is right to give them a little longer to have an effect so that we can see exactly how they operate. I do not think it is right that Parliament, less than a year after these provisions were passed, should seek to repeal them.
6.45 p.m.
Lord Williams of Mostyn: It is not "resist" that is written on the top of my note; it is the words, "explain helpfully", and I have just written them on myself!
What this amendment seeks to do is to remove one part, and one part only, of the automatic life sentence offences. As the noble Lord rightly pointed out, this is simply one of 10 and relates to Section 18 wounding or causing grievous bodily harm with intent. I think one needs to pause a moment and consider the full definition. It is not wounding or causing grievous bodily harm; it is committing either of those two offences with the overriding intent of causing grievous bodily harm. In the language of today: some really serious physical injury. The first deployment—
Lord Windlesham: I am sorry, but before the noble Lord leaves that point, could I ask him to elucidate it? In my reading of paragraph (d) of Subsection (5), the words in brackets referring to wounding or causing grievous bodily harm with intent are merely a short description of every offence covered under Section 18 and do not limit certain offences within Section 18. Is that not correct?
Lord Williams of Mostyn: I am not contending to the contrary. What I am saying is what I believe to be a correct summary of the law: that simple wounding or simple grievous bodily harm is not sufficient to constitute Section 18 under the Offences Against the

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Person Act. One has to have the added component of intent, and -intent" there means the intent to cause grievous bodily harm. Of that there can be no doubt, because if the prosecutor fails to prove intent Section 18 cannot be the foundation of a guilty verdict.
Perhaps I may turn to the various ways in which the argument was deployed. First, the noble Lord rightly said that the language of 1861 is likely to be archaic and unhelpful in 1998. The purpose behind the Home Secretary's remarks is that the whole question of the offences under the Offences Against the Person Act needs to be reviewed. Of course, it would necessarily follow that, if the draft Offences Against the Person Bill is enacted in its present form, we shall have to redefine paragraph (d) of Section 2(5) of the Crime (Sentences) Act 1997. But that is an inevitable consequence about which I personally see no difficulties.
The noble Lord, Lord Thomas of Gresford, said that a jury would be unwilling to find a verdict of guilty on a Section 18 offence if it knew that it meant life imprisonment. But life imprisonment is for a second offence. In those circumstances, how is the jury to know that it is a second offence?
Lord Thomas of Gresford: Perhaps I may reply to the noble Lord. This was an issue which I recall being taken up by the noble Baroness, Lady Blatch. She felt that it was impossible that a defence counsel would ever reveal to a jury a previous conviction for a similar offence. I pointed out to her that in practice it is frequently done—I am sure the noble Lord has done it—if there is an advantage to be gained for the defendant. In a situation where there was a second Section 18 charge, which did not involve permanent injury to a person but came within the definition of the offence, one would certainly tell the jury what the result of a guilty verdict would be.
Lord Williams of Mostyn: If one told the jury that, it would be professional misconduct, as has plainly been set out by the Bar Counsel and I believe by the Court of Appeal, Criminal Division. The introduction of a previous conviction to establish that life imprisonment was the likely sentence on conviction of the present charge, would be wholly wrong, as it was found to be wholly wrong by the Court of Criminal Appeal as it then was, when murder was still a capital offence, for counsel to say to the jury, "It is hanging for my client unless you make a recommendation for mercy". There is no doubt about that professional position.
Lord Ackner: That is perhaps a bit simplistic. If the facts fit, one can ask the accused, "Have you committed any previous offence?" and his character can be put in. He may say, "Yes". Let us say that one of the offences is a triggering offence; he can then be asked, "Are you aware what might be the consequences to you, having that previous record, if you committed an offence of the type with which you are charged?". He may answer, "Yes". He can then be asked, "Did you know that before the offence charged here?".
Lord Williams of Mostyn: A judge properly conducting a trial in those circumstances would want to
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know the relevance of the inquiry. I suggest that it has no more relevance than asking a defendant charged with rape, "Do you know what the maximum sentence for rape is?"; answer, "Yes, life imprisonment". "Do you think you would have raped this woman knowing that you were likely to get life imprisonment?".
In practice I do not see any sensible distinction and I retain my position that it is professionally improper to seek that sort of advantage as opposed to a legitimate advantage when putting the defendant's character in on a different basis.
I turn from that because it leads to a further point. Many of the propositions put forward are the usual shibboleths which are brought out on these occasions when there is no better argument to hand. For instance, if juries know that life imprisonment is the maximum sentence for rape at the moment—which they may or may not do—I doubt, in the absence of jury research, that jurors ponder, when having a quick knit or a cigarette, what the sentence is likely to be. Jurors do not work in that way. It demeans the conscientiousness of jurors who have taken their oath to suggest that. Jurors do not say in rape cases, "If we convict, it means life imprisonment", any more than they do in cases involving the difference between murder and manslaughter.
Lord Thomas of Gresford: The noble Lord knows that there is no research on the way in which jurors come to their conclusions. However, one would have thought that speculation in a jury room as to what will happen to a defendant forms a serious and important part of their deliberations.
Lord Williams of Mostyn: I said that there is no research and, there being no research, I am not sure that the noble Lord is any better qualified than I am to speculate what goes through jurors' minds. I am simply therefore attending to argument as opposed to speculation.
The present maximum for Section 18 offences is life imprisonment, and it has been that for a long time. The purpose of the amendments for which we struggled—and it was a struggle—was to make sure that the automatic life sentence (so-called wrongly, but it is a useful shorthand) was not to be absolute. The amendment for which we contended was that, in respect of any of the 10 offences specified by the noble Lord, Lord Windlesham, there was no obligation on the sentencing judge to pass an "automatic life sentence". The proviso was there. We urged it and we received much Cross-Bench support. No judge had to impose such a sentence if there were exceptional circumstances relating either to the offences or the offender which justified the court in not passing the "automatic life sentence".
That was the amendment for which I contended. I withdraw no word that I uttered on that occasion. Fortunately, Members of your Lordships' Chamber tended to agree with what was then the Opposition and supported our amendments which were eventually

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Passed and became part of the Bill. Therefore, when we speak of "automatic life sentences" it is a useful shorthand, but it is not fully accurate.
Lord Ackner: I may be wholly wrong, but I thought that the amendment which we managed to pass in this Chamber and which was castigated by the government as driving a horse and coaches through the Bill—I believe that that is the amendment the noble Lord has in mind—related to the automatic minimum sentences. In regard to the life sentences, I thought that the let-out which the Government provided and which the Opposition were not allowed—if I may so put it in this Chamber—to mitigate, was the tariff system; hence the observation which the noble Lord, Lord Williams, made and which I quoted. The amendment related to the automatic minimum sentences.
Lord Williams of Mostyn: There were two amendments. One referred to the fact that an automatic sentence does not have to be imposed if there are exceptional circumstances relating to either the offences or the offender. That relates to the 10 in the sub-category identified by the noble Lord, Lord Windlesham. The amendment to which the noble and learned Lord, Lord Ackner, refers, is whether such a sentence would be unjust. That is a different amendment relating to the minimum tariffs.
Lord Ackner: I am sorry to prolong this matter. The exceptional circumstances had been put in by the government and the government said, "Do not get too excited about this because, as the law stands, 'exceptional circumstances' means once in a blue moon". That is how it came about that "exceptional circumstances" was not considered adequate.
Lord Williams of Mostyn: I believe that the noble and learned Lord is mistaken. However, I shall revisit this as part of my research. My present understanding is quite plain. Exceptional circumstances relating to this subgroup of 10 was an amendment which was passed relating either to the offences or the offender; and the question of whether it would be unjust related to the minima in respect of repeat burglaries and repeat drug offences. But I shall check that. It is possible that it is I who am wrong and not the noble and learned Lord. Whichever one of us is in error, I dare say that we shall feel quite mortified.
Lord Windlesham: This is an important part of our debate because the Minister has to use every argument he can find to defend something which is difficult to defend. The two examples which I gave of six-month sentences were convictions under Section 18; that is why they went to the Court of Appeal and that is why they were upheld after an Attorney General's reference. Leaving aside whether it comes under the exceptional circumstances or a custodial sentence which would be unjust in all the circumstances, does the Minister think that those saving clauses could be used by the courts not to apply the mandatory life sentence? I should have
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thought that the guidance given to sentencing judges by the Lord Chief Justice—I look to my noble and learned friend Lord Ackner for confirmation—would probably say that that could not amount to exceptional circumstances or to a sentence that was unjust in all the circumstances. What answer can the noble Lord give to that speculation?
7 p.m.
Lord Williams of Mostyn: The exceptional circumstances proviso relates to this subgroup of 10.
Lord Windlesham: I am sorry to interrupt the noble Lord. He keeps referring to a subgroup of 10. I think it is a subgroup of eight.
Lord Williams of Mostyn: The noble Lord is quite right. It is a subgroup of eight. It is the same subgroup. We are dealing with paragraph (d) of one subgroup.
I go to my point. The court is not required to pass the mandatory life sentence, which therefore is not a mandatory one if properly so considered, if there are exceptional circumstances relating either to the offences or the offender. If I understand that correctly, it relates to either of the offences—number one or triggering two—or the offender himself. It is for the courts to decide. But it seems to me that if there are two relatively minor examples of qualifying offences, that could legitimately amount to exceptional circumstances which would justify the sentencer in not imposing the automatic life sentence. That is a matter, of course, for the courts to decide—originally at first instance and then to have the guidance and the guidelines from the Court of Appeal.
Lord Thomas of Gresford: Is the Minister aware that special and exceptional circumstances were considered in the case of Beedie (reported in 3Weekly Law Reports, on page 768, last year, 1997) and that it was held by Lord Justice Rose that they do not mean good reasons; they mean exceptional circumstances so as to take the case completely outside the general rule which is to be applied. "Good reasons" are not enough. "Exceptional circumstances" means exactly what it says.
Lord Williams of Mostyn: I accept that Lord Justice Rose came to the unexceptional conclusion that exceptional circumstances means precisely what it says. I do not know the date of Beedie. I wonder whether it was before or after—
Lord Thomas of Gresford: It was 1997.
Lord Williams of Mostyn: As I was about to say, I do not know whether it was before or after 1st October 1997.
Lord Thomas of Gresford: It was in March.
Lord Williams of Mostyn: I thought that might be so because 1st October 1997 was when the provisions first came into effect. Since then there has been, so far as our researches indicate, only one case where an

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automatic sentence has been imposed. It was a case in which a man was guilty of armed robbery. On the very first day of release from prison he set about another resident at the hostel where he was staying and stabbed him with a knife in the back, the ribs and the chest in an attack that lasted 30 minutes. That happened on the first day out of prison—an automatic life sentence and a tariff of six years was set.
I do not wish to look for support in unlikely quarters, but I believe the noble Lord, Lord Henley, was right in saying that we do not know how these things will work in practice. The experience in practice is so very limited. The commencement date of the provision was 1st October.
It is not entirely plain to me, if this is to be a principled machine-gunning of this subgroup of eight, why paragraph (d) has been selected. I can understand why no attempt has been made to impeach the automatic sentence for attempted murder, soliciting murder, and manslaughter, but what about unlawful sexual intercourse with a girl under the age of 13, or robbery in possession of an imitation firearm, which might just be a plastic water pistol? Is this a principled attack, or is it—dare I question?—simply an opportunist attempt to focus on one part of the provisions? Those with more metropolitan minds than my own might think that opportunism rather than principle was driving some of these observations—not all of them.
Lord Thomas of Gresford: Has the noble Lord changed the principles that he enunciated so clearly and that have been quoted so well by the noble and learned Lord, Lord Ackner? Has his view changed; and if so, why?
Lord Williams of Mostyn: My view has not changed. I believe there ought to be transparency in sentence; I believe the public ought to know what sentences mean; I believe that the present Home Secretary, when in opposition, was quite right in that, in a sense, there has been for too long a collusion between the courts and the lawyers about what sentences really mean.
The noble and learned Lord, Lord Ackner, is always a ready friend in time of trouble because he helpfully reminds me of those words, from which I do not resile. I said that the system should be open. That has been attended to as recently as 22nd January of this year. The Lord Chief Justice issued his practice direction. He said, in respect of what the sentence means in practice, that the judge must explain it, he must set the tariff, he must tell the offender—just as importantly, the victims, the complainants and the public—what the tariff is going to. be, and he will have to spell out what it means in practice.
I believe that is entirely consistent and consonant with what I said ought to be an important central aspect of the criminal justice system, particularly in sentencing. I believe that sentencing is not putting a tick in the box, as is done in some North American jurisdictions, where there is no margin for the court to sentence appropriately. There is a margin here—exceptional circumstances relating to the offences or the offender.
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There is a margin on the mandatory drugs sentences—unjust in all the circumstances. Personally, I do not agree with tick in the box sentences, but this scheme does not allow for tick in the box full-stop. It allows for the reasoned introduction by the judge of the consideration of whether the circumstances are exceptional in relation to the offences or the offender so as to make the sentence not appropriate.
To sum up, as they say in other places, I do not resile from anything I have said in the past. I believe in judicial discretion. I believe that if one changes the law one ought to see how it works in practice as opposed to the basis of prejudiced preview. In all the circumstances, I invite the noble Lord to withdraw the amendment.
Lord Harris of Greenwich: Will the noble Lord explain the advice given to him at the top left-hand part of his brief, where he reassured us that the word was not "reject" but "explain helpfully"? It sounded to me as though he had misread what was at the top left-hand side of his brief.
Lord Williams of Mostyn: Since I myself wrote down "explain" and underlined "helpfully", I believe that is what I have done. What I have done is to point out quite plainly some facts. The commencement of this section was as recent as 1st October last year. The second proposition is that we have had little opportunity to see this in action. The third is a gentle injunction to see how things actually work out; whether they work satisfactorily or not; and if they do not, they will have to be reviewed. But from October to February—I am not about to break into song—is not really a very long time.
Lord Windlesham: I thank the noble Baroness, Lady David, who is a co-sponsor of the amendment, for her effective speech from the Government's own Benches. My noble friend Lord Carlisle of Bucklow, who made such a powerful contribution in the earlier stages of the Committee, asked me to apologise on his behalf to the Committee for his inability to be present. I dare say that his absence has been appreciated more by the noble Lord who replied because he would have had to face another extraordinarily vocal and experienced critic. I thank the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, both practitioners with long experience in the criminal courts, and the noble Lord, Lord Harris of Greenwich, who I left out from my earlier litany of former chairmen of the Parole Board. He held that office as my immediate predecessor.
We have heard tonight the speech of a skilled advocate making the best of an extremely difficult task. We appreciate and enjoy the way in which he did it. He asked whether this was an amendment based on principled objection or whether it was simply an opportunity to embarrass the Government and indeed to embarrass him, although he did not put it quite in those terms. Why did we select paragraph (d) out of the list of eight offences which trigger a mandatory life sentence on second conviction? We selected it for the same reason that he selected it when he spoke just a

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year ago. It is the strongest example of the inappropriateness of this particular section of our criminal law. That is why it was chosen.
In my opening speech I made it abundantly clear that I am totally and absolutely opposed to the entire section. I believe that it was wrong; and that it was the most serious mistake that has been made in our criminal justice system for many years. I shall continue to do everything I can to undermine it. The experience shared with others in this House as regards the mandatory life sentence for murder—another subject for another day—is that the progress made over the past two decades has been inch by inch, bit by bit. The edifice has been eroded until there is only the last plank left. Some of that has been achieved in the courts and some in Parliament. A large part has been the result of decisions by the European Court of Human Rights. That is how changes are made in our criminal law.
I did not expect the noble Lord to say this evening, "I still stick to what I said before and I have persuaded my good friends now". I did not expect to carry this amendment. It may be that we could do so, but I do not propose to call a Division. It is to call attention to the irrationality and deep injustice of mandatory sentencing that I have selected this particular example for debate tonight. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Clause 70 [Extended sentences for sex and violent offenders]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 218B:
Page 55, line 32, leave out from ("court") to ("and") in line 33 and insert ("considers appropriate taking into account—

(i) the seriousness of the offence, or of the offence combined with other offences associated with it, and

(ii) any previous conviction of the offender").

The noble and learned Lord said: This is a probing amendment directed at the provisions of Clause 70 of the Bill. It seeks to explore, if it can, one aspect of government policy that lies behind this clause, and in particular to explore how the Government propose that the courts should take account of the need to protect members of the public when exercising the new sentencing powers that the clause will give them.
It is my understanding from the discussions that took place earlier today in relation to the corresponding English provision that it is intended that this new provision should deal with serious offenders; namely, those who have been convicted on indictment of either sexual or violent offences.
When this Bill was debated at Second Reading very little was said in any of the speeches about these clauses and about their English equivalents. The noble Lord, Lord Williams of Mostyn, described the clauses as extending the supervision of offenders, but they go somewhat further than that in making those who are subject to them the subject of the full rigours of the
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licence system. In particular it affords the opportunity to the courts to impose periods of licence far in excess of the custodial term of the sentence concerned. I stand to be corrected if I am wrong, but as far as I am aware the reasoning behind the new provisions has not been explained in any consultation document or in any other statement of government policy on the matter.
As regards protecting the public at the present time, that can arise in two instances. First, when one is dealing with a determinate sentence it is possible for the court to take into account the need to protect the public as well as the need to punish the offender. The need to protect the public can be taken into account in determining the length of sentence. That is one of the factors that goes into the total sentence.
Secondly, another area in which the issue arises is in deciding whether or not to impose a discretionary life sentence. The fact that an accused is established to be a danger to the public can clearly be a justification for exercising such an option, which is open in every case where the maximum sentence is life imprisonment. If the latter option is exercised by the court, then in fixing the relevant part the judge is directed by statute to leave out of account the issue of protecting the public. In fixing the relevant part all the judge takes account of is the seriousness of the offence and any previous conviction of the accused. That is how the relevant part is fixed. Therefore—to use the word that we heard a moment ago—there is a dichotomy between the approach following the determinate sentence, namely, taking it into account, and in life sentences leaving it out of account.
I seek to explore the provisions of the new Section 210A(2)(b). If the court chooses to follow that route it is charged with imposing a further period: namely, the extension period, for which the offender can he subject to a licence and which is, subject to the provisions of this section,
of such length as the court considers necessary for the protection of the public from serious harm.
In other words, it is the fixing of the extension period and the need to protect the public for a particular period that is very much before the court. But in fixing the custodial sentence the court is charged with imposing the term of imprisonment which it would have passed on the offender otherwise than under this section. In other words, the need to protect the public is taken into account in that matter as well. That is in contra-distinction to the approach which is followed in setting the relevant part in a discretionary life sentence.
When my noble friend Lord Windlesham discussed an earlier amendment he spoke of the English equivalent provision falling into two parts; namely, the custodial part, which was the penal element, and the extended part, which was intended to prevent the commission of further offences. I assume that the noble and learned Lord the Lord Advocate will reply. Was my noble friend Lord Windlesham correct in drawing a distinction in those terms? Alternatively, as I suggest, is the natural construction of the clause as presently framed that it is the Government's policy that if there is held to be a need to protect the public from serious harm from the

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offender on his release that is one factor which should be taken into account in the custodial term and in fixing the extension period? I beg to move.
The Lord Advocate (Lord Hardie): The amendment as framed would have the unintended effect of limiting judicial discretion by restricting the range of facts which the sentencing judge would be entitled to take into account in deciding the appropriate length of the custodial element of the sentence. For that reason, the amendment is unacceptable to the Government.
Having said that, I appreciate the fact that, as the noble and learned Lord said, this is a probing amendment. To answer the question shortly, it is our position that the sentencing judge would take into account the question of protection of the public at both stages, so that in deciding the appropriate custodial element of the sentence, the judge would take into account the same factors as he or she would take into account, apart from this provision. As the noble and learned Lord properly observed, the protection of the public is a proper consideration in determining the length of a custodial sentence.
However, this provision goes further. Having decided on the appropriate length of the custodial sentence which the court would otherwise have imposed but for this provision, the court also has to consider whether it would be appropriate to have a further period, the extended period, during which the accused or convicted person would be on licence. That period is not to be seen as an additional prison sentence, but as a period on licence when the accused will, we hope, have the support of the appropriate authorities and be under supervision. Obviously, if he or she breached the terms of the licence, he or she would be returned to prison.
I hope that that assists the noble and learned Lord in understanding the thinking behind the provision. In short, the Government do not intend that any different criteria would apply in determining the appropriate length of custodial sentence.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord. My concern was to clarify the position not only for my purposes, but also for those who will have to deploy the powers in the fullness of time. One possible consequence of the provision if it is not correctly construed and applied is that because of the availability of the extension period, judges might be tempted to restrict the custodial term and, as I understand it—I am sure that I do understand what the noble and learned Lord has said—the policy is not that there should be any curtailment of the custodial term. Having received that assurance, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 70 shall stand part of the Bill?
Lord Mackay of Drumadoon: Again, in a probing nature and briefly, I should like to raise one or two matters which I hope the noble and learned Lord can clarify. As I have already indicated, under new
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subsection (2)(b) of the proposed new Section 210A of the 1995 Act, it will be necessary for the court to reach a view as to the duration of the extension period to the effect that it should be of such length as the court considers necessary for the protection of the public from serious harm following the release of the offender. In other words, we are going one stage further. In taking into account the overall custodial term, one is deciding upon a fixed period which is, to quote the provisions again,
of such length as the court considers necessary.
I seek to probe how the Government intend that the courts should assess the duration of the extension period within the parameters that are set down in what will be new subsection (3) which states that in a sexual offence case, the period could be 10 years while in a case involving a violent offence, it is limited to five years. It might be of assistance if the noble and learned Lord could explain why there is that difference. Although sexual offences can be serious and could arguably require an extension period of 10 years, one can imagine many violent offences, which would not qualify as sexual offences, being just as serious and which members of the public would perceive as being just as serious.
My first question is: how do the Government envisage that the courts will set about the statutory duty that is laid upon them to determine what length of sentence is necessary? Secondly, if the court, having been satisfied that it was necessary to protect the public from serious harm, was of the view that an extension period was necessary but believed that the limit of five or 10 years imposed by statute was too low, is it the Government's view that that would necessarily lead the court to impose a discretionary life sentence? I repeat that if by that stage the court is satisfied that custody is appropriate; that there is a need to protect the public; and the length of five or 10 years as set down by Parliament is inadequate, does that mean that a discretionary life sentence becomes virtually automatic?
I do not raise these practical matters now in any attempt to frustrate the provisions—although I have not read much about this, I believe that it might be a useful addition to the sentencing armoury—but because they are important issues which I hope can be clarified now.
The Earl of Mar and Kellie: I have two points about the extension period. First, would I be right in presuming that the Government expect that the maximum period laid down will be the normal amount of the extension period that will be imposed, or will there be a published scale of a ratio between custodial sentence and extended supervision? Secondly, if supervision is substantially extended, it will clearly have a considerable effect on local authority social work departments which will have to carry it out. I say that bearing in mind that we have already established that there will be no additional money for local authorities to carry out these new duties.
Lord Hardie: I should like to deal in turn with the points that have been raised. I reply first to the point raised by the noble and learned Lord, Lord Mackay of

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Drumadoon, about the factors governing how the court will assess whether there is a need to protect the public from serious harm following the release of the offender. The court will be expected to go through the same exercise and to rely on similar sources of information to those on which it relies now in deciding whether there is a risk to the public. As the noble and learned Lord will be aware, the court will consider the previous behaviour of the accused and whether there is a pattern—this is particularly true with regard to sexual offences—indicating that he or she poses a risk to the public. Other information would be available to the court, for example social background reports and perhaps psychiatric reports and the like. The court would look at the circumstances of the offence and all other information available to it. The judge would have to make an assessment as to whether there was a risk of serious harm to the public.
Lord Mackay of Drumadoon: I have no difficulty with that. My difficulty lies in identifying the criteria against which the court will determine the length of time during which it is necessary to protect the public. I have no difficulty about identifying an accused man who is perceived to be a danger to the public. The factors that the noble and learned Lord have mentioned are fully understood. I have difficulty in trying to work out the length of time during which this condition (if it may be so described) exists, because that seems to me to be a necessary ingredient of the exercise of the powers bestowed upon the court by the provision.
Lord Hardie: I am grateful to the noble and learned Lord for his intervention. That picks up the question raised earlier by the noble Earl, Lord Mar and Kellie, as to whether the period of five years or 10 years, as the case may be, would automatically be the period that was fixed. I think not. I hope that the court will look at the circumstances of the individual to fix the terms that the court considers appropriate. It is difficult for me to give any clear guidelines to judges in the sense that it will automatically be eight years, five years or three years in particular cases. The courts would be entitled to call for reports from social workers if they were not already available. They would also be entitled to call for reports from psychiatrists or, more importantly, psychologists to assess the level of risk.
The whole question of risk assessment is a very novel concept in the criminal law. It is a concept with which the noble and learned Lord is familiar in civil law. I would not have thought that it was difficult for courts to develop practices and to call upon expertise to identify the level of risk in a particular case. The court would have to make a judgment on the basis of that as to the appropriate period to impose as an extension to a licence period.
The noble and learned Lord raises the question whether if a court feels that 10 years, or five years in the case of a violent offender, is too short it will automatically impose a discretionary life sentence. That would be an option open to the court. The court would have to consider all of the circumstances and decide whether it was appropriate to impose a discretionary life sentence or even a much longer fixed term followed by the 10-year maximum
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period of extension in the context of this provision. These are matters within the discretion of the court. I believe that there are two options: one is the discretionary life sentence and the other is a longer fixed period plus the maximum extension. It is hoped that either of those will have the effect of protecting the public for a sufficiently long period. If an offence is committed during the extension period the offender will be recalled. I do not know whether that meets all of the concerns that have been raised.
As to the difference between the five years and the 10 years, it is acknowledged that sex offenders are particularly prone to re-offend. I say that having recently attended a training weekend at Ballathie, with which the noble and learned Lord will be familiar. There we were addressed by a distinguished expert who indicated that this was a feature of sex offenders. However trivial the sex offence, it was likely that there would be a re-offence. The thinking of the Government in relation to sex offenders is that the longer period of 10 years is appropriate. If, in the context of the five-year period for violent offenders, it is considered by the Secretary of State that on the basis of experience that period is not long enough, the clause gives the Secretary of State power to make an order amending the five-year maximum extension period in the case of violent offenders, thus bringing them up to 10 years as well. In the case of an extremely violent offender one anticipates that the court will impose a sufficiently long fixed period or a discretionary life sentence, thereby affording protection of the public.
Lord Mackay of Drumadoon: I am sure that the answer given by the noble and learned Lord will be of assistance to the courts, in particular his view that the Government anticipate that judges will seek guidance from reports and experts rather than seek to decide the period to be imposed on the basis of their own experience. I am more than satisfied with the response that I have received and I withdraw my opposition to the clause.
Clause 70 agreed to.
Clause 71 agreed to.
Lord Hoyle: My Lords, I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Northern Ireland: Integrated Education
7.37 p.m.
Lord Holme of Cheltenhamrose to ask Her Majesty's Government whether they will use all possible endeavours to promote integrated education in Northern Ireland as a contribution to better mutual understanding and improved community relations.
The noble Lord said: My Lords, I am glad that the House has found time for this short debate on the Question that I have tabled. In anticipation I thank those

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of your Lordships who have put down their names to speak in this debate. Since tabling the Question—I claim no connection, although if there was one I should welcome it—the Minister of State responsible for Education in Northern Ireland, Mr. Tony Worthington, made two very positive announcements on 11th February on the question of integrated education in the Province. First, he spoke about a revision of the viability level for integrated schools from 100 to 80, making it easier for schools who wish to apply for integrated status to qualify. It is worth noting that the previous Government moved the goal posts from 60 to 100. Therefore, although 80 represents progress, some of us would like to see the level moving down again to 60. The second announcement of the Minister of State was that a new working group would be set up. Sometimes I believe that New Labour's answer to the problem of unemployment is working groups. At any rate we have yet another working group which is to consider, first, the question of transformation from existing schools to integrated status; and, secondly, capital and recurrent funding needs. I am glad to hear this. I suspect that a good number of the issues are ultimately, as so often in government, matters of funding. The third question is how to make the move without damaging existing schools. I am sure that that is well worth while, and it slightly changes the complexion of the debate.
Having said that, there are some issues to be raised which perhaps the working group should take on board. This House has a particularly distinguished role on the question of integrated education. As long ago as 1831, Lord Stanley proposed a national school system for Ireland as a whole. His idea was that there should be schools which catered for both Roman Catholics and Protestants. Unhappily, the Churches were unable to agree and there were therefore two state sectors in Ireland. It is interesting to speculate how different history might have been had Lord Stanley been successful in prevailing on the Churches at that time to agree to integrated education.
In 1920 Lord Londonderry, who was the first Minister of Education in Northern Ireland, again attempted to establish integrated schools. He was defeated and sectarianism, or at least the wish to preserve religious integrity, triumphed.
Then in 1978 Lord Dunleath—much missed in the context of the 1978 Northern Ireland Education Bill, later Act, in which the noble Lord, Lord Hardy, from whom we shall hear later, played such a leading part in another place—established a mechanism for transformation to integrated status. Unhappily there was no takeup, or very low takeup, and Lagan College was a response by parents to that in 1981 as a new school. I have visited it myself, as have other noble Lords. It is a most impressive establishment and now has 970 pupils. It is not just mixed in terms of the composition of the pupils, but also in terms of the staff.
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Moving on from history to the current situation, it is important to note that the drive for integrated education is, as it should be—as it was with Lagan College—parent-led. It is a matter for parents. It should be noted that a recent Rowntree opinion poll showed that no less than 69 per cent. of parents in Northern Ireland preferred the concept of integrated education to that of a single religious basis. It might be said that that is just an opinion poll, but when pressed in that poll as to whether they really wanted it and were prepared to make personal sacrifices and commitment, still no less than 30 per cent. were prepared to put themselves out to enjoy for their children the benefits of integrated education.
So 30 per cent. really want that sort of education for their children, and yet only 2.5 per cent. of the children in Northern Ireland attend integrated schools. Eight thousand five hundred out of 350,000 actually achieve this. It is not one in three, but one in 40 where there is at least 40 per cent. of either religious persuasion in school and where staffing is also mixed.
Even if only one in 40 receives a fully integrated education, you may say yes, but there must be some blurring of the edges, because only another three more are taught with any pupils from the other religious persuasion present in their school. Effectively, for 90 per cent. of the pupils in Northern Ireland, there is still complete segregation on religious lines.
Integrated schools have generally been established—bravely and with difficulty—by parents. Thirty-seven have now been created. We ought to pay tribute to the enlightened role of philanthropist foundations—notably the Rowntree Trust and the Nuffield Foundation—which have given so generously to help get integrated education off the ground more effectively in Northern Ireland.
Government funding, if it comes at all, comes later, and it is often uncomfortable and difficult for parents to get integrated education going. There is a myth that it happens only in leafy suburbs, that it is an exclusively middle-class interest. That could not be further from the truth. There are 13 schools in Northern Ireland which conduct all their teaching in Portakabins; 11 of those are integrated schools. These are not privileged havens; they are schools, against some odds, establishing a non-sectarian pattern of education.
Last year there were 1,000 pupils who were unable to get the place they wanted. If the opinion polls are any indication, there are tens of thousands more who would go to an integrated school if there was one accessible and available.
I wonder if it is necessary to make the case for integrated education? I cannot put it better than the Prime Minister who, when he visited Hazelwood integrated college just before Christmas, said that integrated education can foster the flame of hope while crucially providing an excellent education. You do not

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have to be a seer or a social scientist to realise that segregation reinforces stereotypes and that integration promotes mutual understanding.
That is why integrated education should have a higher priority with the Government than the one they have assigned to it, although I do welcome the progress made in recent weeks and months. A recent survey of students at Queen's showed that only 12 per cent. of them had personal friends from what I will call the other side—a horrifying statistic as regards the leading university of the Province. Only 12 per cent. of highly-educated young people said that they had friends from the other religious persuasion.
However, an equivalent survey of graduates from Lagan College—now established since 1981 as an integrated school—showed among pupils there of much the same age that no less than 44 per cent. of them had close friends from the other side of the religious divide. I find it small wonder that the United Nations Convention on the Rights of the Child in 1995 urged the British Government to make more provision for integrated education.
So what should we do? The Government's main emphasis has been on transformation, i.e. changing existing schools. It is cheaper, it is less disruptive—I can see the arguments for transformation—but does it work? It needs massive awareness and culture change. The relatively few transformations have all so far been from the controlled, that is the Protestant, sector. Attitudes are changing in the Catholic hierarchy. They need to change because not one single Roman Catholic school has so far sought to transform its status.
I would ask the Minister two questions. First, will the Government take steps to ensure that parents in general, but particularly in Catholic schools, are aware of their right to opt for transformation? Secondly, will the Government encourage the Catholic Council for Maintained Schools to transfer some of their schools into integrated schools? That would be a very positive contribution by the Catholic hierarchy to the settlement that we all so desperately want in Northern Ireland. If it worked it would be a new start to promote greater flexibility on this subject, rather than helping to entrench sectarian stereotypes. At the end of the day, transformation can only go so far. What we need are new integrated schools.
Just before Christmas the Minister rejected three new schools seeking integrated status because they did not come up to the numbers requirement—Oakwood Primary School, Ulidia and Strangford Colleges. Parents from those schools will be in London on Thursday to present a petition to the Prime Minister. I hope they get a positive answer. Strangford has 68 pupils currently being taught in mobile classrooms and is funded by the Peace and Reconciliation Fund. It should be brought within the integrated sector. Will the Government approve these schools?
The peace process, if it is to work, has to be much more than a perpetual bargain between two sides. We have to break down the barriers rather than entrenching them. If we are to have the civil society of which
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members have talked, it will need the sort of pluralism that integrated education offers and the chance for people to relate to each other as citizens.
I would pay tribute to all who are working so hard for integrated education. Using the Prime Minister's words, the Government should do more to keep the flame of hope alive and let it burn more brightly.
7.50 p.m.
Lord Hardy of Wath: My Lords, I congratulate the noble Lord on the initiative that he has taken to give the House the opportunity to consider this important matter. I was grateful to him also for the kind reference he made to the Bill which I took through the other place 20 years' ago: 20 years in the context of Irish history is a short time indeed. I shall explain why I pursued that Bill. It was at the request of a small group of people in Ireland called All Children Together. I thought that I had to accept its request because of the history of my constituency—and history matters enormously in Northern Ireland.
The most distinguished person ever to live in my constituency was Thomas Wentworth, Earl of Strafford. The House will not need me to give it a history lesson. Members of the House can see some evidence of his existence in the little plaque on the floor in Westminster Hall. He presented a threat to Parliament by his activities in Ireland. Those activities in Ireland involved also plantation. My constituent, if he had still been alive, might have been responsible for taking there some of the Scottish Calvinists—a tough people, hard in their opinions, and rigid in their approaches, personified today, I think, by the Reverend Dr. Ian Paisley whose ancestors may have been taken to Northern Ireland by the person who formerly lived in my constituency.
There was then the Marquess of Rockingham who was Prime Minister in the 18th century. He was a very decent man. He was succeeded by one of the Earl Fitzwilliams. They were progressive Whigs. Some noble Lords may feel that they represent the same tradition, but I think that that rests on this side of the House today. Earl Fitzwilliam was appointed briefly as the Minister responsible for Ireland. He was a relatively young man. He saw the consequences of the oppressive legislation which prevented the Catholic community from enjoying opportunity. The most appalling persecutions were enshrined in legislation at that time, and obviously the effect of that approach is still felt today.
That is why I said at the beginning of my remarks that 20 years is but a flea bite. We have also to understand the consequences of the economic arrangements which deprived the substantial Catholic community in the northern part of Ireland of any opportunity to equal advantages which the Protestant faith provided. It gave better opportunity for a job; a better opportunity for a decent house; and a better opportunity for a Protestant to be elected to a local authority with fewer votes than a Catholic required, as a result of the ward arrangements and such matters. Against that enormous embittering arrangement, there is no wonder that there is the sectarian divide.

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It is right, as the noble Lord said, that we should have a working party to look at the matter, because we have to try to structure things in such a way that history will at least demonstrate that this generation is concerned to remedy the evils and faults of the past one. I can well see the advantage—as I said I pursued the Bill—in having integrated education, but that is not, and cannot be, at least within a measurable time, the answer. I looked at my own constituency again at that time.
I live almost across the road from the local comprehensive school in Wath-upon-Dearne. It is a good comprehensive school for 11 to 18 year-olds; 200 yards to the south of that school is the Pope Pius secondary school. That is a good Catholic school. There I saw develop in the 1960s and 1970s a most cordial relationship between those two schools. One was for 11 to 16 year-olds, and the other for 11 to 18 year-olds. The advantages and facilities at one school were frequently enjoyed by the other. Often, youngsters leaving the Catholic school at 16 came down the road to the sixth form. We had a splendid relationship, which exists today.
One of the reasons for that cordial relationship was that the Catholic school had an extremely good headmaster called Martin Walsh, who is now retired but still alive. I knew him well when I was a schoolmaster in the area. He and the headmaster of the comprehensive school, the late Dr. Safell, ensured that we had a relationship of cordiality and co-operation. While it may not be possible to ensure that integrated schools are developed to cover the whole of Northern Ireland, we should at least ensure that the Catholic and the Protestant Church authorities encourage the schools to be free to bring people together, even if it is not in an integrated situation. There are so many ways in which schools can co-operate, as the experience in Wath-upon-Dearne demonstrated.
I hope that in the next few months or couple of years Mr. Worthington, my noble friend Lord Dubs and their colleagues, serving in the Northern Ireland Office, will seek to promote that degree of cordiality and co-operation which would be of profound advantage. I do not believe—my experience in 1978 demonstrates it—that we can look for dramatic change overnight. The corrosive effect of Ulster history would militate against that. That is not an excuse for inaction. It is therefore reasonable to progress.
I understand one difficulty which the noble Lord may not have considered with regard to the consideration given by the department towards integrated schools. Children have to be taught. There is sometimes a temptation to use children for educational experimentation. The department has to be satisfied that if an integrated school is to be developed and approved, then that school has to ensure that the education provided for the pupils will be up to the standards of other schools. If children are to be taught in small numbers, in unsatisfactory accommodation, then the range of subjects available to them may not be adequate, and the quality of education that they are to receive may properly be questioned.
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Integrated schools for the sake of integration, which puts at risk the quality of education that children receive, may not be the answer. It may he part of the answer. Until we achieve the cordiality and co-operation which is achieved in many parts of England, we shall be throwing away part of the opportunity and obligation. Nevertheless, I am extremely grateful to the noble Lord. He has done the House a service by providing this opportunity this evening. I hope that the wisdom he has offered the House will receive considerable attention, not just in the department but in the counties of the north of Ireland.
7.57 p.m.
Baroness Denton of Wakefield: My Lords, I must start with an apology. Regrettably, I will have to leave before the end of the debate as I am hosting a dinner downstairs. I fear that my noble friend Lord Brabazon is having difficulty dissembling as a woman in PR. I shall read with care the contributions of the noble Lord, Lord Alderdice, and the Minister.
I, too, thank the noble Lord, Lord Holme of Cheltenham, for bringing forward this subject for debate. The recent progress which pleases him must be due in part to his tenacity, from which I suffered for three and a half years. I suffered it willingly because I was supported. It is important that we talk about this matter today, because, with the daily crises, we must not forget the long-term future of Northern Ireland.
I took part for three years in discussions on the teachers' pay review in England. I remember vividly sitting in Nottingham and being told by 15 teachers that all the best people had left teaching. The temptation to say, "I can see that", was enormous. Then I arrived in Northern Ireland where teaching was still a profession. The parents respected teachers. That makes an enormous difference to the quality of education that pupils can expect.
I fear that in Northern Ireland the down side is that not going to university is regarded as failure. That is an issue which integrated education may well help. There is still a belief that success is to become a lawyer or a civil servant and not an entrepreneur, but if anything is needed in Northern Ireland it is more entrepreneurs to protect the economy. Therefore, I support the way in which people work together.
Integrated education, both philosophically and practically, is ideal. But it cannot be available in a vacuum. Money has to come from somewhere. Parents are involved and the economics stand-up. We know that and I hear that progress is being made. Nor do I believe that one should throw the baby out with the bath water. There are some good single community schools in Northern Ireland, in both communities. I was fortunate. For two consecutive years I took a daughter to work from each community school. The excellence in both schools was totally comparable. We moved forward well. I am pleased to reassure the noble Lord, Lord Hardy, that good schools share activities—sports, business and sixth-form meetings. Young Enterprise works across the board with great success and with a spirit which flourishes. We can build on that.

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However, some schools in separate communities have academic excellence. However, they are closed shops and make the masonic movement look like "The Archers" village cricket team! It might be interesting to examine academic research to see where the appointments go from those schools. It is an issue which integrated education needs to tackle.
Another benefit is the integration of girls. That is not always the case in Northern Ireland. But integration needs money, as does all education. More money is required at the chalk face, on buildings, and less on administration. Northern Ireland has 1.5 million people, but so do many local education areas in England with one unitary body. I am sure that other noble Lords are more expert on that.
I wish to make a special plea for the protection of rural education. I have an increasing anxiety about the depopulation of the countryside in Northern Ireland. Families must be able to stay and education must be available for them. I am glad that the Minister of Agriculture is in his place. I wonder whether looking after future generations already based there—I refer to the hill farmers—is slipping in importance against exotic European funded schemes which after four years will create a job per annum. An integrated education would be ideal in keeping families who want to stay there.
Never has it been more important to discuss education. When the recession arrives which I fear will come Northern Ireland will suffer more quickly and more severely than the rest of the UK. It will not be helped by its land neighbour's entry into the common currency. Northern Ireland has built on the quality of its people; that is the only variable which an economy has. If the people are educated, they can take on the world. I have been privileged to travel and watch them do that. It is important that the investment and strategy for the future is not pushed off course by political day to day events, however painful. I am grateful to the noble Lord for bringing this matter to the attention of your Lordships.
8.4 p.m.
Lord Alderdice: My Lords, I am grateful to my noble friend Lord Holme of Cheltenham for raising this important matter. I, too, pay tribute to the noble Lord, Lord Hardy of Wath, for the part he played 20 years ago in sponsoring the education Bill in another place. The Bill started its life in your Lordships' House and was sponsored by my sadly missed friend, Lord Dunleath. He played an extraordinary part in Northern Ireland politics. It is interesting to examine some of the comments he made because it is 20 years this month since the Bill had its Third Reading in your Lordships' House. It was February, 1978.
Like my noble friend, Lord Dunleath referred to opinion polls. They showed even at that time that approximately 70 per cent. of parents wanted to send their children to schools which were not segregated. That was one of the reasons which stimulated him to bring the Bill forward. Twenty years later, only 3 or
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4 per cent. of children are educated together and still some 70 per cent. of parents want their children to he educated in that context.
That is not because parents have not made their views clear. That is why I was greatly disturbed when sitting in your Lordships' Gallery in another place in January to hear the Minister, Mr. Worthington, say that if parents want such a thing they should not vaguely say so but should engage themselves in a campaign. Some of those parents have been involved in a campaign, committing themselves to great personal sacrifice, for more than a quarter of a century. They have taken enormous personal and financial risks in doing so. Indeed, some have had a very rough time.
The situation in Northern Ireland is different from that which exists here. For example, when we debated the parades legislation I heard some people say, "We have processions on this side of the water". They are nothing like those in Northern Ireland. I heard the noble Lord talking about a Protestant and a Catholic school not far from each other and such developments are welcome. But in Northern Ireland, 90 per cent. of more people live in areas which are 90 per cent. or more Protestant or Catholic. It is increasingly difficult for young people growing up together to be able to build relationships with Catholic children if they are Protestants or with Protestant children if they are Catholics, even if they want to.
We find that in many aspects of life in Northern Ireland—in housing, education, employment practices, culture, sport and the arts. It is because our community has developed almost under a form of apartheid, and that is seen no more clearly than in the context of education. Let us be clear that vested interests keep it that way. The party now in Government should have no difficulty in recognising the problems which vested interests can cause when trying to maintain a status quo which people wish to change. When one of my predecessors, as leader of the Alliance Party, John Cushnahan, decided to send his children to an integrated school he found that the Catholic Church was not prepared to allow his children to have all the rights and privileges of the Church. That is an example of the opposition which came from vested interests.
Let us be clear that when real attempts are made to change the situation people will run up against all kinds of problems. When Lord Londonderry, as the Minister for Education, tried to make changes, he found himself running up against such problems. He was not the only Minister for Education to find himself doing so. When the former Minister for Education in Northern Ireland, Sir Brian Mawhinney, tried to make changes, he ran into problems with vested interests not only outside his department, but inside, too. I and my predecessors have frequently found that great pressure has had to be exerted to ensure that integrated schools have any possibility of surviving because there are vested interests which want to maintain the situation.
It is deeply frustrating when people speak of wanting things to be better because we know in our hearts that that is not always so. We are familiar hearing on the airwaves people who say that they want peace and that

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they are greatly committed to that. Yet we know that some of those people, by the actions of their colleagues, have a peace strategy that is used as a weapon, not a tool to produce reconciliation. Similarly, sometimes people say that integrated education is a priority. But when they do not see any action we beg the question as to whether it is more than just froth.
Many said on the question of employment that we must be sure to have important, robust and fair employment legislation because we are not prepared to say, "Ah well, things will grow to be better if only we have a benign view of the matter." I believe that the same is true of integrated education.
I am not for a moment suggesting that we should do what our American cousins have done in the field of education—bussing children backwards and forwards all over the place. We should not force people to accept a form of integration which they do not want. But the truth is that there are parents who do want integrated education—50, 60 and 70 per cent. or more. But how can they have the benefit of such education if it is not available and provided?
How does one go about setting up such a school? One must take all the risks. There are all the pressures coming from within one's own community because many people do not want to see such a thing happening. That is because there are vested interests who maintain their power within the community by holding onto their children at the earliest stages and inculcating in them a view that it is better for them to stay separate. What happens if you are a parent in a mixed marriage, and there is now a very high percentage of those? Where do you send your children? It is not easy to find a place where they can be educated together with their brothers and sisters in another part of the community.
The noble Lord, Lord Hardy, said that 20 years is but a flea bite in the history of Northern Ireland. It may be so. Looking around your Lordships' House, it may even be a bit of a flea bite in your Lordships' House for some of its incumbents. But it is almost half my lifetime and it is too long to see no real progress being made on this matter. The requirements and desires of parents are not really receiving the necessary recognition.
Of course it is the case that in schools more largely composed of one community than another, advances are being made. I was delighted this past Sunday, in attending the family service at Campbell College in East Belfast, which is largely although not exclusively a Protestant school, to see that the president or headmaster of St. Malachy's College—one of the leading Catholic educationists in Northern Ireland—was conducting the service for the first time. That is good. It is progress. But it is not enough.
I see significant amounts of money coming from the European Union for peace and reconciliation. I have to ask the Minister why it is that that money more easily finds its way into the support of community enterprises which look only to one community. I find it frustrating that it is used more for reconciliation within one half of the community than between the two halves of our divided community. Why is it that there seems so little appetite in
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the Department of Education to use that European funding for one of the best means of bringing peace and reconciliation?
I want to return to what Lord Dunleath said in February 1978, 20 years ago, in your Lordships' House. He said that in,
aspiring towards our goal of reconciliation and an end to sectarianism in Northern Ireland, we are going to make it; we are going to get there; we shall do it. We are determined to do it. Let there be no doubt about that whatsoever. It may not happen immediately, perhaps not next year or the year after, perhaps not in my lifetime.
and how prescient that was,
but we are going to make it because we are determined to do it.—[Official Report, 16/2/78; col. 1527.]
I came to your Lordships' House directly from the talks in Belfast. There is a pressure and commitment by the two governments and all parties within those talks to see a political settlement, not within years or even within months but within weeks. There is a determination to do that. But our society will still be deeply divided. Unless the matrix is provided in integrated education and co-operation across the educational field, then that society will not become integrated and that political settlement will have within it the seeds of its own destruction.
Lord Londonderry saw integrated education as the way to ensure that the division in Northern Ireland would be healed. The failure to espouse his principles in the 1920s led to the problems of the 1960s and 1970s. Let us take the warning and not fall again.
8.14 p.m.
Viscount Bridgeman: My Lords, I am grateful to your Lordships for permitting me to speak in the gap and I shall be brief. I speak as a Roman Catholic in a personal capacity but also with relatives in Northern Ireland.
There is no doubt that the attitude of the Roman Catholic Church at the onset of the integrated schools arrangements was less than enthusiastic. The noble Lord, Lord Alderdice, gave some examples which are regrettably true. There was also a very real concern that funds would be diverted to middle-class neighbourhoods from the very needy and deprived schools.
As a result the integrated scheme got off to a very discouraging start. But—and this is the point I wish to make—I have it on very good authority that there is now much greater understanding and appreciation of the integrated schools ideal on the part of the Roman Catholic Church and with it respect for parental authority.
I hope that the Minister will be encouraged by that and also by the Church's strong support for the Education for Mutual Understanding Programme—the other EMU. That should give the Minister great encouragement in his dialogue with all interested parties.
8.15 p.m.
Baroness Seccombe: My Lords, I begin by saying what a joy it is to see my noble friend Lady Denton back speaking from our Benches so that we are able to share in her wisdom and the wide, hands-on experience she gained in Northern Ireland.

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It is not the first time that this subject has been debated in your Lordships' House and I am quite certain that it will not be the last. But it is a very important subject and I am grateful to the noble Lord, Lord Holme, for giving us this opportunity.
The debate takes place at a time of controversial change for Northern Ireland education, involving the funding and organisation of schools. We shall be debating soon a draft education order which makes sweeping changes.
I am sure that all noble Lords agree that the old separation of Northern Ireland children at school as well as at home and everywhere else has had a very damaging effect on relationships and has made its own contribution to the troubles of the Province. However, I gather that in recent years a great deal has been done to break down that segregation in different ways. Integrated schools are part of that breaking down of barriers but only part. We must not forget that, for example, the scouts, guides and many other groups have played a part too, both formally and informally, and we welcome all those efforts.
The Conservative government supported integrated schools where they were viable and the numbers have increased. But it must be a matter of parental choice, as the noble Lord, Lord Holme, explained. It is government's responsibility to make available provision and to encourage the trend, as the noble Lord, Lord Alderdice, so vividly told us. But it would be wrong to suppose that only the schools officially listed as integrated have pupils from the different traditions. The majority of schools in the Province are open to all and many are non-denominational. In general terms I am told that the Catholic schools are the only block which are officially organised and designated as one group. But a Catholic school cited in a recent debate in Grand Committee in another place had 45 per cent. Protestant pupils.
That makes me cautious about ideas for giving financial advantages to schools officially designated as integrated. The Motion asks the Government to use all possible endeavours to promote integrated schools but that should not include financial discrimination against existing schools
It would be helpful to know from the Minister how many schools at present fulfil the criteria for integrated status, although not officially recognised as such. I understand that a school can now be recognised as integrated if it has 10 per cent. of pupils not from the dominant religion. On that basis a large number of schools could apparently pass the test, but I wonder just how many. In any case, there will continue to be many schools not officially designated as integrated. It is important that their pupils also build up an understanding of children from other backgrounds.
Integration of schools on an official basis should not therefore be allowed to build up into a new dogma of its own. There seems to be already much educational dogma about in the Northern Ireland Office. I gather the Government want to do away with the direct grant schools and put them all under the Education and
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Library Boards. Given that DENI will still have to approve plans, funding and so on, I doubt whether that will save money on bureaucracy.
The most dogmatic aspect is the attack on the preparatory schools. Labour seems to want to drive pupils into the state sector regardless of the cost, reducing parental choice and cutting into the grammar school system. The Minister of Education originally proposed cutting their grant in half now, and eliminating it altogether later. He has been persuaded by the row that that caused to cut the grant by only a quarter so far but he has, however, refused to say whether Labour still intends to cut it further soon and eliminate the grant entirely later. That attitude is calculated to weaken preparatory schools both financially and through uncertainty. It will force pupils out of established schools and into the wholly-funded sector without saving taxpayers' money.
In the face of such a dogmatic approach to education management by Labour in Northern Ireland it is good to be able to endorse integration, but we need to be sure that the quality of the existing schools does not suffer in the process. Northern Ireland has a high reputation for educational achievement. That reputation has been difficult to gain and to sustain. It is a particularly precious asset, given the bad reputation which the Province has for other reasons. The high quality of Northern Ireland education has assisted the drive for inward investment and jobs. When unemployment is rising—as it is in the Province at present—it is essential not to damage the quality of education or even (most importantly) to be thought to be doing so.
8.22 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, I pay particular tribute to the noble Baroness, Lady Demon. It is a great pleasure to see her here this evening and in such good form. She portrayed clearly her knowledge of Northern Ireland, and her commitment to it and to its people came out loud and strong. I hope that we shall see her here frequently in the future. The Government acknowledge that integrated schools have an important contribution to make towards improved community relations in Northern Ireland and we are committed to support and facilitate the further development of the integrated sector.
I should like to set out briefly Her Majesty's Government's approach. There are three basic principles which underpin and determine policy in the development of new schools: parental choice, to which the noble Lord. Lord Holme, referred, viability (or educational effectiveness) and affordability. Of prime importance is parental choice. In Northern Ireland, as elsewhere in the United Kingdom, the law requires every school to be open to any pupil regardless of religious belief. The current, largely segregated, school system in Northern Ireland is an expression of parental choice and the Government will not disregard parental wishes by seeking to impose integration. To attempt to do so would be counter-productive and could actually do more harm than good to community relations in the Province. Equally, parents have a right to integrated

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schooling for their children if that is their wish and the Government are wholly committed to meeting demand where this is clearly viable, and is affordable.
In addressing the question of the potential viability of new school proposals, there is a duty on the Government also to ensure that any associated expenditure will be both reasonable and affordable. Noble Lords are only too aware of the demands on the public purse. Northern Ireland cannot be exempt from the need to contain public expenditure within sensible limits. Integrated education policy must have proper regard to this. Parents' right to choose how their children should be educated cannot be unfettered and it behoves the Government to ensure that new schools are justified, are likely to be viable in the long term, and will not impact unreasonably on existing schools or public expenditure. To assist in this process the Government have set a number of criteria which new schools have to meet in order to qualify for grant aid. They are necessary to ensure that schools will be sufficiently robust from the outset to merit the substantial investment of public funds. At the same time, if change is to be achieved, some investment is necessary. The Government have committed significant resources to facilitate the development of the integrated sector. Perhaps I may return to this point later.
I should like to pay tribute to the dedication and commitment of the parents, teachers, school governors and others in Northern Ireland who have been instrumental in promoting, establishing and maintaining integrated schools. Without their vision and enterprise the significant progress which has been made would not have been possible.
Integrated schools, whether new or transformed, have a real contribution to make to developing better understanding between the two main traditions in Northern Ireland. However, this does not mean that the Government regard non-integrated schools as somehow sectarian. Many schools have been very active in developing cross-community initiatives and all schools must, as part of the statutory curriculum, teach the themes of education for mutual understanding and cultural heritage. Their influence extends to all parts of the community and the entire school system has an important role in helping to improve and cement community relations.
Perhaps I could now focus on the real progress which has been made by the integrated sector in recent years. In 1989 there were just 10 schools—eight primary and two secondary—which were regarded as integrated. These had a total enrolment of 2,500 pupils. Today there are 33 grant-aided integrated schools, 11 of which are secondary, spread throughout the Province, with a combined enrolment of over 8,000 pupils. I note the point made by the noble Lord, Lord Holme, that these are not simply in middle class areas but cover all kinds of areas across Northern Ireland.>
Perhaps I could highlight some key features of that expansion. It has been entirely driven by parental demand. Pupil numbers have increased threefold. Only 2 per cent. of total pupil numbers, however, attend integrated schools. Growth has been mainly through the
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establishment of completely new schools: nine primary and eight secondary. Only six of the 33 schools, five primary and one secondary, have been established through the transformation route.
This overall expansion, mainly via the new school route, has not been without cost. Over £32 million has been invested in integrated school capital development since 1990/91, and a further £43 million is committed over the next three years. This represents some 20 per cent. of the total capital resources available to the education service, for a sector which has 2 per cent. of the school population. By any standards this is a substantial level of capital expenditure and is clear evidence of the Government's support for integrated schools. However, it has had a knock-on effect within the capital programme for the education service and has limited the Government's ability to address the capital needs of other schools. There are over 100 high priority building schemes in the school capital planning lists with a total cost of over £350 million.
In view of the rising cost of integrated school development, the Government have sought to shift the emphasis away from the creation of expensive new schools—in circumstances where there is already surplus capacity in the school estate—to the transformation of existing schools to integrated status. This route to integration has particular advantages. It is the fastest and most cost-effective means of meeting demand. It avoids creating more surplus places in the schools estate. Moreover, because it is less costly and potentially damaging to existing schools, it attracts less criticism from other sectors.
Last year, the Department of Education issued a policy document entitled Integrated Education—A Framework for Transformation.The framework has two main objectives: to raise awareness of, and encourage interest in, integrated status among parents and schools and how this could be achieved; and to stimulate dialogue and co-operation between Education and Library Boards, the Northern Ireland Council for Integrated Education and other school interests. As a follow up to the response generated by the framework document, the department will soon issue detailed guidelines which are designed specifically to guide and assist schools actively seeking integrated status. In that connection, resources of £300,000 per year have been set aside to assist schools with some start-up costs associated with transformation.
There is increasing evidence that this shift in emphasis is working. In the past year alone nine schools applied to change to integrated status—seven of these have been conditionally approved and, if these are confirmed in September 1998, that will increase the availability of integrated school places by almost 30 per cent. That represents by far the largest increase in the integrated sector in a single year. For all these reasons transformation is now the Government's preferred route for the future development of the integrated sector.
I am sure noble Lords will agree that much is being done to respond to parental demand for integrated education. Good progress has been made but we are not

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complacent. Additional measures announced recently serve to reinforce the Government's commitment to the development of the sector.
First, following a review by my honourable friend Tony Worthington, Minister for Education, the viability criteria for new secondary schools have been reduced from an initial intake of 100 pupils to 80 pupils. That point was referred to by the noble Lord, Lord Holme. That means that the minimum, long-term enrolment expected of secondary schools has also been reduced from 500 to 400 pupils.
In addition, the Government have announced their intention to set up a working party which will examine ways to encourage more schools to transform to integrated status; the present capital and recurrent funding arrangements for new integrated schools; and ways to encourage further integrated school development without damaging existing integrated schools. Finally, and significantly, the Department of Education has commissioned a major research project, which will be partly funded by the European Union peace and reconciliation programme, to assess the impact of integrated schooling—and other school based initiatives—on attitudes, mutual understanding and improved community relations.
A number of detailed comments were made to which, if time allows, I shall endeavour to reply. I am not sure that I agree with the 90 per cent. statistic given by the noble Lord, Lord Holme. As mentioned by the noble Baroness, Lady Seccombe, there are many more schools which are not integrated but which have a mixed enrolment and play a significant part in improving community relations.
The noble Lord, Lord Holme, has a point when he talks about 30 per cent. of parents wanting integrated education. Certainly, if that is the case, the Government will respond to parental demand where such schools can be shown to be viable. He asked whether parents will be made aware of the right to transfer to integrated schools. The answer is yes. All schools have been made aware of the opportunities and assistance available for transformation, which have been publicised in the media. As regards Catholic maintained schools, it is for the board of governors and parents of those schools to decide on any such transformation. The noble Lord also mentioned Oakwood and some other independent schools. Those schools have not been approved to date as they have not met the required viability criteria and other requirements for grant aid. If they decide to seek approval for next year their proposals will be considered on their merits.
I agree with my noble friend Lord Hardy that existing schools are involved in cross-community activities, including education for mutual understanding and cultural heritage in the curriculum. I pay tribute to the noble Lord's long-standing efforts to increase their effectiveness and the size of integrated education in Northern Ireland.
The noble Baroness, Lady Denton, referred to the dangers of depopulation in rural areas and the part that education would play there. It is a very important point,
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and one which influences government policy across a whole range of departments in Northern Ireland. She also asked about the possibility of one education authority for administration in Northern Ireland. The Government have decided not to pursue the rationalisation of the five education and library boards at this stage. Rather, the boards are being encouraged to operate on a co-operative basis to secure efficiencies in administrative costs.
The noble Lord, Lord Alderdice, talked about vested interests. Indeed, yes. In my remarks I also referred to the opportunities that there are for parents if they are finding difficulties and the Government's wish to encourage them. I do not believe that peace and reconciliation money has been applied to only one community. Indeed, almost £1 million was allocated to Malone integrated college in 1997 from the EU peace programme funds. That represented about 10 per cent. of the funds available to education from that particular source.
The Government cannot impose integrated education. The Government see their duty as to encourage and facilitate but not to impose. Therefore there has to be a positive feeling on the part of parents that that is their particular wish.
The noble Baroness, Lady Seccombe, referred to other areas of education. I have neither the time to answer, nor do I feel it appropriate in the context of this particular debate. However, the noble Baroness asked how many schools qualify for integrated status. That information is not available because some schools cannot be categorised in that way. Schools which wish to transform can be approved if at least 10 per cent. of the first-year intake is from the minority religion, which was a point that she made.
Much has been done, and will continue to be done, by government to encourage and assist the development of integrated education. I hope I have demonstrated the Government's commitment and the fact that we are doing a great deal. I believe that more integrated education will be the characteristic of Northern Ireland over the next few years.

Crime and Disorder Bill [H.L.]
8.36 p.m.
House again in Committee.
Clause 48 [Drug treatment and testing orders]:
Lord Henley Lord Henley moved Amendment No. 219:
Page 37, line 9, at end insert—
("() The Court shall not make a drug treatment and testing order until it has obtained and considered a pre-sentence report.").
The noble Lord said: We broadly support the provisions set out by the Government in Clauses 48 to 51 dealing with drug treatment and testing orders. We wish them well with their aims in this series of clauses. As the noble Lord will see, I have tabled only one amendment, Amendment No. 219, which is perfectly self-explanatory. It suggests that the court should not make a drug treatment and testing order until it has

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obtained and considered a pre-sentence report. No doubt I shall be told that that is exactly what will happen and that it is somehow dealt with in these clauses and I have missed it.
However, there is one other point that I wish to deal with. I hope that I shall not take up too much of the Committee's time, but it is a matter to which I wish to return. It was brought to my attention by the Standing Conference on Drug Abuse (SCODA), which raised concerns that these clauses apply to persons aged 16 or over and are not confined merely to those aged 18 or over. A number of concerns were expressed and I should like briefly to run through them. I hope that the noble and learned Lord the Solicitor-General will possibly respond to some of them and, if not, perhaps he will deal with them in writing. They are matters to which I and possibly some others will wish to return at Report stage.
Young people aged under 18 years—and for these purposes those aged 16 and 17—are "children" under the Children Act 1989. To provide services for them with adults under the testing and treatment order would possibly go against the spirit of the Children Act. The Social Services Inspectorate report, Substance Misuse and Young People, published by the Department of Health in 1997 states:
Treatment and welfare interventions with children and young people under 18 arc, in the main, governed by a statutory framework which does not apply to adults,
and,
Any approach needs to take into account the age and relative understanding of the child and young person.
The second point I wish to make is that it has been argued—and I should be grateful for comments from the noble and learned Lord—that to include under-18 year-olds, if a residential programme is proposed, would contravene the United Nations Convention on the Rights of the Child. Article 37(c) states that:
every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so.
The third point that we wish to make is that patterns of drug misuse in children and young people are very different from those of adults. In summary, their use of drugs appears to be less dependent, to include a wider range of substances and, where use is dependent, to be linked to behavioural problems. For those reasons, adult drug treatment models are not necessarily applicable. Evidence brought together by the National Health Service Health Advisory Service thematic review Children and Young People, Substance Misuse Services indicates that most young people for whom drug misuse is a significant problem have very complex needs. Again, if I may quote from that report, it states:
Vulnerable young people with problems resulting from drug or alcohol use or misuse almost invariably have other behavioural or emotional problems … and that these present a diverse range from truancy to child abuse, from criminality to homelessness.
These complex needs could possibly best be met under Section 17 of the Children Act 1989 which deals with those in need and Section 47, those at risk. Under 18 year-olds' drug use needs to be addressed within this context. Adult drug services are neither holistic nor linked to children's and families' services.
The Social Services Inspection Report noted that there were some consistent general trends and factors in children's drug use: namely, a significant increase in the use of illegal drugs, particularly in the last five years: a greater range of drugs being used than ever before: a drop in the age of initiation into drugs and alcohol: regional variation in patterns of drug use and trends within different groups within any community: and most drug use among young people is experimental and one-off.
There are, however, a number of young people whose drug use is dependent and harmful to them. This was noted in the Social Services Inspectorate Report. For example, it noted that:
All local authorities reported small but significant numbers of young people who were dependent or chaotic drug users.
The Social Services Inspectorate Report has, therefore, recommended that both for the majority of young people and for those at risk from serious harm, there is need for
Substance misuse services for young people … need to relate to the age and developmental stage of the child and [for there to he] a range of services at different levels of intervention.
The report was concerned that young people were dealt with separately from adults because the,
models and methods of drug and alcohol treatment … are largely based upon philosophies and practices developed for adult misusers.
The fourth point I wish to make is that to make the testing and treatment order fit with the young offender strategy would take some considerable reworking with regard to under 18 year-olds and would, for example, need to have built in the involvement of parents, particularly with regard to revocation, review and the making of the order.
The last point I wish to make is one where, again, I apologise to the noble and learned Lord for deviating slightly beyond the scope of the amendment which I put down, but it is something to which I should like to return. In the main, young offender strategy is positive and the provision of young offender teams should provide the right source for young offenders to access appropriate and holistic treatment, rather than them being covered by Clauses 48 to 51.
I hope that the noble and learned Lord will find that of use. If he would prefer to write to me in further detail on the amendment, I should be perfectly happy to accept that. I appreciate that I have raised the matter without giving him notice. It is something that I think is important and I would wish to come back to it at a later stage, on Report. I beg to move.
8.45 p.m.
Viscount Tenby: I wish to associate myself with Amendment No. 219 just moved by the noble Lord, Lord Henley. Although his remarks about young offenders' drug abuse may be slightly wide of the amendment, I wish to say how much I agree with some of the points that he made.
I am aware of the pressure on the probation service with the increasing number of requests for pre-sentence reports, but I am sure we all agree that they are a vital tool in evaluating sentencing options and building up a

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full picture of the defendant's background and patterns of offending behaviour, if there are any. It seems to me that a pre-sentence report would be a necessary preliminary to getting a drug treatment and testing order into existence. So I support the amendment.
Lord Falconer of Thoroton: Two separate points were raised by the noble Lord, Lord Henley. The first was the one specifically covered by his amendment which says: should one have a pre-sentence report before one makes a drug treatment and testing order? We accept entirely the principle that a court should obtain and consider a pre-sentence report before making a drug treatment and testing order and we believe that this will often happen in practice. A court will in any event be obliged, under Section 6 of the Criminal Justice Act 1991, to obtain and consider a pre-sentence report before making a drug treatment and testing order, unless it considers that the circumstances of the case make it unnecessary to do so.
So from Section 6 of the Criminal Justice Act 1991, there will be an obligation to obtain a pre-sentence report unless circumstances make it unnecessary to do so. Such unforeseen circumstances may arise in practice and there is little to be gained by specifying in statute that a pre-sentence report must be obtained. To do so would separate the drug treatment and testing order from the general context of community orders in the sentencing framework established by the Criminal Justice Act 1991.
Moreover, it is a statutory requirement that the offender consents to the making of the order. It would be unreasonable to expect the offender to consent without having been informed of the expectations of the treatment provider. That means that an assessment interview should have taken place. The pre-sentence report would be the primary mechanism for that information to be reported to the court. It is therefore unlikely that a court would wish to make a drug treatment and testing order without having considered one.
It is intended that the drug treatment and testing order should be strictly targeted and that courts should only use this disposal where the offender is assessed as suitable for it. It is our expectation that a pre-sentence report assessment will be made in the vast majority of cases. We intend to issue guidance to probation services, sentencers and to treatment providers on the use of the order, which will set out for sentencers the need to obtain a PSR in all but the most exceptional circumstances.
I hope that in the light of this explanation, the noble Lord, Lord Henley, will agree to withdraw his amendment. We are all in effect singing the same song in relation to that.
Perhaps I may deal with the broader points that the noble Lord made, which he rightly pointed out were not in effect covered or prefaced in any way by the terms of the amendment. In essence, his worry is this and I am grateful to him for raising it. The drug treatment and testing orders apply not to over-18s but to 16s and
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over. So there are people, children who will be affected by them. Is that right and proper? Is it a breach of the UN obligations imposed in relation to the treatment of children?
First, as to the second point, DTTOs (drug treatment and testing orders) are intended to replace the requirement as to treatment for drug dependency which can be attached to any probation order by virtue of paragraph 6 of Schedule 1A to the powers of the Criminal Courts Act 1973. A probation order can be imposed under Section 2 of that Act on any person aged 16 or over. So we think it extremely unlikely, if that is what it is replacing, that there is to be a breach of any international obligation. We think it very unlikely that it is inconsistent with the Children Act 1989.
If one looks at Clause 49, what a drug treatment and testing order involve is an order with the consent of the offender that he shall submit to testing for a period of time and that he should comply with a condition in relation to treatment; that treatment being treatment as a resident in such institution or place as may be specified in the order or treatment as a non-resident in or at such institution or place at such intervals as may be specified. The effect of the provision therefore is to give the court disposing of somebody of 16 or over convicted of an offence an additional piece of armoury in their locker. The court will be able, I respectfully submit, to consider whether or not in relation to the facts of a particular case the drug treatment and testing order is an appropriate order to make. They will be able to consider whether, on the facts of a particular case, a 16 or 17 year-old would benefit from that.
It seems to me that it must be to the advantage of the court to have that additional power in its locker to deal with an individual aged between 16 and 18. It must be appropriate to be able to deal with that in the appropriate case rather than having to refer the matter to the family proceedings court, which appears to be what underlies the concerns of the noble Lord, Lord Henley. So giving courts the power seems sensible. They do not have to use it. One can, I think, trust courts to at least consider when it is appropriate to do so. That does not seem to me to be either a bad thing or a harmful thing: it seems to me to be a positive thing.
We know all too well that those aged between 16 and 18 are very often just the sort of people who would benefit from an early intervention in relation to drug treatment and testing to perhaps get them out of the sorts of habits that led them into crime. I hope I have dealt with some of the concerns raised by the noble Lord. If there are any that I have not dealt with, then I undertake to write to him. I shall check Hansard to see that I have dealt with them all.
Lord Henley: I am very grateful to the noble and learned Lord. I note that we now have to refer to the drug treatment and testing order as a DTTO. I rather hoped, when I left the Ministry of Defence some three years ago, that I had got away from acronyms but it seems that wherever one goes one can never quite escape. I am very grateful, as I say, to the noble and learned Lord for his response to my substantive amendment. I also noted what he had to say on the

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further points that I made. As he has done, I also promise to look very carefully at his response and possibly come back to these points at a later stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 48 agreed to.
Clause 49 [Requirements and provisions to be included in orders]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 219A:
Page 38, line 9, after ("officer") insert (", or in the case of a person under 18, a member of the youth offending team for the area.").
The noble Baroness said: With the leave of the Committee, I will present the amendment in the name of my noble kinswoman, Lady David. I align myself with what the noble Lord, Lord Henley, said about the specific needs of young drug takers. They are often immature and often children, and those between 16 and 18 therefore need to be part of the general system of strategies for dealing with young people and children within a particular area. This amendment therefore seeks to ensure that the supervising officer will be a member of a youth offending team which will be familiar with the needs of particular young people in a particular area and will have well placed strategies for dealing with young people, juveniles and young children. It is therefore more appropriate that they should be supervised by a probation officer more used to dealing with adult offenders who may not have at hand all the facilities and the awareness of what may be done for children in particular areas. I beg to move.
Lord Northbourne: I support the amendment. It seems to me that in particular younger drug offenders are going to need support by something like mentoring or befriending. Without that the treatment which is proposed is very likely to be unsuccessful. I suggest therefore that this is a good amendment.
Viscount Tenby: I too support the amendment moved by the noble Baroness, Lady Hilton. We have created, or are going to create, these youth offender teams so let us give them some work to do. It seems to me that where you have under-age people engaged in these things you really have got to have specialist youth offender people counselling them. This is not to say anything against senior probation officers. Of course riot. But it seems to me that where you have young people they should be counselled by people from the youth offender teams. I strongly support the amendment.
Lord Williams of Mostyn: I understand and sympathise with the purpose of the amendment. What it would mean is that for any person under the age of 18 subject to a drug treatment and testing order that person could be supervised by any member of a youth offending team. Under Clause 30(4) that could be a probation officer, a social worker, a police officer, a person nominated by a health authority or a person nominated by the chief education officer. By Clause 30(5) it is provided that it might include such
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persons as the local authority thinks appropriate, and that might include members of the local authority youth service or of voluntary organisations.
It will be possible under the present regime, as envisaged in the Bill, for a young offender subject to a drug treatment and testing order to be supervised by a probation officer who is a member of a youth offending team. This may well be appropriate, particularly when a drug treatment and testing order is made alongside another community sentence which is supervised by the youth offending team; but it does mean that it is essential that the work be properly co-ordinated. We intend to put out guidance to ensure co-ordination, but bearing in mind the very wide span of those who could be on a youth offending team we do not think it is appropriate that such an order for drug treatment and testing should be supervised by any member of a youth offending team. The intention is that probation services will be funded to buy treatment for those subject to the orders outside the usual community care arrangements. They will have to establish contracts and protocols with treatment providers, with which other members of the youth offending team may not be familiar. Therefore, I sympathise with the purpose behind the amendment, but it casts its net too wide, I suggest, to obtain what we believe would he the maximum benefit. The proposed arrangements that we suggest allow for maximum flexibility based on local judgment hut do not set it as wide as the amendment would.
Baroness Hilton of Eggardon: Looking more closely at the amendment, of course the Minister is right: it is too widely drawn. I think the intention was that it would be a probation officer who was a member of the youth offending team. I therefore beg leave to withdraw the amendment and reserve the right to try to devise an amendment which is more strictly drawn so as to ensure that it is a probation officer who is included as a member of the youth offending team. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
Clause 50 [Periodic reviews]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 220:
Page 38, line 27, leave out from ("at") to end of line 28 and insert ("specified intervals").
The noble Earl said: This amendment makes, I believe, a useful rearrangement of the review procedure for what I would prefer to call the DT and TOs. As it stands, Clause 50 (1)(b) requires a review to be held in open court at least once a month. I have no problem with that. At the start of the order it is useful for the DT and TO holder to know that his progress is going to be monitored and reviewed at frequent intervals. This is likely to ensure compliance with the order. Any backsliding will be picked up speedily.
Where I find this procedure to be inadequate is in the middle and later stages of the order. I acknowledge that Clause 50(6) allows the court to dispense with the offender's personal appearance at the review hearing. I believe that there will be merit in allowing the court to

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lengthen the period between the review hearings in the middle stages of the order. It is important for the offender to gain confidence in avoiding the use of illegal substances or, indeed, prescribed drugs and at the same time to gain confidence to enable him to make personal appearances at the review hearings.
Without the power to vary the review period, I fear that the courts will implement Clause 50(6), sooner than may be efficient. That would be a mistake in the middle period of the order and in the middle period of the treatment. It could lead to offenders believing that they had overcome their involvement with drugs at a premature moment. That would be a dangerous signal to a fragile resolve. The opportunity to move the review hearing steadily to a mature position would be useful. I beg to move.
9 p.m.
Viscount Colville of Culross: Amendment No. 220A in my name has been grouped with Amendment No. 220. I listened with interest to the noble Earl and agree with him. Though I do not know a great deal about how things happen in Scotland, I know a good deal about how they happen in England. I tabled my amendment as a vehicle to ask the Minister a little more about these orders.
First, I should say that I welcome the addition of this form of treatment among the armoury that we have to deal with these difficult cases. As the noble and learned Lord the Solicitor-General said, we use probation orders with suitable conditions in order to provide, usually residential treatment but not necessarily so, over a substantial period of time for people who, first, show some inclination to accept treatment and, secondly, who are then assessed by the experts as being suitable for it. That period usually takes a minimum of four weeks.
There are just two things in this series of clauses which run contrary to the practice that is already widespread in the courts. First, instead of relying, as we have up till now, on privately-funded provisions and usually not many of them—I can think of one outside Bristol, another near Oxford and one in Norwich—and funding to send somebody there, we will have successive instalments of local services under Clause 48. I should have thought that, with the court working together with specially provided services in the area, there would rapidly be built up a considerable amount of mutual respect and understanding between the courts and the treatment services provided. We will not be able to use one of the orders until the treatment services are provided and presumably probation orders will continue where they are not provided.
In those circumstances, are the Government saying that they are sure that it is necessary to lay down all these rules in relation to how the courts should handle the matter? The noble Earl put his finger on the intermediate period. He is quite right. What usually happens—at least in severe cases—is that somebody starts off in a residential setting. After he has progressed through that treatment, he is moved to a halfway house, probably in the community, and begins to get himself
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back into ordinary life. All that is done under supervision with gradually relaxing rules and the offender gradually picking up the threads of normal life.
The supervision that is suitable at different stages is not the same, nor is it necessary to come back for reviews as often as may be necessary in the first few months. Amendment No. 220A therefore seeks to address the frequency with which such hearings should take place. However, does the Minister assert that he has not over-provided rules for the courts? He has done exactly the same in Scotland in Clause 75. I suggest, with great humility, that if I table an amendment to include all the provisions in Clause 50, subsections (1), (6) and (7), the Minister will say that it is unnecessary to include any of that in the Bill and that we must be able to trust the courts; they are able to make their own arrangements; they are sensible people and we do not have to lay it all down for them.
On the other hand, the Government have not followed that course. They have laid down some stringent guidelines and I am afraid that they may be too stringent, too circumscribing of the circumstances in which one can make the orders and will therefore put off the courts from using them because it will be too difficult to make sure that one complies with all the details. I do not want that to happen. Can the Minister say whether all of the statutory provisions in primary legislation are necessary for something that is, in essence, an experimental scheme? It might be better to leave out some of the detailed provisions and enable the Government, by guidance or, if necessary, by statutory instrument, to see how it works and fill in such gaps as may be left.
I put that forward as a helpful suggestion. I want it to be as easy as possible for the courts to use these orders and I want there to be built up a good liaison between providers in the local area and the local courts who send people to them. The last thing I wish to see is that this should fail as a result of over-restriction and over-complication of the rules. I therefore support the amendment of the noble Earl at the same time as speaking to mine, and make those points to be helpful to the Minister.
Lord Williams of Mostyn: I am grateful for those helpful observations from the noble Viscount and accept the amendment in the spirit in which it was offered.
Amendment No. 220 would enable the court to order a daily or a weekly review of a drug treatment and testing order. We think that the minimum frequency is right; namely, monthly. If Amendment No. 220 was adopted, it would deprive the courts of any statutory indication of the desired frequency of reviews which we believe are generally suitable. We therefore see no benefit in accepting the amendment.
Sentencers particularly queried the necessity for frequent review hearings during our consultation process and the provision at subsection (6) of Clause 50 was drafted with the specific intention of preventing unnecessary hearings. We do, however, believe that the court ought to have an involvement in reviewing the offender's progress. We think that may well have a

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positive effect on the offender's motivation in treatment. Therefore, we have kept the requirement that there is at least one review hearing, followed by paper reviews where appropriate, at the intervals specified by the court. That is the purpose of Clause 50(6).
In respect of the noble Viscount's amendment, Amendment No. 220A, we believe that it does not produce anything that would have a significant effect beyond what is already offered in the Bill. Under Clause 50(6) the court may decide at a review hearing that the offender's good progress is such that further reviews may take place without a hearing. That gives flexibility to the court. By virtue of subsection (2) of Clause 50, at a review hearing the court, after considering the responsible officer's report, may amend any requirement or provision of the order. So we again believe that subsection (2), as part of the general regime of Clause 50, and subsection (6), as part of the same regime, give flexibility to the sentencing court.
I turn to the specific point made by the noble Viscount. He asked whether we have over-provided by way of restrictions. We think not. We have wanted to have a regime which is intended to be firm and supportive; to give a structured regime to young people who will be in difficult circumstances, many of whom would benefit from such a regime—I think many would welcome it—but equally we recognise the need for flexibility in the court regime which we have sought to provide by subsections (2) and (6). On the basis of those explanations, I hope the noble Earl will not wish to press his amendment.
The Earl of Mar and Kellie: I am grateful to the noble Viscount for his support. The Minister pointed out to me that I had misunderstood Clause 50(1)(a). I thought that "intervals of not less than one month" meant four weeks. Those who suggested the amendment to me thought that they had to be at least once a month or possibly even more frequently. That is why I was asking for a longer period. That point has now been cleared up in my mind.
I turn now to drug treatment and testing orders. I am concerned that the supervision involved does not seem to refer to getting offenders to look at their offending behaviour. It seems to be wholly concentrated on their drug habit or misuse. When it comes to drug testing, which can be very frequent, I believe that cannabis lasts in the bloodstream for far longer than any other drug. I have heard people talk about 28 days. A single breach would show up quite frequently if the person was to be tested weekly. I wonder whether something about that can be incorporated in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 220A not moved.]
Clause 50 agreed to.
Clause 51 agreed to.
Schedule 3 agreed to.
Clause 72 agreed to.
Clause 73 [Requirements and provisions to be included in drug treatment and testing orders]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 221:
Page 60, leave out lines 29 and 30 and insert ("and the nature of the treatment shall include a requirement to attend regular drug counselling sessions while the order is in place.").
The noble and learned Lord said: The terms of the amendment are relatively self-explanatory. They seek to place on the face of the Bill—in new Section 234C of the 1995 Act—a mandatory provision that as part of the treatment requirement of a drug treatment and testing order the accused upon whom the order is pronounced should, in addition to the other forms of treatment he may be receiving under the direction of the specified person, also attend regular drug counselling sessions.
Clearly, the treatment that an offender with a dependence on drugs might receive could include drug therapy, some form of psychiatric advice, or opportunities to improve his self discipline such as work opportunities of a voluntary nature—a great range of ideas which the specified person—the treatment provider—might feel would be helpful. Equally, there is a view that the courts should be seen to be injecting a measure of discipline into the order which has been pronounced. It is suggested that the requirement that there should also be drug counselling sessions on a regular basis might provide that measure of discipline.
I turn to Clause 76 of the Bill where one sees the provision which deals with the breach of drug treatment and testing orders. It is only a breach of the requirement of an order that gives rise to the commission of a statutory offence. That may be felt as a further reason why the order should not be in quite as general terms as Section 234C(2) would currently permit. That is why I am moving an amendment which seeks to delete lines 29 and 30 on page 60 of the Bill and substitutes the words that I suggest. I beg to move.
Lord Hardie: The intention of this amendment appears to be to strengthen the requirements placed on offenders who are placed on drug treatment and testing orders. But the amendment as proposed goes against one of the central principles of such orders; namely, that we should not ask the courts to prescribe the appropriate treatment for each offender. Indeed, the amendment removes the very flexibility to which the noble and learned Lord, Lord Mackay of Drumadoon, referred in his comments a few minutes ago.
The question of treatment is a matter for consideration and decision by the identified person who will be providing the treatment in the light of an assessment of the individual offender's needs. It is very important that the treatment element of an order is as flexible as possible for the reasons explained by the noble and learned Lord since an offender's needs and requirements will change within the duration of an order. We do not want to be prescriptive. The exception is that the court should indicate whether the treatment should be on a residential or non-residential basis. That is provided for in subsection (2).

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Moreover, the suggested provision for treatment to include drug counselling sessions may be less appropriate for many experienced and knowledgeable users who may require a menu of options other than counselling. The options that they may require may include access to maintenance, reduction and de-toxification programmes to support their continuing efforts to reduce drug misuse. Drug counselling may be appropriate—it is accepted that in many cases it will be appropriate—for some users at particular points in the order, but that is best left to the discretion of the person who is providing the treatment in the light of the continuing assessment of the offender's circumstances. I ask the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: I am not sure that I entirely accept what the noble and learned Lord says that the effect of this amendment would be to remove flexibility. All it would do as I understand it and as those who suggested it also understand, would be to impose counselling in addition to what other forms of treatment are appropriate. It is important that these new orders that I personally welcome should command respect. I very much hope that they will. One can only hope that those who are specified as treatment providers recognise that it is important that the orders give a measure of discipline to the offenders and are perceived to do that by members of the public. However, having listened to what the noble and learned Lord the Lord Advocate has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 222:
Page 61, line 20, leave out from ("to") to ("him") in line 21 and insert ("ensure compliance with the requirements of the order, and to enable").
The noble Earl said: This is a probing amendment which is designed to find out why drug treatment and testing orders are to be afforded such minimal supervision. The minimalist supervision required by the Bill is unlikely to meet the needs of those seeking to end their addiction to drugs. Although involvement with drugs is easy to start, it is true to say that it is much more difficult to get away from it. If the drug treatment and testing orders are to be aimed at addicts then the supervision will be inadequate. If, however, the drug treatment and testing order is aimed at the casual user, it may well be effective.
I think I am establishing an order of scale among community disposals for drug users. It seems that the probation order with an extra condition of treatment for drug addiction will be superior to the drug treatment and testing order, which may be judged to be the more lightweight.
I am both amused and concerned by the new style of the monthly review. Unusually, it will be carried out by the sheriff in open court and with the person subject to the order presumably in the dock. It is a tragi-comical situation and I rather suspect that it will create sufficient stress in the individual concerned in the preceding week
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as to cause him or her to breach the order! I wonder whether the new procedure is designed to bring home to the person on the order the urgency and seriousness of it and, I suppose, the possibility of immediate retribution for failure.
Review of an activity such as drug rehabilitation is necessarily a complex and sympathetic process. A more conducive location may be more appropriate. As I believe that more supervision will be necessary than is prescribed by the Bill, I beg to move.
Lord Mackay of Drumadoon: I rise briefly to support the amendment as a probing amendment. I pose this question: what activities that a supervising officer might carry out is the subsection designed to exclude? As I understand it, he is limited to activities which will enable him "to report" in the first two instances and "to determine" in the third instance. What activities might he carry out which would be a mischief which the subsection seeks to prohibit?
Lord Hardie: As I understand it, the intention of the noble Earl's amendment appears to be to ensure that an offender will comply with the terms of a drug treatment and testing order. However, if the amendment were accepted, it would place a specific obligation on the local authority's supervising officer to ensure that the offender complies. That would be contrary to the main thrust of the order, which is not primarily about supervision, but rather about the provision of treatment to eliminate or reduce the offender's dependency on drugs. An order may not be made unless the offender agrees to comply with the terms of the order. It is a little like a probation order: the offender has to agree to comply with it. We hope that by doing so he is indicating a willingness and a preparedness to endeavour to break his drugs habit.
The onus of compliance rests with the offender and it is not necessary or appropriate to seek to place an additional burden on the supervising officer to ensure compliance. In any event, giving practical effect to such an additional requirement would almost certainly be problematic. The supervision element of the drug treatment and testing order exists only to allow the supervising officer to report back to the court on the offender's progress. If the court—this is the point I want to emphasise—considered either at the beginning or in the course of the monthly reports that the offender required closer supervision, it would be open to the court to make or to alter the order in conjunction with another order with a more specific supervision requirement. It may be a probation order, to which the noble Earl has referred. In light of that explanation I invite the noble Earl to withdraw his amendment.
I turn to the point raised by the noble and learned Lord. Lord Mackay of Drumadoon. I am not sure how I can indicate the particular functions that may not be covered. Subsection (8) of the clause indicates that supervision is to be carried out for the specific purpose of enabling the supervising officer to report on progress to the court and to report any failure on the part of the offender or recipient of treatment to comply with the specific terms of the order, as would happen with a

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probation order where a breach would be reported to the court. The supervising officer has an obligation to consider whether he should apply to the court for variation or revocation. One example would be where he believed that closer supervision was required and that perhaps an additional order such as a probation order should be imposed to provide additional support or encouragement to the recipient of treatment to break the habit. I hope that that answers the question posed by the noble and learned Lord, but I suspect not.
Lord Mackay of Drumadoon: The noble and learned Lord may suspect wrongly. As I understand his answer, the clause specifies the purposes for which the supervising officer shall carry out inquiries. The purpose is not to exclude him from any activity that he can reasonably be anticipated to pursue. If that is correct I suggest that perhaps further thought be given to the way in which lines 19 to 21 are framed. As I read them they appeared to limit the way in which the supervising officer went about his duties. However, as I understand the response that I have received I may be wrong about that.
The Earl of Mar and Kellie: I am grateful to the noble and learned Lord the Lord Advocate for spelling out that drug treatment and testing orders are focused on the drugs element of a person's life and do not deal with his or her offending behaviour. Perhaps the situation that I describe in which a probation order with an additional condition of drug treatment is the more onerous of the two community disposals is right. Perhaps that is the way it is supposed to be. I believe that those who read Hansard will be keen to understand what a drug treatment and testing order is all about and how closely focused it is.
This is a new task for the sheriff. He does not normally review progress on orders. Usually the sheriff ends up hearing about the failures in the sense that breaches of probation appear before him. One wonders whether this is a new era in the supervision of community sentences by sheriffs or whether it will be unique to drug treatment and testing orders. Following those one or two wee comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 agreed to.
Clauses 74 to 77 agreed to.
9.30 p.m.
Schedule 5 agreed to.
Clause 78 [Interpretation provision in relation to drug treatment and testing orders]:
Lord Hardie Lord Hardie moved Amendment No. 223:
Page 66, line 37, leave out ("234D to 234G") and insert ("234B to 234J").
The noble and learned Lord said: This amendment rectifies an error which was made when the Bill was drafted. The reference to drug treatment and testing orders in Clause 78, which concerns interpretation
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provisions, is inaccurate because it does not include all relevant parts of the Bill. This amendment rectifies that. I beg to move.
On Question, amendment agreed to.
Clause 78, as amended, agreed to.
Clause 52 [Reprimands and warnings]:
Lord McNally Lord McNally moved Amendment No. 224:
Page 40, line 36, at end insert ("or
(c) where the offender has previously been warned, the constable considers that to continue a rehabilitation programme arranged under section 53(2)(b) below would be more likely to prevent the commission by the offender of further offences than prosecuting him for the offence and the constable considers the offence to he not so serious as to require a charge to he brought;").
The noble Lord said: The amendment provides for a greater discretion for young offenders to receive a second warning for a minor offence when the police consider that continuing with a programme of guidance and rehabilitation would be more likely to prevent reoffending than prosecuting the young person for a further offence.
This could be appropriate in cases where the young person has committed a further minor offence but the police and the youth offending team nevertheless consider the work being done with the child and family, under a programme of guidance and rehabilitation, is showing signs of success which it would he unfortunate to jeopardise.
It could also be appropriate where a minor offence, committed before the earlier warning, comes to light only after the young offender has received a warning and begun a programme of guidance and support.
The clause, as drafted, would apparently also require prosecution in these circumstances. The National Association of Probation Officers welcomes the inclusion in the Bill of the possibility of a repeat warning in appropriate cases. It supports a second warning on the specific ground that the police consider persisting with a programme would be a better option than a prosecution for a further minor offence.
NAPO is surprised—in my amendment I commit the same sin—that the term "offender" is used throughout this clause when there has not yet been a finding of guilt. It would welcome its revision.
Lord Northbourne: I support the amendment. I recognise that we are on the horns of a dilemma here. Repeated cautions have proved counter productive and have led to cautions becoming a mockery. On the other hand, many young offenders have got into the habit of habitual offending before they are caught for the first time, and it takes time for them to get out of that habit during the process of rehabilitation.
To make one warning the only warning they can have before they become criminalised is a mistake. In Toynbee Hall we run a befriending programme and we have a very high rate of rehabilitation. It takes time and during the process of intensive befriending—six hours a week, one-to-one befriending—sometimes the children

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slip back once or twice. Usually, by the end, it is successful. Therefore this amendment is enormously helpful.
Lord Williams of Mostyn: The noble Lord, Lord McNally, made the point about the use of the term "offender". That is because by virtue of Clause 52(1)(a) the offender is defined as a child or young person who has committed an offence. That can only lead to a caution where the child or young person has admitted the commission of the offence. So it is not unreasonable, the offence having been proved by way of admission, to call that person an offender.
I take the points made by both noble Lords. We are resolved to avoid the dangers mentioned by the noble Lord, Lord Northbourne, about repeated cautions or—it is just as fundamental—the opportunity that a final warning will not really be such. We share a deep public unease about repeated cautions, which are very often linked to delays in the system.
Repeated cautions and delays are counter-productive for many young people. We need to provide a clear, unambiguous message that offending is wrong and that continued offending will be met by a progressively tougher response. We want to have a system that is straightforward and well understood, and which we believe therefore would be properly respected, which cautioning, by many young people at the moment, is not. There should be clarity within the youth justice system if we are to get young people to respect the criminal justice system and to have the opportunity of early intervention on their behalf by way of support and assistance.
The amendment moved by the noble Lord, Lord McNally, gives an additional ground for issuing a second warning. I concede that there is already provision for a second final warning in the tightly defined circumstances in the Bill. We believe that that discretion would be too wide. Apart from the point of principle, we believe that it would be cumbersome for a police officer to have to come to a conclusion about rehabilitation, and time would therefore pass. In many circumstances, delay is the enemy of the offender as well as the enemy of the system.
We have pondered about this carefully, and thought that we should draw the line in this way. Having reflected on the lessons of the past, we have come to the conclusion that many young people are just not helped at all by too flexible an approach. We believe that we have struck the balance about right. I cannot claim that we think that we have done more than that, but that is the response that I offer the noble Lord.
Lord McNally: I recognise the dilemma that the Minister faces in drawing a line in these cases. Some experienced people and bodies are concerned about where he has drawn the line. I am sure that they will read what he has said this evening. We may have to come back and explore this again. I thank him for the spirit in which he responded. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 225:
Page 40, line 40, at end insert
("(4A) Before administering a final warning to a person a constable shall as soon as practicable refer the person to a youth offending team.
(4B) A youth offending team—

(a) shall assess any person referred to them under subsection (4A) above, and

(b) unless they consider it inappropriate to do so, shall arrange for him to participate in a rehabilitation programme.

(4C) A constable may administer a final warning to a person where it is considered inappropriate for that person to participate in a rehabilitation programme.
(4D) When a person has completed a rehabilitation programme under subsection (4B)(b) above, the youth offending team shall as soon as possible deliver a report to the constable referring the person under subsection (4A) above, indicating whether or not they are satisfied with the manner in which that person has participated in the rehabilitation programme.
(4E) Subject to subsection (4C) above a final warning may not be administered by a constable unless the constable has received a report from the youth offending team indicating that they are satisfied with the manner in which that person has participated in the rehabilitation programme.").
The noble Lord said: I shall speak also to Amendment No. 230. Within the group is Amendment No. 233, and I can assure the Committee that I shall not move it when it is reached. For the convenience of the Committee, I say also that I shall not be moving Amendment No. 232A to Clause 53 when I come to it.
As my noble and learned friend said in regard to an earlier amendment, I believe that these amendments speak largely for themselves. They merely provide for a greater involvement of youth offending teams—a point to which the noble Viscount, Lord Tenby, referred on an earlier amendment, as something that we should be pursuing—by making greater use of them. The amendments merely allow for greater use of the youth offending teams when final warnings are to be given. The amendment provides:
"Before administering a final warning … a person … shall as soon as practicable".
be referred to a youth offending team which will then obviously assess the individual and, unless it considers it inappropriate, shall arrange for him to participate in a rehabilitation programme.
Amendment No. 230 suggests that the Secretary of State shall publish appropriate guidance on what should be included in a rehabilitation programme arranged for a person under the subsection. As I said, the amendments speak for themselves. I look forward to hearing the Government's response which I shall consider. I beg to move.
Lord Williams of Mostyn: We return to consideration of a principle, which I sought to address in response to the amendment tabled in the name of the noble Lord, Lord McNally. We believe that a final warning is critically important. If it is to be of central significance it must be administered quickly. There must be a clear link between crime and punishment or sanction in the mind of the young offender. Three months to Members of your Lordships' House is not a very long time. Three months in the life of a young

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offender is a lifetime. One must bear in mind that children are not just small adults, but that their perspectives are completely different.
I understand that the amendments are put forward with good motive, but they involve deferring the issue of the warning until after assessment by the youth offending team and, where appropriate, participation in a rehabilitation programme. I stress that I understand the good motive behind them, but they would undermine the Government's central objective. We are not talking about potential delays of a few days or even weeks. The interval between the offence being committed and the young person receiving a final warning would be many months. That would destroy the whole purpose, structure and concept of the final warning.
For an intervention programme to be successful, it will have to be tailor-made for each young offender. It will involve a detailed implementation plan, probably including counselling, reparation action with victims where appropriate, referral to some supervised community or youth activities and work to improve school attendance and performance. Those activities cannot be completed quickly, nor will the young person's commitment to the programme be clear in many cases until some time has passed. If the final warning cannot be issued until all those steps have been taken, with the youth offending team satisfied with the young offender's participation in the programme, there will plainly be significant delay.
Again, arguments of principle are involved. If a final warning is dependent on a satisfactory participation and intervention programme, assuming that an intervention programme continues for some months, is it fair that when a young offender fails to complete satisfactorily he is prosecuted for the original offence? That would be the implication of the amendments. We do not believe that that would be satisfactory in the interests of the individual child and it certainly derogates from the structure and the scheme which we put forward. The rehabilitation programme would not be the sentence of the court. Failure to complete it could not be dealt with in the same way as a breach of a community penalty.
As regards legal principle, there is the question of whether one ought to induce a child into an intervention programme with the possibility that if he fails to comply, and as a warning would not then necessarily be appropriate, prosecution might be the only alternative. We believe, therefore, that delay is the enemy of the young child. We want a warning delivered promptly so that it firmly focuses a connection between sanction and offence in the young offender's mind. Despite the fact that the amendments are well meant, we believe that they would have harmful consequences.
Lord Henley: I am grateful to the Minister for that helpful explanation. I ought to have listened more closely to the explanation which he gave to the noble Lord, Lord McNally. However, to offer the Minister some succour as we head towards ten o'clock, I assure him that I shall not return to this point on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 226:
Page 41, line 3, at end insert—
("() Subsection (5) above shall have effect in relation to a young person who has attained the age of 17 as if the words "in the presence of an appropriate adult" in paragraph (a), and the words "and the appropriate adult" in paragraph (b), were omitted.").
The noble Lord said: There are a number of amendments before us tonight concerned with the requirement that an appropriate adult must be present when a warning or reprimand is issued to a young person. Obviously, that is intended as a safeguard for a young person at a police station and to ensure that the young person is aware of the consequences of receiving the warning or reprimand. An "appropriate adult" in the Bill includes a parent, guardian, representative of a care home, social worker or, if none is available, •any responsible person of 18 or over who is not a police officer or employed by the police service.
The Government seek to make an amendment to the clauses which concern "appropriate adults". That is really to mirror the existing "appropriate adult" provisions under the Police and Criminal Evidence Act 1984. However, in one important aspect, as presently drafted, the Bill is not consistent with PACE. Under PACE a juvenile is a young person aged under 17 whereas Clause 52 regards 17 year-olds as juveniles. Therefore, there would be an anomaly and the consequence would be that a 17 year-old could go through the process of arrest, detention and interview without a parent or appropriate adult, only for one to be called in at the very last stage. That would be an absurdity.
That does not mean that parents should not be present when a 17 year-old receives a warning or reprimand. In most cases, if the young person is still living at home, the presence of one or both parents is a valuable means of ensuring that they are fully aware of the child's offending behaviour and, one would think, may well in some cases be a further sanction to assist in preventing further offending.
Therefore, we shall issue guidance to police forces to make it clear that the presence of a 17 year-old's parent or guardian should always be looked for and that obviously parents can play a critical role in helping a young person not to reoffend.
Where the parents or guardian are unable to attend the police station for some practical reason or, as in some cases, they simply refuse, there will be no statutory obligation to secure the presence of an alternative appropriate adult. On the basis of that explanation, I beg to move.
9.45 p.m.
Lord Henley: I rise in a spirit of genuine inquiry. I have nothing against the amendment as explained by the noble Lord but I am perplexed by its drafting. I do not know why it should be drafted in such an obscure manner which makes it virtually impossible to understand exactly what the amendment is doing to

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subsection (5). Once those words are added on page 41 at the end of line 3, one then has to look at that and then refer back to paragraph (b). I ask the Minister to try to do that himself. Perhaps he will ask the parliamentary draftsman to find a simple way of achieving his objective. It should be possible for someone like me and for others to understand exactly what is intended without having to refer to the noble Lord's lucid speech which will appear in Hansard tomorrow.
Lord Williams of Mostyn: If we can improve it, then we shall try to.
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 227:
Page 41, line 21. at end insert ("or a probation officer").
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 228. The amendments relate also to the definition of "appropriate adult" in relation to who should be present when a juvenile is reprimanded or warned.
In these amendments I seek both to widen and to narrow the definition of "appropriate adult". As drafted, the provision that any responsible adult may act as the appropriate adult is totally inappropriate when one is dealing with young persons who need, as has been said already, to treat the reprimand or warning with considerable seriousness. As has also been said, over the years police cautions have fallen into disrepute often because the conditions in which they were administered have varied enormously. There has been a lack of uniformity and a tendency to treat them with considerable casualness. Therefore, it is extremely important that the appropriate adult should be clearly defined. It should be made clear to the child that it is someone with whom he is likely to have a continuing relationship and not just any old adult over 18 who may be brought in off the streets to act as a witness that the police are behaving properly.
I also feel that to include social workers in the definition of an appropriate adult but not to include probation officers is a mistake. Therefore my other amendment seeks to define probation officers as one of the appropriate adults who may be present. I beg to move.
Lord Williams of Mostyn: As I indicated a few moments ago, we want to make the definition of an appropriate adult consistent with that already provided for under PACE. The PACE provisions, of course, seek to safeguard a young person's interests through all investigative processes including charge.
If these amendments were accepted, we would have a situation—as I mentioned a few moments ago—where we had two quite different definitions of "appropriate adult", one for the investigation, as provided for by PACE, and another at the point at which a reprimand or warning is issued. We do not think that that is logical; we think it is impractical. We believe that the system of
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appropriate adults which operates under PACE works well and we do not see the necessity to introduce a different system here.
However, I reiterate, we appreciate that the role of appropriate adults needs to be covered by guidance to be produced by the Government. I have already undertaken that that will be done. The guidance will make it absolutely clear that, wherever possible, the adult with direct responsibility for the young person should be the appropriate adult present when a warning or reprimand is issued. The aim is to ensure that parents are aware of the extent and nature of the young person's offending behaviour and that they recognise their responsibilities for their children. I hope that with that explanation the noble Baroness will not seek to press these amendments.
Baroness Hilton of Eggardon: I do not seek to press the amendments but I am disappointed that the provision concerning any responsible adult will remain in place. I hope that the guidance that is issued will encourage police officers when organising reprimands and warnings not to resort to any responsible adults except in extreme circumstances. It should be someone who currently knows the child, or is responsible for him or her, or is likely to be responsible in future; otherwise, I think that reprimands and warnings will fall into the same disrepute as police cautions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 228 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 229:
Page 41, line 26, leave out ("and any") and insert—
("(9) Any").
The noble and learned Lord said: In moving this amendment, I wish to speak also to Amendment No. 339. These amendments are purely technical. References to cautions given by the police in England and Wales to children or young persons occur in United Kingdom legislation. They can also occur in Scottish as well as purely English and Welsh legislation. It is therefore necessary for reasons of consistency to extend to Scotland the provisions that references in statute to such cautions should in future be taken to include a reference to a child or young person being reprimanded or warned. This is achieved by Amendment No. 339.
In order to avoid ambiguity we have introduced Amendment No. 229 which will ensure that the provision prohibiting future cautioning of children or young persons does not extend to Scotland where we do not have a formal system of police cautions and where therefore the provision would at best be meaningless. I beg to move.
The Earl of Mar and Kellie: I am certainly interested in the explanation of the noble and learned Lord the Lord Advocate because to me what is called a caution—I shall give it the correct Scots pronunciation of "kayshun"—is a form of temporary financial penalty. I wonder whether I am right about the spelling.
Lord Hardie: The noble Earl is, of course, correct. The word in Scots law pronounced "kayshun" is spelt

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"caution'", but what we are talking about here is something quite different. We are talking about formal police cautions in England which do not apply to children or young persons in Scotland.
On Question, amendment agreed to.
Clause 52, as amended, agreed to.
Clause 53 [Effect of reprimands and warnings]:
[Amendment No. 230 not moved.]
Baroness David Baroness David moved Amendment No. 231:
Page 41. line 31, leave out ("Where") and insert ("Before").
The noble Baroness said: I shall also speak to Amendment No. 232.
This amendment provides that a warning shall be given to a young offender after—not before—an assessment by a youth offending team.
The Bill provides that a warning will prompt an investigation of the young persons's circumstances and behaviour, which will normally be followed by a programme of intervention planned by the youth offending team which will provide guidance and support to help prevent reoffending. The Government consultation paper. Tackling Youth Crime, published in September, said that a warning,
"will need to he issued without unnecessary delay, possibly before a detailed assessment has been made of the scope for providing a suitable intervention programme and of the likelihood that the offender would complete the programme and benefit from it".
The Government invited comments on two options. Option A was that the warning would be issued before an assessment: the police or an invited member of the youth offending team would explain the likely demands of an intervention programme and the warning would be issued provided the young person agreed to undertake the programme in principle. Option B was that the warning would he issued after the case had been referred to the youth offending team for assessment, to be completed within a time-limited period of, say, two weeks. The Bill as drafted incorporates Option A.
We favour Option B, whereby a warning would be issued after an assessment by a youth offender team. In practice it would be more difficult to gain meaningful consent by the offender to a diversion programme when the details of the programme were unknown or hypothetical. This amendment therefore provides for Option B to he inserted into the Bill. As the Government invited comment, I hope that this comment will be taken seriously. It seems to have a lot of good sense attached to it.
Amendment No. 232, grouped with Amendment No. 231, would leave out subsection (4) of Clause 53, which provides that courts should not, except in exceptional circumstances, conditionally discharge a young offender who is convicted of an offence within two years of receiving a warning.
A conditional discharge can be over-used—but one reason for this is at present the current absence of any low-tariff non-financial penalty, which will be rectified by the introduction of the reparation order. However, there are many situations in which conditional discharge is entirely appropriate. These include cases where there
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are strong mitigating features, welfare considerations or developments since the offence which make a merciful sentence appropriate, but an absolute discharge (which should be used where the offender is technically guilty but no real blame attaches to him or her) is inappropriate or insufficient; where the court judges that the effect of a court appearance coupled with the threat of punishment for the current offence and any new one if the young person reoffends, constitute a useful and sufficient deterrent; or where the offence is trivial.
A high proportion of offenders who receive a conditional discharge on their first court appearance are not reconvicted. We would have no objection to a provision requiring courts to give reasons for giving a conditional discharge, as a useful discipline to ensure that there are positive reasons for using it.
Both these amendments are important and I hope that they will receive very sympathetic consideration. I beg to move.
Lord Williams of Mostyn: The noble Baroness is quite right in saying that the two options included in the consultation paper, which she described as A and B. were respectively the provision in the Bill and what the noble Baroness contends in Amendment No. 231.
The consultation paper highlighted the fact that there is a cost in giving the police more information upon which to base their decisions. The costs are: slowing down the process, introducing delays and therefore, for the reasons I mentioned on a number of occasions earlier in this general context, significantly reducing the impact of both the warning and the intervention. Responses to the consultation paper suggested that, in practical terms, there is or may be no clear distinction between the assessment and implementation phases of the youth offending teams' work. A number of respondents suggested that assessment may well take considerably longer than the two weeks suggested in the paper. We considered those comments extremely carefully. The noble Baroness said that the consultation paper invited comments and we considered them carefully. The Government decided that in the light of the comments the benefits of allowing for assessment before issuing a warning did not outweigh the crucial importance of providing a swift response to the young person's offending behaviour.
I need not repeat the observations I made earlier on related amendments. The second amendment, Amendment No. 232, removes from the Bill the proposed restrictions on the use of conditional discharge following a final warning. We believe that those restrictions are an essential component of the final warning scheme and should be retained.
If a young offender offends again after receiving a final warning, having taken part in a rehabilitation programme, effective action must be taken to break the cycle of offending behaviour. A conditional discharge would have quite the opposite effect, we think. It tells the young person that the court regards his or her continuing offending behaviour as insufficiently serious to warrant substantial punishment. It would do nothing actively to divert the young person from crime. We

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think that common sense would suggest that a young person who has already received a final warning and taken part in a rehabilitation programme is hardly likely to be dissuaded from crime by a conditional discharge.
Therefore, we do not believe the amendment to be necessary or appropriate. We think that the balance is properly struck in these respects.
10 p.m.
Viscount Tenby: Perhaps I may interpose before the noble Baroness, Lady David, makes her response to the Minister. I am always reluctant to endorse any measure which restricts sentencing options. Over the years, a conditional discharge has proved its value. I understand entirely what the Minister said about a person who has been subject to all the reprimands and various stages of the reprimand process not being perhaps susceptible to conditional discharge. But nevertheless I feel that it has earned its way over the years.
The point is that it has been used so much in the past because there has been no alternative. But we now have an alternative in the form of the reparation order. Surely the problem about the over-use of the conditional discharges can be easily overcome by making courts state the reasons for giving conditional discharges at any given time. I am sorry to interpose at this delicate stage of the amendment, but I urge that we come back to the point at a later stage.
Lord Williams of Mostyn: Perhaps I may respond to the noble Viscount. As the Bill is drafted at present, the conditional discharge as a sentencing option will be available but only in exceptional circumstances relating to the offence or offender so that flexibility is retained there. I shall not trespass on a further amendment about the giving of reasons, Amendment No. 232A, but I take the noble Viscount's point.
Viscount Tenby: I am sorry, I jumped the gun.
Lord Williams of Mostyn: Not at all, it was helpful that the noble Viscount referred to that in the context.
Baroness David: We are getting used to having not very good responses—or not very satisfactory responses, should I say. I am disappointed. I think that Amendment No. 231 and Option B are superior to what is in the Bill. I was glad to have the noble Viscount's support for keeping the conditional discharge. It can be used in exceptional circumstances, but I shall not ask the Minister to give me a list of what those possibly are at this time of night. I am not satisfied with the answer, so although I shall withdraw the amendment at the moment, I am likely to come back to it at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 232 to 233 not moved.]
On Question, Whether Clause 53 shall stand part of the Bill?
Baroness Anelay of St Johns: I raised objections to Clause 53 on Second Reading, and I am grateful to the noble Lord, Lord Williams. for writing to my noble friend Lord Henley, on these issues. However, I have to say that he has not quite allayed my anxieties just yet. Of course, like other noble Lords, I support the objective of preventing reoffending and securing the rehabilitation of young people, but I believe that Clause 53 goes substantially beyond the current local schemes for cautioning. I believe it is important that the new proposals should be as fair and workable as possible now that they are being put into a statutory framework. I gave notice that I would oppose Clause 53 stand part simply so that I could raise specific points which have been put to me by individual lay magistrates and by individual justices' clerks. I ask the Minister tonight to address the following points which they have made.
It has been put to me that it is plainly wrong for an offender to be sentenced by anyone other than a court and it is believed that this is effectively what can happen under Clause 53. Quite apart from the main principle involved, a number of other questions have been raised. For example, suppose that the requirements of the rehabilitation programme are unreasonable, disproportionate or objectionable. If the offender declines to co-operate is it then really fair or acceptable that such disinclination is to be recorded and notified to others as a failure within the terms of this clause? Let us suppose that the offender does have a reasonable excuse: is there really to be no independent arbiter of that?
In future criminal proceedings of course the failure may be cited. What notice is the court expected to take of that citation? Is it right or acceptable that the citing of the failure should increase the severity of the sentence for later and different criminal proceedings? The implication of Clause 53(5)(c) is indeed just that. What if the offender challenges the correctness, or the whole basis on which the failure was itself recorded? What is the court to do then?
It has been put to me by two separate people that the potential for unfairness is incalculable and I respect their views because they are closely involved in the running of the court system. It is worth noting at this stage that subsequent clauses impose statutory constraints upon the court's powers to make an action plan order; yet at this stage the Bill imposes no restraints on the youth offending team and their activities under Clauses 52 and 53.
Clause 53(3)a) appears to make any constraints which might be imposed dependent solely upon the decision of the Home Secretary of the day. Far be it from me to argue against the Home Secretary playing a role in determining sentences. To do so would be to run counter to the arguments I myself put in the Unstarred Question asked by the noble Earl, Lord Longford, just last Wednesday. However, surely such action should be reserved for only the most serious offences which carry

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a penalty of a mandatory life sentence. I should be grateful if the Minister could tonight address those concerns.
Lord Williams of Mostyn: I am most grateful for the way in which those questions have been put. The first question is: how is it to be fairly safeguarded so that only unreasonable non-compliance should draw a sanction? I can assure the noble Baroness that guidance will be issued to youth offending teams to make sure that only unreasonable non-compliance is recorded. There are always going to be some circumstances where a young person may well be unable to fulfil some aspect of a rehabilitation programme for reasons beyond his or her control. The guidance will also make clear—and I hope this will find approval in the Committee—that the young offending teams would be obliged to inform the young person and his or her family in writing of the consequences of continued non-compliance, so that the young person has an opportunity to comply before the non-compliance is recorded.
Why should reprimands and warnings be cited in court? We believe that to come to a just conclusion the court should be aware of offending history—as is commonplace at present. The response of the youth justice system to young people's offending behaviour ought to be progressive and it is important that a court be aware of previous reprimands and warnings. The Home Office circular indicates that cautions issued for offences committed by a person before the present relevant offence may be cited in court. We therefore see no difficulty in principle, although I understand that the guidance needs to be carefully considered.
We believe that failure to complete a rehabilitation programme should be a relevant factor in subsequent proceedings and, subject to the proviso I made earlier, it is only unreasonable non-compliance which ought to be the basis of subsequent consideration by a court. A court may vary considerably in the weight that it pays to the failure to comply. It may come to the conclusion that some of the compliance requirements were over-onerous which may lead it to the conclusion that it was not unreasonable not to comply; or it may come to the conclusion that, if it was unreasonable, it should not feature large if at all in the determination of the sentence passed. Those are the sort of difficult, subtle problems with which magistrates in youth courts regularly deal at the moment.
One question that was the subject of discussion concerned the fact that, if reprimands and warnings can be cited and are part of a criminal record, what is the relationship to the Rehabilitation of Offenders Act? That is a useful point to make at this stage; it is part of the general anxieties that the noble Baroness and others have had. I can say to the noble Baroness, I hope helpfully, that the Government are considering whether any changes to the Rehabilitation of Offenders Act are necessary in the light of the new arrangements in the Crime and Disorder Bill. Currently, the Bill does not provide for police reprimands and final warnings to be subject to the Rehabilitation of Offenders Act 1974. We are therefore looking at the situation in the context of that Act.
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The curiosity of the moment is that cautions are not covered. We believe that that is substantially because the Rehabilitation of Offenders Act is now over 20 years old and perhaps has not kept pace with changing police practice as to cautions. Cautions are now used by all police forces as standard practice and we need to look at that in the context also of the rehabilitation of offenders. I am not giving any guarantee, but it is recognised by the Home Office that the Act of 1974 needs to be looked at in the context of cautions, reprimands and warnings.
Amendments to the 1974 Act will be complicated and we need to give the matter careful consideration before coming to a conclusion as to the final form of any amendment to that Act. I hope that my response has been of assistance to the noble Baroness.
Lord Northbourne: In referring to the rehabilitation programme, the noble Lord drew a picture of young people striving to play their part in the rehabilitation programme supported by their parents. Can he give an assurance that, where a child does not have effective support from the parents, the youth offending team will make arrangements for the child to be supported and that funding will be made available to do that?
Lord Williams of Mostyn: I made it plain earlier that our preference is for parental support. Equally, I made it plain that preference is sometimes Utopian and, for the reasons given by the noble Lord from his own experience, quite often parental support is not forthcoming. If it is not forthcoming or is refused, as it often may be, then alternative arrangements must be made if the scheme is to have any prospect at all of working.
10.15 p.m.
Lord Thomas of Gresford: I wonder whether the noble Lord can assist me in understanding subsection (3). It states:
"The Secretary of State shall publish … guidance as to … the persons to whom any such failure"—
the failure to participate in a programme—
"is to be notified".
Subsection (5) states:
"any report on a failure by a person to participate in a rehabilitation programme arranged for him under subsection (2)".
Does subsection (3)(c) have anything to do with subsection (5)(c)? Is the notification the same as the report? Has any thought been given to the persons who are to be notified? I should be grateful for guidance on that.
Lord Williams of Mostyn: Subsection (3)(c) is the consequence of Clause 53(3), which obliges the Secretary of State to publish guidance as to what should be in the programme, the manner in which any failure to participate is to be recorded and the persons to whom any such failure is to be notified—for instance, chief officers of police and people of that kind. The Secretary of State has yet to determine that. Clause 53(5) states that a reprimand under Section 52, a warning under

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Section 52 and a report on a failure by a person to participate in a rehabilitation programme arranged for him under subsection (2) may be cited in criminal proceedings in the same circumstances as a conviction. So what one has there is that a failure may be cited at a subsequent court hearing as part of the material at which the court will be able to look in coming to its decision about what penalty, sanction or course of action should be followed subsequently. For the reasons I gave earlier, I do not believe that to be unreasonable because it is a relevant aspect of the offender's response to court sanctions.
Lord Thomas of Gresford: Do I understand correctly that the persons to whom such failure is to be notified are not the persons who provide the report referred to in subsection (5)(b)?
Lord Williams of Mostyn: We may be at cross purposes. Clause 53(3) requires the Secretary of State to publish guidance on, first, what should be in the programme; secondly, on how failure should be recorded; and, thirdly, on the persons to whom any such failure is to be notified. Clause 53(5)(c) states that a report on a failure by a person to participate may be cited in criminal proceedings. I do not see the difficulty.
Lord Thomas of Gresford: The point that was strongly made by the noble Baroness was that the report becomes in the nature of a conviction that is to be cited in criminal proceedings. It is not clear whose responsibility it is to make the report that will become part of the record—the criminal conviction record—of the person who has failed to participate in a rehabilitation programme. Is it to be the youth offending team or is it to be the chief constable who has received notification?
Lord Williams of Mostyn: I think that the noble Lord is now making a completely different point. He asked, first, under Clause 53(3)(c), to whom the failure should be notified. He is now asking who should notify that failure. The answer is to be found in Clause 53(3); namely, that the Home Secretary will have to give guidance to designate those persons. Until the Home Secretary publishes guidance, I am not in a position to say what will be in the guidance.
Baroness Anelay of St. Johns: I thank the Minister for his courteous and full reply. Although there are still aspects of the clause which may cause concern to some, I feel that he has reassured me on the points that I raised. I do not raise any further objections to Clause 53.
Clause 53 agreed to.
Clause 54 [Reparation orders]:
Lord McNally Lord McNally moved Amendment No. 234:
Page 42, line 29, after ("order") insert (", which arrangements shall include consultation with the victim, by mediation or other means, as to reparation,").
The noble Lord said: As I believe the Minister knows, I come very new to matters of penal policy. As a newcomer I was intrigued by the briefing that
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I received about reparation orders. In such an order we may have the response to young offending which meets the point made earlier by the Minister as regards getting young offenders to relate closely to the consequences of their crime. If the punishment is too far distant both in time or in kind, the enormity of what he has done does not come home to the offender. Evidence sent to me, and the remarks of my noble friend Lord Mar and Kellie about his Scottish experience, suggest that reparation orders may be a winner as regards their impact on young people and in enabling victims to come to terms with the shock that often goes with them.
It is particularly important that reparation orders include the victim if he or she is willing. That could be achieved by a conference when the specific reparation is agreed, having heard the views and circumstances of the party; or, if the victim does not want to meet the offender, by the use of mediators who visit each party in order to obtain agreement to the type and kind of reparation. The amendment underlines the importance of involving the victim. In moving it I make the more general point to the Minister that reparation orders appear to be well worth pursuing if the briefing or evidence sent to me is in any way general proof of their effectiveness. I beg to move.
The Earl of Mar and Kellie: Perhaps I may briefly support my noble friend's amendment. It is true that SACRO runs mediation and reparation projects in Scotland. These are carefully counselled and prepared experiences. It is not something to be entered into lightly or in any way as an arm-twisting experience, particularly for the victims.
I approve of the fact that the orders for England and Wales in Clause 54(2)(b) include the community at large. That is a good alternative. I note in subsection (5) that the period cannot be for more than 24 hours. These seem to be short-term community service orders and I approve of that.
Lord Falconer of Thoroton: I am grateful for the support of the two noble Lords who have spoken for the concept of the reparation order. I underline what the noble Lord, Lord McNally, said. The purpose of such an order is in effect two-fold. First, it is to make the young offender face up to the human consequences of what he or she has done; and, secondly, to allow the victim of the offence an opportunity to receive direct reparation from the young person. I also very much agree with what the noble Lord, Lord McNally, said: that in effect one should not force reparation on an unwilling victim, which in effect is what I believe underlies his amendment. We share that view, but we believe that it is not necessary to deal with it by this or any amendment that he proposes. Perhaps I may draw the noble Lord's attention to Clause 54(5)(b), which requires that a reparation order shall not require the offender,
"to make reparation to any person without the consent of that person".

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First, therefore, you need the consent of the person to whom the reparation order has been made. Secondly, and just as importantly, Clause 55(1) states:
"Before making a reparation order, a court shall obtain and consider a written report by a probation officer, a social worker of a local authority social services department or a member of a youth offending team, indicating …
(b) the attitude of the victim or victims to the requirements proposed to he included in the order".
So, before any order is made, it has to be with the consent of the victim and, separately, a report must have been written setting out the victim's views. The preparation of that report will vary in accordance with local arrangements. The flexibility of Clause 55 allows it to be written by a probation officer, a social worker or a member of the appropriate youth offending team. Similarly, the way in which each report writer will go about obtaining the victim's views will also vary from area to area. The amendment specifically refers to mediation as a suitable method of consultation.
The Government are aware of the value of such an approach, and of the successes that that approach has had in projects throughout the country. However, we do not want to be too prescriptive about the way in which a particular victim's views are sought. We hope that the new youth offending teams will be tapping into many services, both statutory and voluntary, which already exist in their areas. It will be incumbent upon each team to make the best use of local resources and experience. I have no doubt that the guidance which the Government will issue to support the reparation order will be of value here. I think that we share the same aims. I believe that our Bill reflects that and I very much hope that in the light of that explanation, the noble Lord will be minded to withdraw his amendment.
Lord McNally: In the light of that full and reassuring explanation, I shall be pleased to beg leave to withdraw my amendment. The key word in my amendment is "consultation". I hope that that is what the noble and learned Lord means when he refers to various inquiries. All this can be intimidating for a victim and there can be an element of bounce if an official comes along and suggests a way ahead.
The Solicitor-General was clear that the provisions mean genuine consultation and that if the victim is not willing, that path will not be pursued. As I have said, the evidence that I have received from a wide range of sources suggests that reparation orders could have an important impact on juvenile crime. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Baroness Nicol): We now come to Amendment No. 235. I must inform the Committee that if this amendment is agreed to, I shall be unable to call Amendment No. 235ZA or Amendment No. 235A.
Lord Henley Lord Henley moved Amendment No. 235:
Page 42. line 31. leave out subsection (4) and insert—
("(4) The court shall not make a reparation order in respect of the offender if it proposes to pass on him a custodial offence.
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(4A) Subject to subsection (4) above a court may make a reparation order under subsection (2) above instead of or in addition to dealing with him in any other way.").
The noble Lord said: I should stress that I have no intention of pressing this amendment, so there is no danger that noble Lords who wish to speak to the other amendments grouped with this will be denied their opportunity to do so in due course.
Amendment No. 235 has been tabled in a spirit of inquiry. I should like to know, first, why a reparation order cannot be made when, as subsection (4) puts it, the court passes a custodial sentence on an offender. If the reparation order was intended to force the offender to do certain things, he would not be able to do those things if he was locked up—that is, unless he was only required to pay some compensation. That brings me to my second question: where in the Bill are we told exactly what a reparation order is? There is a reference to a "reparation order", and subsection (4)(b) of Clause 54 also refers to a "compensation order". I presume that "compensation" implies financial compensation to the victim, whereas "reparation" implies something else. I would be grateful to receive an explanation as to where in the Bill "reparation" is precisely defined. I beg to move.
10.30 p.m.
Baroness Hilton of Eggardon: With the leave of the Committee, I speak to Amendment No. 235ZA in the name of my noble friend Lady David. The amendment has a similar purpose to the previous one but is intended to give the courts the flexibility to make a compensation order in addition to a reparation order. The noble Lord, Lord Henley, may be assisted if I paint the scenario of an Asian family that has suffered racial harassment. Perhaps the windows of the family home have been broken and graffiti scrawled on the walls. It may be of benefit if the court can make a compensation order to pay for the broken windows to be mended as well as a reparation order to make the offender remove the graffiti from the house. As I understand it, reparation orders include practical work like gardening, mending fences or cleaning up graffiti, whereas compensation orders provide for financial compensation. It is a pity that the Bill as drafted does not allow for a court to make a compensation order as well as a reparation order. Clearly, one does not want to overburden an offender with heavy financial penalties and make him do some useful work, but I believe that there are situations in which a small amount of reparation and compensation may go hand in hand.
Viscount Tenby: I do not know whether I am speaking to Amendment No. 235, or to Amendment No. 235ZA or Amendment No. 235A which have not yet been moved. I associate myself with the comments of the noble Lord, Lord Henley, and the noble Baroness, Lady Hilton. I support the concept of compensation orders. The concept of a reparation order is an admirable one. I very much endorse the warm support given to it by the noble Lord, Lord McNally. I believe that we are on to something here. It is very good. It is to be hoped that, more than anything else, its implementation will

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bring home to the vandal, miscreant—call him what you will—that society finds such behaviour unacceptable. One hopes that it will also go a long way towards mollifying the aggrieved in each case. Dare one say that in the right circumstances it may even build up some relationship between the parties in exceptional cases?
To exclude the possibility of a compensation order also being made may be to do only half the job. In any event it may do an injustice to the very same aggrieved. After cleaning off the graffiti, why should the perpetrator not pay also for the broken window or the damaged stock in the shop? In the senior courts, although a compensation order can be a disposal in its own right surely it is far more common to find it tied to a criminal damage or ABH case. Accordingly, I ask the Government to think again about this matter.
Lord Falconer of Thoroton: I believe that effectively two separate questions are raised by the discussion. First, what is the definition of a reparation order? Secondly, with what other penalties should a reparation order be combined? As to the first question, the only definition in the Bill is in Clause 54(2) which states that,
"the court by or before which the offender is convicted may make an order … which requires the offender to make reparation specified in the order to a person or persons so specified; or to the community at large".
Subsection (6) provides:
"Subject to subsection (5) above, requirements specified in a reparation order shall be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it".
Apart from that, the Bill not is intended to be proscriptive.
What in practice does it mean? My noble friend Lady Hilton and the noble Viscount, Lord Tenby, have got it exactly right. The reparation required may consist of a simple apology and an explanation, either in person or in a letter. It may also include simple tasks which are related to the type of offence committed—repairing a broken fence, weeding flower beds, washing a car or cleaning graffiti. That sort of small matter brings home to the offender what he has done and, to some extent, provides reparation to the victim for what has happened. That, in legal and practical terms, is what a reparation order means.
Clause 69(1) defines a reparation order as having the meaning given to it in Clause 54(2), which does not really help but I am grateful to the officials for telling me. That is the position in relation to what it means in practice. I again emphasise to the noble Lord, Lord McNally, that it is intended to make the offender face up to what he has done.
As to which orders it should be combined with, Clause 54(4) presently indicates that it cannot be combined with a custodial sentence and a number of other sentences referred to in Clause 54(4)(b) —those being a community service order, a combination order, a supervision order, which includes requirements, an action plan order or a compensation order. Those
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sentences have been excluded because, save in relation to the custodial sentence, they have an element of, using the word loosely, reparation in them.
As for a community service order, national standards require that the element of reparation to the community be taken into account in formulating what community service the offender has to do. That would overlap with the proposed reparation order. A combination order includes in part a community service order. A supervision order with requirements can include requirements for reparation. An action plan order can include provision for reparation. A compensation order, which is the one that the noble Viscount, Lord Tenby, mentioned, is in effect reparation in financial terms.
In considering what compensation order to make, the court is obliged to take into account the level and the nature of the victim's suffering. In those circumstances, if you made both a reparation order and a compensation order you would potentially be punishing the offender twice for the same thing. In those circumstances it is inappropriate to permit the court to make both a reparation order and a compensation order.
As to custodial sentences, it is inappropriate to combine reparation with somebody who is going to prison, and there has been no real dispute about that. That is the thinking behind the way that the combinations are dealt with and that deals with all the points that have been made. I invite noble Lords to withdraw their amendments.
Lord Henley: I am grateful to the noble and learned Lord for his explanation and for referring us to Clause 69(1) with its useful definition of reparation order.
I have one further question. Am I right in thinking that a reparation order could not require financial compensation? A compensation order is something different and refers to financial compensation. A reparation order is all the other things the noble and learned Lord referred to, but not financial compensation.
Lord Falconer of Thoroton: Yes, the noble Lord is right.
Amendment, by leave, withdrawn.
[Amendments Nos. 235ZA and 235A not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 235B:
Page 43, line 8, at end insert ("; and
() humiliating or degrading treatment of the offender.").
The noble Baroness said: I shall address the amendment in the name of my noble friend. The amendment seeks to add to the conditions in relation to reparation orders, which already require that they should avoid conflicting with the young person's religious belief, work, or schooling, a further requirement that whatever is required in the reparation order should not be humiliating or degrading.
One of the points of reparation schemes is that they should be agreed with the victim of an offence. There is a danger that in his or her desire perhaps for revenge,

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the victim may demand some aspect of work or task which the offender may find humiliating or degrading. It tends to be counter-productive if people are humiliated or degraded. They are more likely to become sullen and resentful and to commit further offences. It is not likely to be reparative, restorative or helpful in rehabilitating them. This is intended to be an additional condition which would restrict the types of reparation order that might be made. It is intended that reparation orders should essentially be constructive measures for the victim and the offender. I beg to move.
The Earl of Mar and Kellie: I support the amendment. The noble Baroness reminded us that in order that a reparation order will work, especially one related to doing work for the victim, there must be a double coincidence. There must be an offender who is suited to reparation and a victim who is also suited to reparation. By that I mean someone who can discuss with the offender what he or she has done dispassionately, and with no retribution involved.
Lord Falconer of Thoroton: I am grateful for the two contributions that have been made on the amendment. I agree with my noble friend that the purpose of a reparation order is a constructive one, not just for the victim but for the offender. In those circumstances, I can assure her that the amendment is unnecessary. If the offender's experience were humiliating or degrading, it plainly would not be a constructive one.
As I have said, the clearly stated purpose of the order is reparation: the chance to repair the damage done, both physical and mental. Not only will the victim be helped to understand the circumstances which led to the commission of the crime, and to receive some recompense for his suffering, the young person will be faced with the consequences of his actions, and the effect of those actions, and be assisted in his reintegration into society. If both those aims are to be achieved, there is plainly no room for humiliating or degrading treatment. I hope that if that is the base for the reparation order, my noble friend will see that there is no need for the amendment.
Viscount Colville of Culross: Before the noble Baroness decides what she will do about the amendment, I imagine that there would be a right of appeal against the making of a reparation order, and that if the person against whom it was made considered that it was humiliating or degrading, one of the matters that could be raised would be a failure to comply with the European convention. That will be a good ground of appeal as soon as the Bill that is going through Parliament takes effect. In any event, I should have thought that it would be a ground for doing something else on appeal, rather than imposing humiliating or degrading orders upon someone who came up from a lower court with such a provision.
Lord Falconer of Thoroton: I am not sure whether it would be a breach of the European convention, but it would be contrary to the purpose of a reparation order.
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If anyone had imposed upon them a reparation order that a higher court believed was humiliating or degrading, then such an order should be set aside.
The Earl of Mar and Kellie: Is a reparation order a new device solely for young offenders and not adults?
Lord Falconer of Thoroton: Yes, it is primarily for young offenders.
Baroness Hilton of Eggardon: Before withdrawing the amendment, I wish to ask the Minister whether there will be guidance incorporating his welcoming words about the intention of the reparation order. Will his words be sufficient, or will there be Home Office guidance?
Lord Falconer of Thoroton: There will be Home Office guidance and I expect that to reflect what I have said.
Baroness Hilton of Eggardon: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 agreed to.
10.45 p.m.
Clause 55 [Reparation orders: supplemental]:
Lord McNally Lord McNally moved Amendment No. 236:
Page 43, line 36, after ("comply") insert (", without reasonable excuse,").
The noble Lord said: Amendments Nos. 236 and 237 are intended to make the Bill have a little less machismo and a little more common sense. In that spirit, I beg to move.
Lord Falconer of Thoroton: Subsection (2) of Clause 55 and subsection (2) of Clause 57 place several requirements on the court which it must fulfil before it imposes a reparation order or an action plan order on a young offender. One of these is that the court must explain to the young offender what may happen if he should fail to comply with any of the requirements of the order. The amendment proposes that in addition to all of the requirements already in the Bill, the court should be required to advise the young offender of the possible consequences if he should fail to comply "without reasonable excuse". The amendment would add the words, "without reasonable excuse".
We believe that such amendments would add nothing of real value to the clauses as currently drafted. Failure to comply with the requirements of reparation and action plan orders are dealt with in Schedule 4 to the Bill. Paragraph 3 indicates that a breach of proceedings would be brought before the court by the responsible officer whose duty it is to supervise the reparation required by a reparation order or the action required by an action plan order. That responsible officer will be acquainted with the young offender and his difficulties and can reasonably be expected to use his discretion

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when deciding whether to bring breach proceedings before the court. Breach proceedings in community sentences are normally a matter of last resort.
If there is a reasonable excuse for the young offender not to have complied with either the reparation order or the action plan order, we would expect that the responsible officer would not regard it as appropriate to bring the matter back before a court. But even if that were the position and, contrary to expectations, the responsible officer did bring the matter back to court when there was a reasonable excuse, one of the options open to the court if there is a failure to comply with either orders is to make no order. Obviously, that is the appropriate action when it has concluded that there was a reasonable excuse.
In the light of those two safeguards—namely, the responsible officer and the power of the court to make no order if satisfied, for example, that there was a reasonable excuse—it seems to us that there is no need to include in the explanations given to the young offender the words, "without reasonable excuse", when explaining the effects of the reparation order and the action plan order. Indeed, there is a lot to be said for not including that. I hope that the noble Lord is reassured by that explanation and I invite him to withdraw his amendment.
Lord McNally: With such a reassurance, I have no other option. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 agreed to.
Schedule 4 [Enforcement etc. of reparation and action plan orders]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 236A:
Page 90. line 30, after ("custody") insert ("or local authority accommodation").
The noble Viscount said: The noble Lord, Lord Williams, knows that I am very concerned about the decreasing age of young offenders who unfortunately are coming before the courts. In a letter a little while ago, I gave him a particularly severe example of the failure of the system to be able to contain a boy who was hardly 14 and was in the process of committing an enormous number of dwelling-house burglaries.
I am very much looking forward to the opportunity of being able to use reparation and action plan orders, although I dare say they will be used more by the magistrates' courts and the youth courts than by the Crown Court. However, in Schedule 4, paragraph 3(2)(c) provision is made for when such an order made by the Crown Court unfortunately fails. If it fails, the first thing that happens is that the offender is taken in front of the magistrates' court or possibly the youth court.
The youth court, of course, is capable of committing a person under the age of 15 or 16 to secure local authority accommodation. No other court can do so. Neither the magistrates nor the Crown Court can do that. There is a hiatus here which is highlighted in the
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wording of that paragraph because the only alternatives are custody, which is not possible for the very young, or a release on bail which very often, in the circumstances of a failure, will lead to the young offender absconding and not turning up at the Crown Court to be dealt with.
What do the Government have to offer? It is a problem. It may not affect that many people but the problem is ever-growing and the offences which are committed are ever-increasing in severity. The victims are suffering more and more. I hope that I can trail this matter this evening. We shall return to this matter when we reach Clause 80. But if the noble Lord can offer me any comfort as regards this predicament, I should be very grateful. I beg to move.
Lord Williams of Mostyn: I am most grateful to the noble Viscount not only for his approach this evening but for the letters that he has sent to me over the months.
I can be helpful. As the noble Viscount rightly observed, Schedule 4 deals with arrangements which govern enforcement, variation, discharge and breach of the new reparation and action plan orders. One of those arrangements is that when a young person is brought before the youth court for breach of requirements of the reparation or action plan order made in the Crown Court, the youth court may either commit him in custody or release him on bail, as the noble Viscount indicated.
The youth court has the power, by virtue of Section 23 of the Children and Young Persons Act 1969, to remand to local authority accommodation. Indeed, that Act obliges the court, unless the offender is a male who has reached the age of 15 and meets certain strict criteria, to remand or commit the offender to local authority accommodation. Therefore, I believe that the noble Viscount's amendment would wish to bring about a power which already exists by virtue of Section 23 of the 1969 Act.
Viscount Colville of Culross: I am obliged to the noble Lord. The problem is that the youth court will not do that if it is confronted by a local authority which says that it cannot afford to pay. It is the local authority that provides the secure accommodation and the youth court has to co-operate with that local authority and for some reason, there never seems to be enough money—as there never is for anything—and that is where the problem arises. The youth court simply does not commit. It releases the young offender on bail and then the trouble occurs.
However, perhaps encouraged by what the noble Lord, Lord Williams, has said, more youth courts will use that compulsory power and will not try to find their way out of it which, I am afraid, is not happening at the moment. Perhaps the word can be spread abroad. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 agreed to.
Clause 56 agreed to.
Clause 57 [Action plan orders: supplemental]:
[Amendment No. 237 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 237A:
Page 46, line 2, leave out ("21") and insert ("42").
The noble Baroness said: Clause 57 gives details of the procedures which are to be followed when making action plan orders. After the court has made such an order subsection (3)(a) allows the court to fix a further hearing within 21 days of making the action plan order, at which point it is intended that the court will hear a review of the effectiveness of the order to date and make any necessary variations to the order. The Notes on Clauses state that this is to provide the court with an early opportunity to check progress, modify any requirements if this is desirable, and suggest and encourage the young person in completing the order. I can well understand the desirability of such an early opportunity for the court, but I can foresee difficulties in making it work.
As will be obvious to the Committee, this is a probing amendment. I would like the Minister to tell the Committee why the Government have fixed on the period of 21 days. What did they take into account in so doing? Are they sure that the responsible officer will be able to make an effective report at such an early stage? Will he or she be able to judge whether the young person has been keeping to the terms of the order in an acceptable manner, and if he has not been keeping to it, whether he has acceptable reasons for so doing, or not so doing? Will the responsible officer in practice even be able to provide the court with a report so quickly? Is it physically possible to do so? I am aware that it is common to have a waiting period of three weeks in courts before pre-sentence reports can be prepared and presented to courts. Or, is this method intended to be more in the nature of a stand-down report which can be given orally to the court? If so, would this really be acceptable and would it mean that the directing officer would have to give the report himself or herself, and not a deputy? That would make it difficult to schedule the hearing of the report. I should be grateful if the Minister could address those points. I beg to move.
Lord Falconer of Thoroton: I am grateful to the noble Baroness for giving me an opportunity to explain why the period is 21 days. We are extremely keen that action plan orders should be effective. That means they should be completed by the offender as efficiently and effectively as possible. One of the important elements in an action plan order is that they should affect the offender as quickly as possible by reference to the timing of the offence.
Moreover, the action plan order, as defined in the Bill, can last only for a period of three months. It is therefore imperative that any problems surrounding the requirements of the action plan are ironed out as soon as possible. A vehicle for achieving this is the further hearing, which Clause 57(3)(a) stipulates must take place not more than 21 days after the making of the action plan order itself. I must stress that this is not a duty of the court, but simply a power available to it; no court will be obliged to fix this further hearing if it feels such a hearing to be unnecessary.
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The proposed amendment would have the effect of doubling this period of time to 42 days. To allow such an amendment would run a considerable risk of undermining the usefulness of the action plan order to a great degree. Six weeks is almost half of the total duration of the order itself; much too long to wait for the court to discover that the order is not working as successfully as it had anticipated. If, after an intensive three month disposal, one discovers half way into it that it is not working, one has lost the point of it to a large extent.
The noble Baroness may well have been motivated, as her speech indicated, by concern that the action plan may not be fully up and running after so short a period as 21 days. That is the very reason why that period must not be extended. In a short but intensive disposal such as this one, it is essential that the requirements of the order should be put into successful operation at the earliest opportunity. There is no scope here for the requirements to reach full strength slowly several weeks after the order has been made. That would destroy the intensive nature of the action plan.
With the improved co-operation and efficiency of the youth justice system and its agencies that will be delivered by this Government's plans, there should be no reason why the requirements of an action plan should not be put into effect very shortly after the order is made, thereby allowing the responsible officer to make any report that is required within the 21-day timeframe.
I should add that in the consultation document, Tackling Youth Crime, published in September last year, the proposal was a 14-day deadline for that further hearing. It was in response to replies to that document that we extended it to 21 days. That is the thinking behind the 21 -day time frame; if it is extended to 42 days, effectively the benefit of an intensive disposal such as this is lost. So we think it appropriate to keep it at 21 days.
11 p.m.
Baroness Anelay of St. Johns: I am grateful to the Minister for that response and his explanation of the reasoning behind the 21 days and wanting to achieve an accelerated system of putting the order into procedure and also checking on it.
I am not quite as sanguine as he in relation to the ability to prepare and present reports within such a short timespan. The Minister referred to the fact that that would be dependent upon the overall youth justice system being speeded up considerably in its operation. I still have residual concerns—for example, a court might feel disinclined to order a further hearing within the 21 days because it is aware of local difficulties in staffing, particularly at peak periods of holidays or sickness, which would mean people not feeling they could get the report up and running. That could completely stymie the whole system. It might not be possible to achieve the early report to which the Minister referred. However, I shall read carefully in Hansard the assurances he has given. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 agreed to.
Clause 58 agreed to.
Clause 59 [Breach of requirements in supervision orders]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 237B:
Page 47, line 17, after ("court") insert ("which stated in open court that it was making the order instead of a custodial sentence").
The noble Baroness said: With the leave of the Committee I shall address the amendment in the name of my noble friend Lady David. It has always been an important principle that breaches of a supervision order attract a custodial sentence only where that was warranted by the original offence for which the supervision order was made, and that the custodial sentence is not for the breach but for the original offence and where the supervision has broken down.
This amendment seeks to restore that situation, so that a custodial sentence can be awarded only if it has been stated in open court that the magistrates were making the supervision order instead of a custodial sentence—so that it has always been clear to offenders that a custodial sentence is hanging over them if they fail to keep to the conditions of the supervision order, and in all fairness they have understood that it was the original offence which attracted the custodial sentence and not the subsequent breach. The amendment seeks to re-establish that situation, to ensure that neither the offender nor the court is under any illusion as to the reason for effecting the custodial sentence. I beg to move.
Lord Williams of Mostyn: The point of Clause 59 is to make simple the over-complex arrangements for dealing with breaches of supervision orders. This amendment would require the courts to state every time a supervision order was imposed instead of custody. The consequence would be that if the original court had not made such a statement or had not been considering custody, the court would not be able to re-sentence for the original offence following a breach of supervision requirements.
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Therefore, the court's ability to impose custody on an offender who had breached supervision requirements would be restricted unless the court stated that the original supervision order was imposed as an alternative to custody. It is that kind of restrictive condition that Clause 59 seeks to remove.
We believe that the requirement which is proposed in the amendment is not necessary. Courts, in re-sentencing for the original offence—I entirely agree with the noble Baroness that that is what they sentence for—will have to consider the seriousness of the original offence. They are not able to impose custody unless the original offence was serious enough to justify custody, in which case the supervision order was de facto imposed as an alternative to custody.
The amendment would have a further unfortunate effect. If the original court overlooks the need to state that the supervision order was imposed instead of custody, the court cannot re-sentence for the original offence if the supervision order is subsequently breached. Therefore, the amendment will hamstring the courts in less serious cases where they might want to impose a different community sentence for the original offence following a breach, but could not do so, if the amendment became law, because the original supervision order was not declared to have been imposed as an alternative to custody.
Baroness Hilton of Eggardon: I find that rather a confusing response. It does not seem to me that it would be impossible to impose some sentence other than custody for the breach if no statement about custody had been made in the first place. It sounded to me rather as though the Minister was producing a circular argument, but I will read carefully what he said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 59 agreed to.
Lord Carter: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at six minutes past eleven o'clock.