Lords Sitting of 3 March 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 Lichfield.
Lord Dunleath—Sat first in Parliament after the death of his father.
Lord Hives—Sat first in Parliament after the death of his uncle.
Lord Bolton—Took the Oath.

European Union: Accession Process
The Earl of Carlisleasked Her Majesty's Government:
What measures are being undertaken to help the applicant nations of central and eastern Europe, in particular Latvia and Lithuania, which are not in the first wave of accession negotiations, to prepare for entry to the European Union at the earliest opportunity.
Lord Whitty: My Lords, the Luxembourg European Council took the necessary decisions to ensure that the enlargement process was all-inclusive. As part of that, the accession process will begin on 30th March with all 10 central European applicants.
The Luxembourg European Council also decided on measures to reinforce the applicants' preparations for accession. An enhanced pre-accession strategy, centring on accession partnerships and increased pre-accession aid, accompanied by an analytical study of the EU acquis, will help Latvia and Lithuania fulfil the Copenhagen criteria and come into line with EU legislation. The London European Conference on 12th March is another important element on inter-governmental co-operation within that process.
The Earl of Carlisle: My Lords, I thank the Minister for that helpful Answer. Is he aware that the right honourable Member for Livingston in another place presided over the European Union Association in Brussels on 23rd February? What, if anything, was achieved at that meeting? Will Her Majesty's Government utilise the association to ensure that the nations not in the first wave have a good opportunity of joining the EU before the end of this decade?
Lord Whitty: My Lords, I am aware of the meeting. It is part of the ongoing process of engaging the civic society in the applicant countries. The Luxembourg summit also ensured that aid would be geared to those countries in the greatest need. In most cases, those not in the first wave entering formal negotiations will receive benefit from that decision.
Lord Stoddart of Swindon: My Lords, does my noble friend agree that one of the great bars to entry to
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the EU of Latvia and Lithuania and many other countries is the continued operation of the absurd common agricultural policy? If we want those countries to join the European Union, would it not be as well to get rid of that ridiculous policy as soon as possible?
Lord Whitty: My Lords, it is part of the Government's intent drastically to reform the CAP. That requires detailed negotiations with existing members and further discussion of how the policy would apply to potential new candidates joining the European Union. In that context, it is a problem if it remains unreformed.
Baroness Rawlings: My Lords, despite the Luxembourg European Council, mentioned by the Minister, and in the light of the recent failure of the Amsterdam conference to prepare satisfactorily for enlargement of the EU, do the Government agree with Commission proposals under Agenda 2000 to hold another IGC? What effect would that have on the likely timetable of future EU enlargement to enable the smooth admission of eastern European countries, in particular Lithuania and Bulgaria?
Lord Whitty: My Lords, the Amsterdam Treaty achieved a fair amount in preparation for enlargement. However, a number of institutional issues were left over which must be addressed. The Government believe that that will not involve a major inter-governmental conference the size of Amsterdam. We believe that those institutional issues can be resolved in time and in parallel with the probably long and difficult negotiations for accession, even of the first countries to join.
Lord Mackie of Benshie: My Lords, will the Minister confirm that the Government intend to reform the CAP and not abolish it?
Lord Whitty: My Lords, the noble Lord will find that I did not repeat precisely the words of my noble friend Lord Stoddart. We intend to reform the CAP, but we require agreement to do so. The imperative for reform is clear in the enlargement context and in other areas.
Lord Bruce of Donington: My Lords, will the Minister seek to dispel the note of optimism in the Question, which presupposes that the European Union in its present form will be in existence when the countries concerned will be joining? Will the Minister induce his noble friends to take a closer look at the implications of the Amsterdam and Maastricht treaties, which by this time they might have had the opportunity to examine?
Lord Whitty: My Lords, I never wish to discourage optimism; indeed, I have for some time been attempting to dispel the pessimism of my noble friend Lord Bruce about such matters, but without any success whatever. I suspect that these issues will be returned to in our debates in Committee on Amsterdam, which will take place in a few days' time.
Lord Renton: My Lords, is the Minister aware that the larger the Community becomes the less possible it

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is to harmonise the laws of all the countries involved? Therefore, has not the time come for a complete revision of the Rome Treaty, the original proposals of which may have suited the first six countries but are now utterly impossible to implement?
Lord Whitty: No, my Lords; I do not accept that view. Indeed, one of the great economic and social benefits of enlargement will be the creation of a single market spanning the whole of Europe. Those regulations have already been adopted to a large extent in those countries which are seeking membership. The fulfilment of the single market across eastern and western Europe will be the greatest achievement of the European Union, and the greatest guarantee of prosperity both east and west.
Lord Pearson of Rannoch: My Lords, in that case, can the Minister expand on the answer that he gave to his noble friend Lord Stoddart of Swindon in which he referred to detailed discussions with existing members? Can the noble Lord tell the House exactly how many votes are required to carry reform of the common agricultural policy, and how many votes the Government are, at present, confident of securing towards that noble aim?
Lord Whitty: My Lords, there is already a proposition on the table from the Commission for partial reform of the CAP, which we strongly support. That is the first step. There appears to be majority support for that position. However, the more radical reform that we would like to see will require some persuasion. We do not require unanimity but we do require a qualified majority in most aspects of the agricultural policy.
Lord Monson: My Lords, given that the lavish transfer payments enjoyed by the Republic of Ireland, Greece, Spain and Portugal will not be available to the Baltic States, or other applicant countries, because the money simply is not there, is the Minister certain that it is in the genuine interests of Latvia, Lithuania, and so on, to join an organisation so bureaucratic, over-regulated and interfering as the EU? Would they not be much better off with a genuine advantageous free trade agreement instead?
Lord Whitty: My Lords, without accepting for one moment the description of the EU advanced by the noble Lord, I can tell the House that I believe this to be a matter for the peoples of those countries to assess. As I understand it, the overwhelming view in those countries is that they wish to join the European Union. Therefore, we should help to develop their prosperity and their civic institutions to that end.

Far Eastern Economic Problems: Student Support
2.48 p.m.
Lord Dean of Beswickasked Her Majesty's Government:
Whether recent financial difficulties in certain Far Eastern countries may reduce the number of students from those countries who undertake further education in the UK, and whether this may in turn cause financial difficulties for some UK universities and other higher education establishments.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, it is difficult to predict exactly what the impact of the various currency collapses in South-East Asia will be on the numbers of students coming to the UK, though there is clearly cause for concern. The Government applaud the substantial efforts made by higher education institutions to alleviate the hardship of many of the students affected, enabling them to continue to study here. The Higher Education Funding Council for England is looking at the potential effects on individual universities and higher education colleges and will offer advice to any who might need it.
Lord Dean of Beswick: My Lords, I am grateful to my noble friend the Minister for that reply. However, is she aware that I have received some information from the Council of Vice-Chancellors and Principals which indicates that, if there were a total withdrawal of those students, the amount of money lost would be as high as £300 million? Further, another £300 million could be lost that these students normally spend while they are over here. These are serious figures. Will the Minister do her best to make sure that the Government keep this situation under review and take any action that may be required?
Baroness Blackstone: My Lords, I can confirm that my noble friend's figures are quite correct. It is estimated that about £300 million comes to universities direct from the fees paid by students from these countries. They probably inject approximately another £300 million indirectly into the UK economy. They constitute about 11 per cent. of the total number of overseas students. The Government are closely monitoring this matter and are working with the British Council to establish exactly what the extent of the problem may be next year and what can be done about it. Meanwhile the Government very much applaud the efforts of higher education institutions in helping existing overseas students from this region to deal with any hardship.
Lord Quirk: My Lords, does not the Minister agree that the 50,000 students from the region, the greatest number of whom are from Malaysia and Hong Kong, who come to this country annually are an important resource not only to higher education which benefits, as the Minister said, by £300 million a year—Imperial College receives £9 million a year out of that—but also

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to British industry as a whole, largely because of the networking that students get involved in during their years here'? Would it not be a good idea and in their interests for British firms which have major involvement in the region to set up bursaries for as long as the emergency continues so that we can maintain this flow of students to this country?
Baroness Blackstone: My Lords, the Government regard overseas students in our universities as an important asset and one that we want to maintain. It is, of course, up to companies of the kind that the noble Lord, Lord Quirk, describes to decide whether they want to develop sponsorships or scholarships of this kind. I believe that some already do. The Government would very much welcome more of them establishing programmes of this kind. Meanwhile the Government, through the Chevening scholarship scheme, the Commonwealth scholarship scheme, and scholarships run by the British Council, offer awards to a substantial number of overseas students, including large numbers from this region.
Lord Beloff: My Lords, does the Minister agree that there is a particular problem, not so much with the Far East as a whole, but with regard to Malaysia? I have information that the number of Malaysian students coming to this country is falling rapidly. Does not this suggest that we made a mistake when we classed Commonwealth students as general overseas students while European students pay lesser fees? Would not the simplest thing be to treat Malaysians as honorary Europeans from the point of view of fees?
Baroness Blackstone: My Lords, the decision to change the fees paid by overseas students was made by the previous government some years ago. The noble Lord, Lord Beloff, is absolutely right that the fall in the number of students from this region is especially pronounced in Malaysia where there has been a drop in applications this year of about 25 per cent. I am, however, glad to say that for most of the other countries the number of applications is holding up, although, of course, applications may not necessarily result in entrants to our universities later this year. As regards treating Malaysian students as Europeans, I am not sure that Malaysian students would welcome that.
Lord Monkswell: My Lords, a figure of £300 million of revenue that universities may lose has been mentioned. Can my noble friend advise the House what proportion that is of total university revenue income?
Baroness Blackstone: My Lords, there is no suggestion that all of the £300 million that students from this region are paying in fees will be lost. That is the total sum they are currently paying. The Government and the universities hope that applications will continue to be submitted and that the eventual fall will be relatively small. As I just said, I am glad to say that the
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number of applications from most of the countries in the region is holding up. The £300 million is a tiny percentage of the total income of our universities.
Baroness Blatch: My Lords, does not the noble Baroness agree that the problem of losing students from the South-East Asian countries is compounded by the overall decline in applications of home students? Therefore the problems for universities are much greater. Will the noble Baroness confirm, or deny, that the £165 million extra that will be allocated to higher education in 1998–99 is permanent year on year funding that is additional to the base funding for higher education?
Baroness Blackstone: My Lords, the second part of the noble Baroness's question does not seem to bear much relation to what is on the Order Paper. The £165 million extra funding that has been found by the Government for next year arises directly from the changes in the funding of students that the Government are introducing. I cannot say what will happen in years after that because of the comprehensive spending review.
Lord Thomson of Monifieth: My Lords, will the Minister take some comfort from the fact that I seem to recall that over 30 years there have been recurrent occasions when everyone has prophesied woe as regards students coming from the Far East to this country—sometimes that was the result of the policies of the government of the day and now the fall in numbers is the result of financial circumstances in the Far East—but in each case there has been an extraordinary resilience on the part of the students, the political fears have proved unfounded and the attractions of British higher education have remained supreme?
Baroness Blackstone: My Lords, I entirely agree with everything that the noble Lord. Lord Thomson of Monifieth, has just said.

Asylum Seekers: Welfare
2.56 p.m.
Lord Evans of Parksideasked Her Majesty's Government:
Whether the proposal of Westminster City Council to move asylum seekers from London to Merseyside accords with their policy.
The Minister of State, Department of Health (Baroness Jay of Paddington): My Lords, social services authorities in London, as indeed elsewhere, are seeking to discharge their duties towards asylum seekers as they are currently defined in the most cost-effective and appropriate way. How this is done is, of course, a matter for individual authorities. We would, however, expect those seeking to move asylum seekers to consider very carefully the consequences of doing this, including the impact on the asylum seekers themselves and on the existing communities in the receiving area, and to seek

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the views of the local authority concerned. As I said in answer to another Starred Question on asylum seekers in your Lordships' House last week, we do not believe that the present system is working well. That is why the Government are reassessing the whole process, including the way that welfare support is delivered to asylum seekers.
Lord Evans of Parkside: My Lords, I thank my noble friend for that reply. Does she accept that a number of issues are raised by the proposal of Westminster City Council to relocate asylum seekers on Merseyside, as reported in the Evening Standard? Is my noble friend aware that Merseyside has probably the highest male unemployment in Great Britain and that if there is imported competition for the limited number of jobs available it may cause some friction with local jobseekers? Will the refugees' applications for asylum be speeded up or retarded by living in Merseyside rather than in London? More importantly, will my noble friend give a categorical assurance that no Merseyside local authority will be called upon to make any contribution towards the cost of the imported asylum seekers, no matter how long those asylum seekers remain on Merseyside?
Baroness Jay of Paddington: My Lords, all of the points that my noble friend has raised reflect precisely the considerable concern that is felt about this problem by the asylum seekers themselves and by the relevant local authorities. I assure my noble friend that we are aware of the potential for difficulties on Merseyside in terms of employment. That is why Westminster Council consulted carefully with the local authorities on Merseyside before deciding to take this step. As I am sure my noble friend is aware, the step was taken because of the large numbers involved. Suitable accommodation in London is now scarce. I assure my noble friend that the costs will continue to be borne by the London local authority. He will be as aware as I that a large number of asylum requests are pending. The Government are seeking to speed up that process.
The Lord Bishop of Lichfield: My Lords, is the Minister aware that local authorities near Gatwick airport estimate that expenditure on unaccompanied children seeking asylum is approximately £1.2 million a year? If so, is it not time for the Government to decide that the National Assistance Act will not be used in the long term for providing support to asylum seekers but that a return to a realistic benefit system is both cheaper and easier to administer?
Baroness Jay of Paddington: My Lords, we are very much aware of the problem of unaccompanied children. As the right reverend Prelate says, it is a problem in areas around airports and seaports in this country, and is growing. It is very much a focus of the review being undertaken. The review is comprehensive and will deal with the subject of unaccompanied children among the other relevant issues.
Baroness Ludford: My Lords, the Question refers to government policy. The Minister replied that it was up
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to local authorities. It is precisely the absence of a national policy after 10 months in office which so concerns many of us. We are anxious to hear the results of the review. We believe that it should be a national responsibility to welcome and support asylum seekers. Is the noble Baroness aware that the Refugee Council is worried that one result of the current situation is an adverse impact on race relations? That is of great concern to many inner London authorities where the excess costs to local authorities are between £0.5 million and £1 million a year. When budgets are being cut across the board the situation is not helpful to race relations. The Government are undermining the position.
Baroness Jay of Paddington: My Lords, as I said in answer to previous questions, the Government are at least as concerned as any Member of your Lordships' House about difficulties which many local authorities face on this issue. That is why at central government level, led by my noble and right honourable friends from the Home Office, the Government are addressing the matter as a central policy issue. With her roots and background in local government, I am sure that the noble Baroness would not wish central government to override the autonomous decisions of local authorities on this matter.
Lord Campbell of Alloway: My Lords, is the Minister aware that she gave no effective reply to the question of the right reverend Prelate? It is a most interesting and constructive suggestion that I have not heard before. Would the noble Baroness care to reply to it?
Baroness Jay of Paddington: My Lords, I apologise to the noble Lord if he feels that I did not reply specifically. The reason that I did not do so was precisely because the issue of the children's grant, the levels of which have not been fixed for next year, is subject to the general consideration on the national strategy which the noble Baroness and other noble Lords have rightly demanded should be forthcoming.
Lord Avebury: My Lords, is the Minister aware that Westminster is not the only London borough which has had to decant asylum seekers to other parts of the country? Lambeth has had to do the same for reasons of cost effectiveness. Even so, in 1997–98 the council taxpayers of Lambeth are having to foot a bill of no less than £1 million for looking after asylum seekers. Does the noble Baroness not consider that it is grossly unfair that the residents in a borough which is home to many deprived people should have to bear those additional costs?
Baroness Jay of Paddington: My Lords, yes, and that is precisely why we have said that the National Assistance Act, induced by court action in previous years, is not a suitable way of dealing with the problem. That is precisely why we are addressing the issue. One interesting result of moving asylum seekers from the London boroughs is that I understand they tend to

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disappear. That may be a way—I do not mean this frivolously—by which local authorities seek to avoid some of their responsibilities. For example, I understand that when Westminster tried to move a large number of asylum seekers to Great Yarmouth where there was a certain amount of reasonable accommodation, it being a seaside resort with only seasonal pressures, 74 per cent. of the asylum seekers simply disappeared. I am sure that the noble Lord would not wish that to be adopted as a policy.

Scottish Agricultural Industry
3.4 p.m.
Lord Selkirk of Douglasasked Her Majesty's Government:
What steps they are taking to reverse the decline in farm income in Scotland.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, the Government have made it clear that they are committed to supporting a viable agricultural industry and have taken a number of important steps to help alleviate the current problems.
The Government paid £480 million in direct subsidies to Scottish farmers in 1997, an all-time record. We recently announced a further package of aid for the beef and sheep sectors which are the hardest hit. They are set to receive in Scotland a further £24 million.
In addition, the Government recently announced that charges for implementing specified risk material controls from 1st April 1998 will not be recovered from the industry. Also start-up costs for the new computerised cattle traceability system and running costs during its first full year of operation will be paid for by the Government. These two measures will save the UK livestock industry some £70 million in total.
The ban on British beef exports represents a serious handicap to our producers and we are taking all possible steps to have this ban lifted as early as possible.
Looking to the longer term, the Government's objective is for farmers to gain a larger proportion of their income from the marketplace, with a consequential reduction in centrally-funded support.
Lord Selkirk of Douglas: My Lords, I thank the Minister for his reply. I wish to declare a family interest in farming. Is the noble Lord aware that there is on average a 34 per cent. drop in farm incomes in Scotland? Will the noble Lord do his best to ensure that systems of regulation and support are as supportive to farmers in Britain as comparable systems elsewhere in Europe?
Lord Sewel: My Lords, the answer to the second part of the noble Lord's question is, yes. The noble Lord mentions the figure of 34 per cent. I do not dispute that figure but perhaps I may put it in context. Incomes today are higher than they were in the late 1980s and early
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1990s. Perhaps I may give the noble Lord one specific figure. Between 1990 and 1995 aggregate farm incomes in Scotland increased in real terms by 308 per cent.
Lord Mackie of Benshie: My Lords, is the Minister aware that the paradise he describes does not exist and that the figures for Scotland will be worse than the 34 per cent. drop this year? If the noble Lord wishes to help the industry, surely the Government should have taken up the £940 million in January, as they could have done. The figure from the European Union has now dropped to £642 million. Why has that money not been taken up as it has been by other countries in Europe?
Lord Sewel: My Lords, in addressing the problem of the beef and sheep sectors, we put forward support for £85 million on a UK level which virtually reaches the ceiling available under the agri-monetary compensation system. So we have compensated the most hard hit sector for the adverse effects of currency appreciation.
I should point out to the noble Lord that the £940 million that is often referred to is not free money in any sense of the word. Fifty per cent. of that would have to be funded entirely from the UK taxpayer and, as a result of the Fontainebleau Agreement, of the remaining 50 per cent. 71 per cent. would have to be funded by the UK taxpayer.
The Countess of Mar: My Lords, as with all statistics, does it not depend how far back one goes? Does the Minister agree that between the 1970s and 1980s farm incomes fell by half, and by half again during the 1980s? They were restored to some extent after the reform of the CAP in 1992 and have now begun to fall again because of the problems with the exchange rate and the green pound.
A noble Lord: The question is too long.
The Countess of Mar: My Lords, does the Minister agree that it is only by increasing their efficiency and output, and by reducing labour, that farmers have survived this far? They are now down to the bone. Does the noble Lord appreciate how important it is that some help is given?
Lord Sewel: My Lords, perhaps I may point out that, taking a longer term perspective, aggregate income last year was still higher than aggregate income in 14 out of the past 25 years. I would also point out that the support given to agriculture in Scotland, at £480 million, is equivalent to the total budget of Scottish Enterprise and Highlands and Islands Enterprise, and represents support running at £14 per week for the average family in Scotland.
The Lord Privy Seal (Lord Richard): My Lords, perhaps the House will allow me a few words. It seems to me—and I grant that it is only an impression—that the length of supplementary questions is somewhat on the increase. If it is indeed on the increase, I am sure your Lordships realise that it tempts Ministers into

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giving somewhat lengthy replies. I wonder whether I might draw the position to the attention of the House and hope that, next week, I will be able to rise and say how short the replies are.

National Lottery Bill [H.L.]
Lord McIntosh of Haringey: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 7,

Schedule 2,

Clauses 8 to 10,

Schedule 3,

Clauses 11 to 23,

Schedule 4,

Clause 24,

Schedule 5,

Clause 25.—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

Crime and Disorder Bill [H.L.]
3.10 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 60 [Detention and training orders]:
Baroness David Baroness David moved Amendment No. 237C:
Page 48, line 6, leave out ("child or").
The noble Baroness said: In speaking to this amendment I shall also speak to Amendments Nos. 238, 239, 240 and 242. Amendments Nos. 237C, 239 and 240 would restrict the making of detention and training orders to offenders aged 15 and over. Amendments Nos. 238 and 242 would restrict detention and training orders to those aged 12 and over.
Clauses 60 to 65 introduce a new detention and training order for 10 to 17 year-olds. Initially it will be introduced for 12 to 17 year-olds, but there will be a power for the Home Secretary to extend it to 10 or 11 year-olds by laying an order before Parliament at a later date. After sentence, the offender could be accommodated in Prison Service custody, local authority secure accommodation, a secure training centre or a youth treatment centre.
We agree that there is a strong case for rationalising the courts' present complicated powers to detain juveniles. However, we are concerned that, in the case of offenders aged under 15, giving the courts strengthened powers to order detention could produce a sharp and undesirable increase in the detention of children, most of whom would be better dealt with by supervision in the community.
At present, courts can pass sentences of detention in a young offenders institution on offenders aged 15 and over. For that age group the new sentence would simply replace the existing power. However, it would significantly increase the court's powers to detain young people under 15. Offenders aged 10 to 14 can currently be sentenced to long-term detention under Section 53 of the Children and Young Persons Act 1933 if they commit an offence carrying a maximum penalty of 14 years (or more when committed by an adult); be sentenced to a supervision order with a "residence requirement" which requires the local authority to place the young person in local authority accommodation (where necessary, secure accommodation can be used) for a specified period of up to six months; or be taken into care through civil care proceedings if they are out of control and, if necessary, held in local authority secure units. We consider that this range of powers is adequate to ensure that juveniles can be detained wherever that is genuinely necessary, and we are very concerned about widening courts' powers to detain this age group.
The courts' powers are to be extended in two phases. First, in April this year, the Government will introduce the Secure Training Order, a new custodial sentence for 12 to 14 year-olds which was part of the last Government's Criminal Justice and Public Order Act 1994; and the Detention and Training Order contained in this Bill will then supersede it.
Past experience shows that removing young people from family and community life is likely to magnify their difficulties. Not only is the normal maturing process interrupted, but reintegration back into normal life presents great difficulties and can lead to long-term problems. All forms of institutional care or custody for young offenders have high reconviction rates; 89 per cent. of juveniles leaving Prison Service custody are reconvicted within two years.
However, high reconviction rates are not restricted to Prison Service establishments: they are also common to other forms of institution. Research into the effectiveness of approved schools (and community homes with education, as they subsequently became) indicates that they increased rather than reduced the likelihood of re-offending. The 1975 edition of the Home Office Handbook, The Sentence of the Court, showed that 65 per cent. of first offenders and 78 per cent. of offenders with previous convictions who were given approved school orders were reconvicted within five years. When the characteristics of offenders were taken into account, those leaving approved schools had a reconviction rate 49 per cent. higher than would otherwise have been expected from their characteristics and records.
Even institutions which adopt constructive regimes invariably produce high reconviction rates for young people. Research studies from the late 1970s into secure units for juveniles—such as the Dartington Social Research Institute's study, Locking Up Children, published in 1978, by Spencer Millham, Roger Bullock and Kenneth Hosie (well-known names)—showed that reconviction rates were very high, even though secure units were taking younger and less delinquent children than had been the case several years previously. The Dartington unit found that boys in secure units were younger and less delinquent than in earlier years: 62 per cent. were under 14½ years of age. Yet of 587 boys released from secure units and followed up for two years, 76 per cent. of those released to the community re-offended. The majority then underwent a further spell in an institution, usually a borstal.
More recently, the Dartington Social Research Unit's study, The Experiences and Careers of Young People Leaving the Youth Treatment Centres (1989), followed up 102 young people leaving youth treatment centres between 1982 and 1985. After two years, 72 per cent. of boys released from youth treatment centres into the community have been reconvicted. The overall figure for boys and girls was 59 per cent., and after three years the proportion had risen to 73 per cent. The study found that,
"some groups are more likely to be convicted than others, for instance, persistent delinquents who had three or more convictions prior to entry".
There is no reason to believe that detention and training orders will succeed in producing low reconviction rates when similar measures in the past have markedly failed to do so.
It is particularly disturbing that the Bill gives the Home Secretary a power to extend the Detention and Training Order to children aged 10 and 11. I find that really quite horrifying. Even if their sentences are served in local authority secure accommodation, it should be remembered that such establishments hold an increasing number of young offenders aged up to 16 serving sentences of long-term detention imposed for grave crimes such as murder, manslaughter, rape and robbery. Some of these things are really horrifying, and I hope that the Minister will respond with sympathy and perhaps think of changing some of these policies. I beg to move.
The Chairman of Committees (Lord Boston of Faversham): I should point out to the Committee that as Amendments Nos. 240 and 242 are also being spoken to, if Amendment No. 240 is agreed to, I cannot call Amendments Nos. 241 to 243 inclusive.
Lord Windlesham: I wish to raise the question of the provenance of the new detention and training orders for young offenders. As far as I can see, they were not mentioned in any of the three youth justice consultation papers nor, as a result, in the tabulated responses to those consultation papers which were helpfully placed in the Library. Unless I have overlooked something—and the Minister will tell me if I have—these highly significant new orders seem to have been a late addition.
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The first public reference to a "new custodial sentence" appears in Chapter 6 of the White Paper (Cmnd. 3809), published in November 1997. That document outlines the Government's intention to introduce a novel disposal for young offenders from the very early age of 10 to the age of 17: half the sentence would be spent in custody and half under supervision in the community, with a provision for shortening or lengthening the custodial element depending on the progress made. There is a considerable element of new administrative discretion, and that alone should command attention. The orders will run from a minimum duration of four months to a maximum of two years. We are told that it is the Government's initial intention to implement these new orders only for those aged 12 to 17, but with a power to extend by order to children as young as 10 and 11.
Although the proposed new orders for detention and training have some good features—for example, I think we should welcome the focus on preventing offending—there must nevertheless be reservations about the significant extension of powers of the courts to detain and even imprison children between the ages of 12 and 15, especially if there is a possibility of a later reduction of the age to 10. I shall have more to say later about custodial confinement of young and very young offenders, but I believe it is more appropriate to do so when we reach Amendment No. 245.
Will the Minister say whether the provision was a late addition? Secondly, will he say whether there has been any consultation with the agencies that will implement the new orders, apart from raising the matter for discussion by the Youth Justice Task Force? Thirdly, will he say whether the Government will accept that great care will need to be exercised in making young people under the age of 15 subject to these orders, even if they have a record of failing to respond to previous non-custodial penalties?
The Lord Bishop of Lichfield: In rising strongly to support these amendments, particularly Amendments Nos. 239 and 240, I assure the Minister that I share the very proper concern of the Government. and of other speakers, that people of whatever age, however young, should take appropriate responsibility for their actions and that the victims and potential victims of their criminal behaviour should be protected from further harm. That is what we mean by justice, and that is clear.
However, we must be sure that the degree of responsibility that we ask children and young offenders to take is commensurate with their capacity to understand it, to bear it and then to turn it to good use. Children of that age have all their lives before them. Surely we ought not to give up on them until everything constructive has been tried.
That is necessary not only for the sake of the children. In order to protect others from the future harm which may be wreaked on them by these children, we must be sure that the punishment meted out is a punishment which will be most likely to prevent these children and young people offending again. It must be a punishment, I suggest, which seeks to discover the reasons for the offending behaviour and how they might be remedied.

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It must seek to educate, to support and even to constrain; but its purpose must also be to divert the young people from offending again.
It is interesting to note that during the 1980s there was a substantial reduction in the number of young people receiving custodial sentences but that that trend has been sharply reversed since the early 1990s. I am told by the Children's Society that, in 1996, 5,300 young offenders aged 17 or under were received into prison custody—the highest number since 1986. Yet, as I understand it, there is no evidence that the behaviour of such children and young people was significantly better in the 1980s. The difference was the way in which we punished them. We punished them with a view to their futures by what has been called "tough love", by challenging them to face up to what they had done, educating them and standing no nonsense, but making clear that we had faith in them.
Since that time there have been many projects, some provided by the Children's Society, which have worked successfully with offending children and young people to turn them away from crime. Regrettably, many of those projects, and certainly those run by the Children's Society, have had to close because funds allocated by the previous government have not been renewed. If we have not provided such opportunities for every young offender to change, we have no right to lock up him or her.
We can be sure of one thing: from the evidence, custodial sentences do not divert young people from crime. Properly constructed, rigorous diversion programmes afford a better chance of doing so, at less cost and in a way which will fully express society's responsibility towards young people.
From the conditions contained in Clause 60, it is clear that the Government recognise that particular attention needs to be paid to offending under-12s and under-15s in respect of sentencing. As the law now stands, provision exists for locking up those few for whom, by any reasonable standard, no alternative exists.
It is worth noting that the inclusion of a power to sentence young people, particularly those under the age of 12, to a custodial sentence is completely out of step with the prevalent approach in Europe, where young people under that age are not usually viewed as criminally responsible.
There are no grounds for extending the current provision in the way laid out in Clause 60. I hope that the Minister is willing to think again.
Earl of Mar and Kellie: I have put my name down to Amendment No. 242 which seeks to eliminate the use of detention and training orders for children under the age of 12. I wish to ask the Minister about the expected scale of the use of subsection (2)(b) of Clause 60.
My maiden speech during the Criminal Justice and Public Order Bill focused—non-controversially, of course—on the creation of youth training centres on a regional basis. The centres were described as prisons for 12 year-olds. We now have a measure before us which appears to create the possibility of prison for under-12s.
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I acknowledge that some children need secure accommodation. The environment of such accommodation must be of a very high standard, for these children have to be enabled to grow up in spite of being in secure accommodation. Security must be an important component in their care programme, but it must never become the dominant component. We want them to grow away from their offending behaviour rather than be confirmed in it.
3.30 p.m.
Baroness Hilton of Eggardon: My name too is attached to these amendments. I am astonished that the Government are seeking the power to gaol 10 to 12 year-olds, the sort of draconian measures we argued against so ferociously when we were discussing the Criminal Justice Bill in 1994. It saddens me to see the present Government going down the same draconian route that was pursued by the previous administration.
We tend to turn to America for examples of how to deal with offenders rather than to other parts of Europe which often have far more enlightened regimes. To add to the evidence of research provided by my noble friend Lady David, experience nearer home, in Northern Ireland, was that gaoling 12 to 15 year-olds led to a 90 per cent. reconviction rate. I really do not believe that this is an effective use of resources or a humane way of trying to secure reduced offending by young people.
There is also the danger, of course, that it is cheaper to put people into youth custody centres. The cost may be as little as £20,000 per offender per year whereas with other forms of detention—and certainly some young people do need to be kept in secure accommodation—it can rise to as much as £150,000 per place. There will therefore be pressure on courts and on local authorities to use youth custody rather than local authority places.
These financial pressures on the criminal justice system are to be deplored, particularly in relation to young people. I urge the Government to think again, particularly about seeking the power to gaol 10 to 12 year-olds which seems totally inhumane and counter-productive.
Lord Williams of Mostyn: I do not think that I disagree with any of the fundamental purposes identified by noble Lords who have spoken to these amendments. In respect of specific questions put by the noble Lord, Lord Windlesham, I entirely agree that great care will have to be exercised in deploying this power. I should like to set that in a context which will be profoundly different to what has gone before by virtue of other remedies—I use the word carefully—which we are offering in this Bill, which I think have been the general subject of approval. The noble Lord referred to consultation and asked when the DTO first appeared. It is true that the DTO was not in the first three consultation papers. It was, as he says, in the November White Paper.
On the review that the Government conducted, we came to the conclusion that previous custodial arrangements were really rather chaotic. They had

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grown up piecemeal, perhaps without a coherent strategy. On assessing that situation we came to the conclusion that the DTO was the appropriate remedy to be available to the courts in some circumstances. We consulted the Home Secretary's task force. The noble Lord is quite right. But we went wider. We asked lay practitioners, the Association of Chief Police Officers, the Association of Directors of Social Services, the Criminal Justice Consultative Council and the Magistrates' Association. So even if the conclusion is not to universal satisfaction, our consultation was a decent and considered one.
The context I propose to spend a moment on, because I recognise the strength of feeling and indeed sympathise with it, is that we are not simply choosing piecemeal remedies and thinking that any of them is a perfect answer to these undoubted problems. We have to think of what we are offering as alternatives in this spectrum. No More Excuses, the White Paper of November, said that we wanted the courts to have a fully effective range of sentencing options, community based, I stress, as well as custodial, for all juvenile offenders. We must not overlook the action plan order; we must not overlook the reparation order. I take entirely to heart the observation of the right reverend Prelate. We do have what I think he would describe as moral duties to young people before incarcerating them. One way to discharge that moral duty, I agree, is to make the young offender realise what he or she has done. The action plan will deal with that; the reparation order will deal with that. It will be demonstrated to a child, however young, that he does have moral responsibilities though it is a child's responsibilities, not an adult's responsibilities.
I agree that we need to steer young people away from crime if we can. The melancholy truth is that for some children, a relatively small number, a degree of positive constructive custody has to be provided but only if we have discharged our community obligations to nip offending in the bud early and not simply allowed the system to be abused by delay, compounded by inappropriate penalties, so that although the child is not actually encouraged to continue to be a criminal he is not assisted to stop and sees no constructive purpose in stopping.
We believe that custodial sentences should not be regarded simply as an end in themselves but that they are sometimes needed to protect the public by removing the young offender. That, of course, is only a temporary relief. We are looking to positive, constructive regimes to prevent further offending but only at a stage when alternatives have been considered. That is why I accept the melancholy story that previous statistics point to. We have to bear in mind, however, that quite often reoffending rates often derive from a number of circumstances including the fact that no action plan order is at present available, nor any reparation order. And, of course, quite often in the past young offenders have been sentenced to custody—I say this with no harshness—at too late a point for it to be of assistance to them. If one leaves custody too late it does no service to the offender but simply increases the likelihood of further offending.
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Where custodial sentences are clearly required for 12 to 17 year-olds, we need the detention training order to put in place a framework. That framework has stringent requirements, which appear on the face of the Bill, before custody can be imposed. The tests set out in the Criminal Justice Act 1991 must be satisfied. Either the offence must be so serious that no other sentence can be justified or, in the case of a violent or sexual offence, only custody is adequate to protect the public from serious harm from the offender.
It is a sad proposition but there are circumstances when custody is the only adequate remedy to protect the public from serious harm. That being so, I would suggest, with great respect, that there is another moral and social obligation that any government have; namely, to protect the public so far as is consistent with decent progressive regimes for those who have to be incarcerated.
No one wants to see what is, after all, a child under 17 incarcerated. If all were well, all came from good families, and all had the opportunities that we in this House have had, there would be no need for custody. But that is not the world in which we presently live.
I turn to the different question of the under 12 year-olds. It is not yet apparent that there is a need to introduce this order for 10 and 11 year-olds, and therefore that is my answer to the question put by the noble Earl, Lord Mar and Kellie, as to the likely take-up. The Bill, as it stands, as a number of noble Lords indicated, contains simply a power for the Secretary of State to extend the order to include this age group. If experience demonstrates that that is required to assist with a positive, constructive regime for offenders, even of that young age, or for public protection, we would have to give it very careful consideration before the Secretary of State were minded to introduce the power by order.
We propose to monitor the courts' use of detention and training orders for over-12s. We want to monitor carefully the underlying rate of offending by 10 and 11 year-olds. If the order were extended to 10 and 11 year-olds—no one would want to do that other than with a heavy heart—before imposing such an order the court would have to satisfy itself of three things: that the offending is serious enough to justify the use of custody under the tests of the Criminal Justice Act 1991; that the offender is persistent; and, additionally, that only a custodial sentence is adequate to protect the public from further offending by him.
These are not welcome responses to concerns which I recognise as sincerely held and legitimate. However, that is the Government's policy. I believe that it is a soundly based policy which should prove useful in assisting very young people and protecting the public.
Baroness David: I should like to thank very much the noble Lords and the right reverend Prelate who have supported me on these amendments. I was very interested to hear about the work of the Children's Society which is not being funded as it should have

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been. I do not think the Minister responded to that or indeed to the right reverend Prelate's point about Europe. For us to be the worst country in Europe for detaining young people is something which we must all find quite abominable.
I thank the Minister for his long and careful reply, which will need to be read extremely carefully. All the evidence proves that detention, prison and custody do not work and I do not believe they will work any more now. I realise how much care will be taken before someone is put into custody but I firmly believe that it is wrong to put young children into custody. I know that it is only a power for 10 and 11 year-olds, but even so there is something really abhorrent in it.
I shall read carefully what the Minister has said, but I think that we shall almost certainly be coming back at the Report stage with further amendments on this subject. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 238 to 240 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 241:
Page 48, line 15, leave out ("is a persistent offender") and insert ("has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them").
The noble Earl said: With the leave of the Committee, perhaps I may speak to this amendment on behalf of my noble friend Lord Dholakia. Amendment No. 241 does not alter the Bill; it merely alters the wording. It sets out to provide a definition for the emotive term "persistent offender". Such an offender is rightly defined in the amendment as a teenager who,
"has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them".
It is always helpful to have this clearly in the Bill so that everyone knows what is meant. There is a difference between a persistent offender and an offender with some previous convictions. The former has a different attitude to his offending behaviour, identifying a lack of motivation to curb that offending behaviour. The latter can be thought of as a teenager trying frustratingly to find the limits imposed by society, and learning, albeit slowly, from the experience.
My initial reaction to seeing the words "persistent offender" in the Bill was that this was an unhelpful outbreak of labelling. Telling anyone whose behaviour must change that he is a persistent offender runs the risk of confirming the situation and, what is worse, creating a justification for continuing offending behaviour. I believe that the amendment avoids this unhelpful and counterproductive labelling process. I also note that the wording of the amendment has been lifted from the Criminal Justice Act 1982. I beg to move.
3.45 p.m.
Lord Henley: My amendment, Amendment No. 243, has been grouped with Amendment No. 241. Although it is not really on the same subject, it will do no harm
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if I say a word or two about it while also offering a degree of support for the amendment moved by the noble Earl, Lord Mar and Kellie.
Again, our amendment is merely one that changes the wording of this clause and suggests that the words "further offending by him" in subsection (2)(b)(i) be replaced with the words "serious harm". Those words are more inclusive words in terms of the kind of problems the persistent offender, or whatever he might be called following the amendment moved by the noble Earl, might cause. They are designed to offer better protection and better guidance to the courts as to when they should make use of the power. I shall be interested to know what the Government think in relation to that amendment and I shall listen carefully to what the Minister has to say.
The Chairman of Committees: As Amendment No. 243 is being spoken to, I should point out to the Committee that if Amendment No. 242 is agreed to, I cannot call Amendment No. 243.
Lord Northbourne: I should like to speak briefly in support of Amendment No. 241. It is a well known principle of education that you do not tell a child that he is a bad boy; you tell him that he is a boy who has behaved badly. The use of the words "persistent offender" will tend to encourage a child to role play the part of a persistent offender and it may well give him street cred among his peer group. I support Amendment No. 241.
Lord Monson: As a layman, it seems to me that both the Liberal Democrat amendment, Amendment No. 241, and the Conservative amendment, Amendment No. 243, are well thought out and would improve the Bill. I hope that the Government will give them both serious consideration.
Lord Renton: I wish I could think that they are well thought out. Those of your Lordships who have had the responsibility of sitting in court in a judicial capacity—we have with us a former Lord Chief Justice—will realise that when fixing a sentence the court needs to have very specific evidence. There is no more specific evidence than the evidence of previous convictions. The expression "persistent offender" makes it quite clear that the obligation of the court is to consider previous offences.
If, as an alternative and instead of using that expression, the court has to go into a history of failure to respond to non-custodial penalties and the question of whether the child was unable or unwilling to respond, a great deal of evidence will have to be taken and conclusions from that evidence could very well vary. In order that justice may not only be done but appear to be done with a degree of certainty, it is far better to stick to the phrase "persistent offender".
Baroness David: I have to disagree with the noble Lord, Lord Renton. I have sat in a judicial capacity as a magistrate; admittedly it was rather a long time ago. I do not think it will be too difficult to find out whether

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someone has been unable or unwilling to respond. A probation officer or a social worker could perfectly well explain what had happened. I very much dislike the phrase "persistent offender" and I am totally in sympathy with the mover of the amendment and the other noble Lords who have spoken in favour of it. I hope that this time the Minister may have a better response.
Lord Williams of Mostyn: I am sorry to say that the noble Baroness is likely to find me a persistent offender until later in the evening. I spoke at a little length on the first group of amendments. I said then that we found the present provisions for custody not focused or coherent. Therefore, we are looking to something which is new and capable of being flexible, positive and constructive. I have already set out the conditions and I do not repeat myself.
Amendment No. 241 would change the additional test which must be met before an under-15 year old can be made the subject of a detention and training order. Instead of the court simply having to satisfy itself that the offender is persistent, it would have to go through the further test of a history of failing to respond to non-custodial penalties and also that the offender was unwilling or unable to respond to them.
I take the point made by the noble Lord, Lord Northbourne, that telling someone he is a persistent offender is not going to be a badge of merit; but, equally, telling him that he has a history of failing to respond to non-custodial penalties and he is unable or unwilling to respond to them, is not likely to improve the shining hour. So with great respect to the noble Lord, I do not believe that his point is well made. We believe that to limit the court's discretion to impose a detention and training order where it would be appropriate, is not the way forward.
Amendment No. 243 is a still further narrowing of the criteria on which a detention and training order could be imposed on 10 and 11 year-olds, should the provision subsequently be introduced for that age group.
We believe that Amendment No. 243 is narrowing too far. It is deeply distressing, but there are offenders of that age who cause a good deal of harm to other vulnerable sections of the community. Children are particularly vulnerable, but not uniquely vulnerable. Quite a lot of people have their lives made a misery by very young offenders. The Government have a duty to attend to their interests as well—not to put their interests above all else but to give them a decent regard.
If the order is made by the Secretary of State in due time, and if one has someone who is already a persistent offender at that age and the court is convinced that custody is the only way to protect the public from further offending, we believe that court intervention, as an opportunity, should be there. We do not believe that raising the threshold any further does anyone any favours, neither the victims nor the defendants. We have Struck a balance in the legislation between restricting the use of custody and giving the courts sufficient discretion.
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I stress again that before one comes to the conclusion in many cases that a child needs to be in custody, or should be in custody, there are alternatives which we are providing. We believe that they are capable, if worked properly, of transforming the way in which we deal with young children. I refer to the action plan, the reparation order and other remedial measures which do not involve custody. We specified them on earlier occasions. Sometimes small children can do infinite harm whether or not they recognise it. Sometimes they will need to be dealt with constructively, carefully, but nevertheless firmly.
The Earl of Mar and Kellie: I am grateful to the noble Lord for his answers. While it may be for the convenience of the more judicially-minded Members of the Committee that a persistent offender is just someone who has committed many offences, as someone coming more from the social work end of the process, there is a difference between an offender who commits the same offence several times and someone who commits a different offence each time. Persistence means continuing to commit the original offence. From the social worker's point of view, trying to promote change is never helped by labelling because, as I have said, it allows the offender to say, "I am fated and predestined to do it". That is not a useful thing.
The Minister has declined to accept my definition. I was hoping that he would very willingly insert it in Clause 92, which gives the opportunity for a definition. Perhaps it may appear as a government amendment later. The Minister has kindly smiled at me. Therefore, without more ado, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 242 and 243 not moved.]
Lord Henley Lord Henley moved Amendment No. 244:
Page 48, line 30, leave out from ("be") to ("24") and insert ("not less than 4 months or more than").
The noble Lord said: I hope that the Minister will smile on me. This is a very simple and straightforward drafting amendment. Clause 60(5) currently states that detention and training orders,
"shall be 4, 6, 8, 10, 12, 18 or 24 months".
No further discretion is allowed other than that the order should be for one of those seven specified times. My amendment suggests that it should be not less than 4 months and not more than 24 months, allowing the court to choose its own time within that band. That seems a much simpler way and leaves greater discretion to the court. I do not know why the Government drafted the matter in the way they did. I shall be very interested in the noble Lord's explanation and to know whether he could allow the court that little bit of extra discretion. I beg to move.
Lord Williams of Mostyn: I am sorry that I smiled at the noble Earl, Lord Mar and Kellie. I shall try to improve my behaviour in future. The noble Lord has indicated the consequence of his amendment if it were accepted. We have gone to discrete periods of four, six,

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eight, 12, 18 or 24 months because we want to make the orders readily understandable to the offenders; to try to prevent inconsistencies in sentencing; to help in designing constructive regimes and sentence plans; and to have equitable early and late release arrangements. I quite understand that a view, which could reasonably be come to, is that proposed by the noble Lord. We thought about it with some care because this is an unusual sentencing régime. But for the reasons that I have briefly mentioned we came to the conclusion that this was the better way forward.
Lord Henley: I find that a fairly extraordinary response. The Government wish to make the matter understandable to the offender. I do not see why they cannot understand the court giving a sentence of 22 months, 20 months or whatever, and some figure other than four, six, eight, 10, 12, 18 or 24 months. I take it that our education system has not come to such a pass that the only numbers that offenders can understand are the seven numbers put in front of them. I would have thought that other numbers would be within the grasp of most offenders. However, I take the noble Lord's point.
The second argument he put forward was that he desires consistent sentencing and I support him in that. But I fail to see how setting out seven discrete periods increases the possibility of consistent sentencing. That is a matter we shall come to later on. We all like to see a degree of consistency, but I fail to see why one cannot have consistency when the court has the discretion to choose any time between four months and 24 months. Having said that, I do not believe that this is an amendment of fundamental importance. I shall look again very carefully—
Lord Renton: Before my noble friend sits down, perhaps I may with humility intervene, to say that it is an extraordinary situation to find such a provision in the Bill. Normally, we try to give the court discretion to impose a sentence to fit the crime and the offender's previous record. Under Clause 60(5), although a court could impose an order for four, six, eight, 10, 12, 18 or 24 months, it would be excluded from imposing a period of detention of, say, 14, 15, 16, 20 or 22 months, which is quite absurd. I implore the noble Lord the Minister, who is generally so open-minded, to think again before my noble friend withdraws his amendment.
4 p.m.
Lord Williams of Mostyn: The provision does not take away discretion from the courts but places the discretion in discrete bands. The court will have to put its mind to whether a term of four, six, eight, 10 or 12 months is appropriate or, in more serious cases, 18 months or, in the most serious cases, 24 months. We believe that useful device will have two consequences—consistency of sentencing and maintaining the principle
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that one ought, where possible, to give the courts sufficient discretion in sentencing. Our present scheme encompasses both objectives.
Lord Henley: I noted carefully what the noble Lord the Minister said, which is that the provision is not taking away the discretion of the court but placing it in discrete bands. That seems to me to be taking away a degree of discretion but, at this stage, it would probably be best if I were to take away my amendment. In doing so, may I say how grateful I am to my noble friend Lord Renton for his support. I will read carefully what the Minister had to say and I may possibly return to this matter at a later stage, when we can look in more detail at the noble Lord's argument—which I am afraid I do not accept. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 agreed to.
Clause 61 [Duties and powers of court]:
Baroness David Baroness David moved Amendment No. 244A:
Page 49, line 24, leave out ("take account") and insert ("reduce that term by the length").
The noble Baroness said: This amendment provides that time on remand should automatically reduce the term of a detention and training order. Clause 61(6) as it stands requires the court to take account of time spent on remand in custody when sentencing a young offender to a detention and training order. The amendment provides that time spent on remand will automatically reduce the sentence. Prisoners on remand are not only deprived of their liberty but are usually held in the most restricted conditions in the prison system. It would be unjust to make them serve this time twice over.
It may be argued that courts should be permitted to disallow remand time from counting when the defence has wasted time before a trial. There is, however, a risk that defendants will thereby be penalised for the behaviour of dilatory or less than competent defence lawyers and that, in cases involving co-defendants, one defendant could be penalised for delays caused by another. We prefer to see the problem of time-wasting before trial dealt with by the rigorous application of time limits applicable to both prosecution and defence at each stage of the pre-trial process. I beg to move.
The Earl of Mar and Kellie: The noble Lord, Lord Williams of Mostyn, will have plenty of other occasions to make what I shall describe as a benevolent smile of sorrow in my direction. I am not convinced that I can support this amendment because I am a little worried about automatic backdating. I know that is part of the English system but I want to speak briefly about the Scottish system, which can be characterised by the fact that the defence solicitor or agent makes a plea to the sheriff for the backdating of the sentence in the event of the defendant having been in custody before sentencing. That provision allows the sheriff to grant backdating provided that the individual who has been in custody did not deliberately waste time or was in some

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way positively unhelpful. I am a little worried about automatically granting a backdated sentence when a person may have been positively unhelpful.
Lord Acton: My noble friend Lady David has made an overwhelming case. Although she has not had much luck with the Minister so far this afternoon, I very much hope that a great beam is crossing my noble friend's face even now and that he will grant this amendment.
Lord Williams of Mostyn: The purpose of these new orders is to run for a set period that will be clearly understood by all concerned—the defendant, his or her family, the supervisor and victim. The period must be long enough but no longer than is required to allow effective intervention and rehabilitation insofar as that may be brought about. We want to protect that clarity and to allow for effective intervention. We have therefore taken a different approach to the crediting of remand time.
Currently, remand time is deducted after the sentence has been passed and the residue is served in custody. We want the courts to be in a position to be as flexible as possible. If the amendment were carried, the courts would be obliged to reduce the term of each detention and training order by the period spent on remand. That would take away the court's flexibility to take account when sentencing of the time spent on remand. I put in parenthesis our determination to rid the system as far as humanly possible of dreadful cumulative delays.
If a court decides, having considered things carefully and taken into account the time spent on remand—and it may be, the reasons for that time—that four months is the right period for the individual to have, I repeat without apology, a positive and constructive regime intended to prevent reoffending, we believe that the court ought to be able to say, "Four months is the appropriate length. We have taken into account the time spent on remand. There will he no automatic deduction".
Baroness David: We are getting used to stonewalling by the Minister and to lack of a generous response. I thought that everybody was very worried about the length of time that young and older people are kept on remand, thereby filling prisons and other places of custody, such as secure accommodation—which seems altogether bad. Many times, people who are kept on remand are not given a custodial sentence. The whole question of remand ought to be looked at seriously. I thank my noble friend Lord Acton for his support. Again, of course, I am disappointed at such an ungenerous response. I shall read what the Minister said but I give no guarantee that I shall not return to this matter at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 agreed to.
Clause 62 [The period of detention and training]:
Lord Henley Lord Henley moved Amendment No. 245:
Page 50, line 1, at beginning insert ("Subject to subsections (1A) and (1B) below").
The noble Lord said: I will speak also to Amendment No. 247 and to Amendment No. 246, in the name of the
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noble Baroness, Lady David. Both my amendments and the amendment of the noble Baroness are designed to prohibit the placing of children under the age of 15 in Prison Service custody under a detention and training order. It first appears as though the noble Baroness's amendment is a more elegant way of achieving that objective, as it is easily comprehensible. It states exactly that,
"where the offender is under the age of 15, such accommodation shall not include a young offender institution".
I have approached the matter differently, by excluding Clause 62(7)(b), to keep young offenders out of Prison Service custody, while, for the over 15s, I have excluded subsection (7)(a), respecting a secure training centre. My reasoning is that I think it appropriate that there should be some way of ensuring that over-15s do not overlap with under-15s, allowing the risk of cross-fertilisation, if I may put it in those terms, with the over-15s corrupting the under-15s. However, I shall no doubt be informed that that is not the right way to set about it.
I do not want to rehearse some of the arguments that were put forward earlier when we discussed the question raised on Clause 60 by the noble Baroness, Lady David, on when custody is appropriate for under-15s. Although custody might be appropriate, there are occasions when Prison Service custody would not be appropriate. That is why we have tabled these amendments in their current form. I beg to move.
Baroness David: The noble Lord, Lord Henley, has described the purpose of my Amendment No. 246 as being to prohibit the placing of children under 15 in Prison Service custody. The current minimum age for being sent into Prison Service custody is 15. However, as it stands, Clause 62(7) apparently enables a child of any age who has been given a detention and training order to be placed in a Prison Service young offender institution. That could mean a child as young as 12 or even, if the lower age range of the order is reduced from 12 to 10, a child as young as 10. Presumably, it cannot be the intention of the legislation that young children should be placed in Prison Service accommodation. I believe that that should be made absolutely clear on the face of the Bill.
Lord Windlesham: The abolition of child imprisonment is one of the great causes of penal reform in the 19th century although the main changes did not come until the Children Act 1908. It would be a sad day if, nearly a century later, we were to see the clock being set back.
The principal objection towards which Amendment No. 246 is directed is not really to the notion of confinement where that is unavoidable above the age of 15, but is essentially to the place of confinement. We can all agree with the Home Secretary's opening words in the preface to the White Paper:
"Today's young offenders can too easily become tomorrow's criminals".
We can all agree with the noble Lord, Lord Williams of Mostyn, that destructive behaviour by some teenagers regrettably can, and at times does, cross the line between

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what is anti-social and what is criminal. In those circumstances, the young person concerned needs to be confronted with the consequences of his or her behaviour. If a custodial sentence is justified, it is the "how" and the "where" that is crucial.
Several Members of this Committee will remember the highly charged debates during the passage of the Criminal Justice and Public Order Act 1994 on the secure training orders and, in particular, the part played in those debates by the late Lady Faithfull. At that time I recall Labour Front Bench spokesmen arguing vigorously for persistent young offenders to be detained in local authority secure accommodation rather than in one of the proposed new training centres. There were supposed to be five national training centres, containing no more than 200 young people—that is, 40 in each—which would be managed by the Prison Service or by private contractors. That was three-and-a-half years ago. Where are we now? Not one of them is in operation. One has been constructed and is, I believe, due to be opened this April. So, here we have the next major criminal justice Bill and the innovation of one government being superseded by the innovation of another before it has come into effect.
But the lesson is the same: prison department establishments (whether young offender institutions or secure training centres) are the least effective of all the available disposals if measured in terms of preventing reoffending. We entirely accept what the noble Lord, Lord Williams, said—indeed, it is implicit in the Government's approach as set out in the White Paper—that much of this legislation is aimed at the need to prevent reoffending.
All forms of institutional care and institutional custody for young offenders unhappily have high reconviction rates; but 89 per cent. of juveniles leaving Prison Service custody are convicted again within two years, and that is a staggering percentage. I strongly support the amendments.
4.15 p.m.
Baroness David: Perhaps I may follow what the noble Lord, Lord Windlesham, said about the philosophy of this Bill. I am afraid that my government seem to go against so much that went on in the last century and much more recently. I remember—I am sure that older Members will remember—Lady Wootton, who was very much in the vanguard of thinking on all these matters. I well remember in 1994 how the late Lady Faithful] fought for children not to be sent to prison but to have secure accommodation available. It saddens me that we are now going into reverse on all this.
Lord Williams of Mostyn: In this order we want to offer flexibility in the arrangements for dealing with young offenders. We want to be able to place individual young offenders in accommodation according to their individual needs and maturity. That is why the order at present provides for the placement of young offenders in a young offender institution, a secure training centre,
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local authority secure accommodation, a youth treatment centre or other accommodation which may be directed by the Secretary of State. The result of these amendments would be to restrict the options.
No one wants to see a child deprived of liberty. I would suggest that very often different children mature at different rates and that chronological age is not always a good indicator of either maturity or, just as importantly, vulnerability. The consequence of these amendments would be that one could not put a vulnerable offender who had just turned 15 and was subject to, for instance, a four-month detention and training order, in a secure training centre, whereas a less vulnerable 14 year-old, just a few weeks younger but subject to a full two-year detention and training order, could be placed in a secure training centre until release, possibly after his 16th birthday, but not in a young offender institution.
I concede that those are extreme examples, but they indicate that one does not want to look to limiting discretion to place young offenders in the secure accommodation which is most suitable to their needs. We do not believe that restricting flexibility is the way we should be going.
I take up a point which my noble friend Lady David made earlier about secure accommodation for holding young people on remand. We are reviewing the range of secure accommodation to hold young people on remand or when they have been sentenced and how we can make best use of it. That review should be completed quite soon and will inform consideration of how to deal with the very difficult question of juveniles in secure accommodation.
Lord Henley: I am grateful to the noble Lord for giving way. He said that the review would be completed quite soon. Can the noble Lord say whether "quite soon" means that the review will be completed before the Bill leaves this House or while the Bill is in another place having completed its passage through this House?
Lord Williams of Mostyn: I doubt that the review would be completed before the Bill left this House, bearing in mind the nature of the review. If I am given any specific details I shall in the usual way write to the noble Lord.
One does not want legislative inflexibility built into the regime. If a child has to go into custody of whatever kind that should be related sensibly and flexibly to the needs of that individual child. Children can vary quite significantly. There are some bold, sophisticated, subtle young people who are well versed in crime at the age of 13 or 14. Equally, there are lost souls who are rather vulnerable and easily led and need to be dealt with differently and not on the basis of chronological age.
I hope that I have set out clearly the Government's position and that the review of the secure accommodation is of some comfort to my noble friend. On that basis I ask the noble Lord not to press his amendment.
Lord Henley: I apologise for intervening to ask the noble Lord what he meant by "quite soon". Many noble

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Lords on various occasions speaking from the Dispatch Box for the Government have used the words "soon" and "quite soon". According to my understanding, those words can have a variety of different meanings. I have the impression that on this occasion the "quite soon" is not as soon as all that and it is quite likely that we shall not have the benefit of this report before the Bill leaves this House and goes to another place.
I shall read very carefully what the noble Lord said. I am sure that the noble Baroness, Lady David, will do likewise. I have a sneaking suspicion that both I and the noble Baroness will wish to return to these issues at Report stage and possibly Third Reading so that they can be explored further. With that warning, perhaps the noble Lord will do his utmost to ensure that the "quite soon" in relation to the review is genuinely "quite soon" and that the review will, with a little luck, arrive in time to assist noble Lords at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 246 and 247 not moved.]
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 248:
Page 50, line 36, at end insert—
("() An offender who is a girl under the age of 18 shall be kept separate from adults and shall be detained in a separate institution such as local authority secure accommodation, or in a separate part of an institution also holding adults, unless, after assessment and in exceptional circumstances, it is held to be in the best interests of the offender to be held with adults for a temporary period.").
The noble Baroness said: Amendment No. 248 would make it unlawful for girls aged under 18 to be held with adults in prison. This would bring the UK into line with the United Nations Convention on the Rights of the Child. Article 37, to which the Government have entered a reservation, requires that juveniles and adults should be held separately. The information supporting this amendment was obtained by the Howard League's inquiry in 1997, which I had the privilege to chair, into the use of prison custody for girls aged 15 to 17. The inquiry visited all prisons that held teenage girls under the age of 18. It was able to talk to governors and staff and consult the probation, education, medical and psychology departments of each prison. The inquiry also interviewed over 80 per cent. of the girls under 18 who were being held to find out their offences and backgrounds.
The inquiry's report Lost Inside! The Imprisonment of Teenage Girls was published on 27th October 1997. All the girls who were interviewed were between 15 and 17. All were vulnerable and damaged youngsters in trouble. Forty per cent. had been in care; 65 per cent. had experienced broken families; 57 per cent. were excluded from school or were long-term non-attendees; 41 per cent. admitted to drug or alcohol abuse; and many had been abused.
During 1997 over 300 girls aged under 18 were held in adult prisons. At any one time there are between 60 and 80 girls held in the system. In 1992, however, there were only about 25. We believe that
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the main reason for the three-fold increase is that courts send girls to prison more readily than previously. Girls who are given a custodial sentence under Section 8 of the Criminal Justice Act 1982, which deals with detention in a young offender institution, are always held in women's gaols alongside adults. This occurs because there are no specifically designated young offender institutions for girls as there are for boys, who are always held separately from adults. In order to abide by the letter of the law these prisons are designated as young offender institutions, although in reality they are adult prisons with few facilities for young people and with regimes designed for adults.
Should not young girls of 15 and 16 have full-time education? The Prison Service is unable to provide special units to accommodate small groups of girls around the country because the number is too small, and one large young offender institution would result in children being hundreds of miles from home. The best option is to hold the girls in local authority secure accommodation units where, apart from providing rehabilitative regimes designed for adolescents, there is a better chance of those girls being nearer their families because the units are regional.
Under the clause girls as young as 12, and possibly 10, who are sentenced to detention and training orders can be held in adult gaols which are also designated as young offender institutions. This arises because the definition of "secure accommodation" in Clause 62(7) of the Bill includes young offender institutions.
In August last year the High Court ruled that the Home Office policy of holding young offenders in adult gaols at the start of their sentence was unlawful. Four of the five holding prisons which took prisoners direct from the courts after sentence were adult prisons with no designation as young offender institutions. Since then a number of these prisons have been redesignated as both adult prisons and young offender institutions. Since the Flood case the Prison Service has begun to reorganise the prisons to provide separate sleeping accommodation for juveniles. However, the practice remains that during the day teenagers share regimes with adults and mix with them, still in breach of the United Nations Convention on the Rights of the Child.
The Prison Service argues mixing adults and children provides the children with mothering figures and that as a result young girls are less volatile; but there is a danger that young girls will become bonded to prison. Further, those who mother the girls are themselves often damaged women who are unlikely to be able to provide good role models for the children to follow. The danger is that relationships that appear to be mothering can hide subtle bullying which prison staff may find hard to detect. The risk of contamination from adults is no less with girls than with boys. Girls are just as

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impressionable and will want to emulate women who have committed more sophisticated offences such as credit card fraud. They particularly look up to women in their 20s.
The Howard League found that despite being minors the girls were not often given protection under the Children Act. The Howard League inquiry found cases where girls were mixing with adults who had committed serious violent and sexual offences against children. For example, a 15-year-old was placed in a cell next to a woman who had been convicted of procuring 15-year-olds into prostitution. The Howard League is concerned that questions about sex and other issues around growing up are becoming distorted for children at the crucial ages of 15, 16 and 17 at a time when they are sorting out their difficult problems.
While the presence of the older women may help in keeping young girls less volatile, we believe that this can be achieved by holding the girls in small groups in local authority secure units.
Many prison staff are not suited to working with demanding youngsters, nor do they particularly want to do so, having been recruited to work with adults. They are also largely untrained in dealing with a vulnerable and difficult group. The only training available is a three-day training pack, designed by the trust for the study of adolescence. Since the prisons are essentially designed for adults, the girls represent a very small percentage and are included in the adult regime. There is little provided which is designed for their rehabilitation.
The culture and environment in prison is damaging for adolescent girls. They are engulfed in a world of dysfunction where emotionally damaged women regularly self harm, where any number of drugs are widely available and where bullying may be endemic. The girls are the odd ones in the prison and they are expected to behave like the adults that they are not. Typically, teenage behaviour is not tolerated by staff and older prisoners.
The amendment is flexible enough to allow girls in exceptional circumstances, for example if they wish to have a baby with them, which may be in their best interest, to be held with adults for a temporary period.
I hope that the Minister, who has so much knowledge of this subject, will accept the amendment. I beg to move.
Lord Acton: I would like to pick up the final point that the noble Baroness, Lady Masham, raised on this amendment, to which I have put my name. That is the question of young girls who are mothers or mothers-to-be. Can the Minister say whether there is any mother and baby accommodation at all outside prison?
Baroness Mallalieu: I support the amendment brought by the noble Baroness, Lady Masham, and in doing so pay tribute to her and her panel who last year produced a report that was both powerful and damning on a relatively small number of teenage girls for whom our present system, frankly, makes no appropriate provision.
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As a barrister visiting prisons, one is normally confined to the areas set aside for legal visits or, on occasions, to the hospital wing, if one's client is being held there. The impression one gets of the atmosphere and regime is usually quite superficial and restrictive. However, women's prisons are those which over the years have left the deepest impression on me: an undercurrent of bullying, intimidation, favouritism and ganging up, all set against a background of a closed community of mainly emotionally damaged women, is sometimes palpable even from where I have been sitting during brief visits.
The report produced by the Howard League from a panel chaired by the noble Baroness opened my eyes and confirmed that impression as reality. Older women who find themselves in prison are very often, perhaps more often than not, serious social misfits, and yet into that unhealthy and corrupting environment we are currently sending juvenile girls for whom, because of their small number and no doubt the expense that would be involved, we have made no proper provision.
As the report showed, a high proportion of them sadly come from care, which is an indictment in itself. Others come from broken homes and a widespread background of abuse. The report refers to the high incidence of self-mutilation among those young girls whilst in prison, which says more than any words about the state of mind of so many of these youngsters who we are treating in this way; yet we are currently putting them into regimes which are designed for adults, and under the care of staff who have had only the most rudimentary training in how to deal with this age group.
As the noble Baroness stated, unlike boys who are kept separate from adults, we usually place these very disturbed girls in close proximity to older women who are themselves often damaged, and we expose them to a culture of corruption.
As the noble Baroness indicated, what we are doing appears to be contrary to Article 37 of the United Nations Convention. There is an alternative, and that is local authority secure accommodation with proper rehabilitative regimes which are designed for this age group. They would surely provide a better chance for the future for these young offenders than exposing them to older women who the system has already plainly failed. The amendment to this part of the Bill gives an ideal opportunity to our Government to stop this happening. I beg to support the amendment.
Viscount Tenby: I rise to support the amendment in the name of my noble friend Lady Masham. My noble friend has already done a great deal of valuable work in chairing the group which produced this extremely useful report at the end of last year on the use of prison custody for girls between 15 and 17 years of age, of whom there are probably no more than 60 at any one time within the system.
In a way, the amendment and others which follow all hinge on the undesirability in a civilised society of committing various groups of offenders to senior prison establishments. In this case it is girls who, bizarrely, are not given their own separate young offender establishment.

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I fully realise the administrative implications which will follow should the amendment be adopted. No doubt the Minister will enumerate those implications in his reply. Let me try to make an educated guess as to some of the reasons he may advance. The numbers are small: we know that already. To have a custom-built section in a designated prison will inevitably mean concentration of all such prisoners there, almost certainly far from family and support probation services. It will place too high a financial burden on the prison estate. That is a situation that over the years the Government have inherited from past administrations.
All these arguments have merit: it would be foolish and unfair to say otherwise. No-one is blaming the Government for this state of affairs. This thoroughly unsatisfactory situation stems from years of neglect and the absence of imagination on the part of previous administrations.
What we do have a right to say, surely, is this: let us do something about it now. A complete reorganisation and refunding of the programme for local secure accommodation could remove these girls from the prison system now and for ever, especially if we take the bold step of parting local secure accommodation, at least for the purposes of funding, from the Health and Social Security Department, and passing it to where it belongs, the Home Office and Prison Service. If that revolutionary suggestion does not take the smile off the noble Lord the Minister, I do not know what will.
Lord Hurd of Westwell: I support the noble Baroness, Lady Masham. I do not believe that she needs a great deal of support because the work she has done in this field gives her a unique authority to speak. She has mobilised the argument very well.
I pray in aid Her Majesty's Chief Inspector of Prisons, who, in his thematic review of women offenders published last year, stated:
"There are serious child protection issues in mixing young prisoners with others… We noted, for example, women convicted of procuring being held alongside 15 and 16 year olds".
That deals with the mothering argument which the noble Baroness expected to meet from the Minister.
The Minister may argue—and we can understand why he should do so—that the Prison Service is now committed to providing wholly separate units designated to the needs of teenagers. But, as has been pointed out, the numbers are small; we are talking about 80 15 to 17 year-old girls in the system at any one time. Separate prison units for that purpose would be expensive and, as the noble Baroness pointed out, they would inevitably mean that such girls would be held hundreds of miles away from their own homes.
The Chief Inspector of Prisons went further. In the same review he stated:
"I am convinced that the Prison Service is better suited to, and more appropriate for, dealing with adults and that children",
that is, children of both sexes,
"should no longer he its responsibility. I am also convinced that, whilst some of the particular needs of children in custody are shared with young adults, they have other distinct needs in the areas of
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protection, maturation and education. I therefore conclude that the Prison Service should relinquish responsibility for all children under the age of 18".
As has been pointed out, the number of girls sent to Prison Service custody trebled between 1992 and 1996. Many of us would believe that most could and should be punished in the community. However, for those who genuinely deserve and require a secure environment, detention should be in local authority secure accommodation which, for all its faults—such accommodation can never be perfect—is likely to be closer to home and more responsive to the needs of children than a prison can ever be.
Lord Judd: I support the noble Baroness. In doing so, I join those who have paid tribute to her consistent commitment to this issue. If we take penal policy seriously, as regards serious offences, we can never underestimate the importance of punishment and the protection of society. However, in a civilised society, the greatest challenge of all in penal policy is the rehabilitation of the offender. In the treatment of young girls, I find it difficult to imagine anything which could engender a greater likelihood of delinquent behaviour in later life than the issue raised by this amendment.
There is plenty of evidence to indicate that even when dealing with the most serious offences, if the right kind of individual and personal attention can be provided for the young girl found guilty of the crime there is a real chance of building a better life for the future. It is easy in such debates to ignore or to make only a passing reference to the fact that in almost every case there are horrific stories of conditioning in younger life, in family circumstances and so forth which those of us who come from what can be described as more normal family circumstances find difficult to believe.
For all those reasons, I hope that my noble friend will take the amendment seriously and will accept it. I have heard him argue that we must be realistic, that not everything can be done at once and that only small numbers are involved. However, perhaps I may say without being accused of being over emotional, each individual case represents a 100 per cent. problem in terms of the individual. To say that only a small number of girls is involved and then to ignore the future cost to society in failing immediately to find appropriate treatment is extraordinary. Therefore, I cannot believe that it is possible to underestimate the need for urgency in action.
I know that the Minister is sympathetic. I hope that today he will say that his department is determined to move faster in this matter and that he will indicate that by accepting the amendment tabled by a noble Baroness who is second to none in her understanding of and commitment to the issue.
4.45 p.m.
Lord Campbell of Alloway: I support the amendment for the cogent reasons given by all Members of the Committee who have spoken. It requires no elaboration, no further emphasis and, assuredly, no repetition.

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I am on my feet because I wish it to be on record that some of us on this side of the Committee, quite apart from the noble Lord who has just spoken with far greater experience than I, support the amendment. It is, so to speak, an all-party amendment. I wish to ask the Minister seriously to consider not only the relatively small number of people involved, 60 or 80—a handful compared with the mass of prisoners—but also the cost involved compared with the cost to society if action is not taken. A balance must be struck. I hope that the Minister will give us a firm assurance so that we do not have to divide on the issue. However, if there is a Division, I shall support the amendment.
Lord Thomas of Gresford: I assure the Minister that we, too, support this important amendment. Everything that could be said was said, first by the noble Baroness, Lady Masham, and then by other Members of the Committee. I believe that no rational distinction can be drawn between the position of adolescent boys, who are kept separately from adults, and adolescent girls. I believe that the case for adolescent girls is even stronger; they should not be contaminated by too intimate a contact with older women.
I hope that on this occasion the Minister, who has not been particularly giving in connection with the Bill, will assure the Committee that it is not a matter of cost and that he will accede to the requests which have been made.
The Lord Bishop of Lichfield: I am sorry to say that in my diocese there are more prisons than in any other diocese in the country. All the chaplains and voluntary workers in prisons would wish to support the noble Lord, Lord Judd, in pointing out that small numbers represent a great opportunity. Small numbers enable relationships to be struck which lead to the prime aim of rehabilitation sought by every Member of the Committee. The amendment represents the most effective way of achieving that result.
The Earl of Mar and Kellie: I support the amendment. The penultimate line mentions the "best interests" of the young girl. The noble Baroness gave as an example the possibility of a girl staying with her young baby, but I have two further ideas of what it might be. The first would be the application of crisis theory; the idea that one might promote change by shocking the individual with the reality of imprisonment. The second one is the rather mistaken view that the young woman might learn a coping strategy for imprisonment just by being in prison. I should particularly like to reject that, because I believe that it is much more important that young offenders learn coping strategies for living in the community.
Lord Williams of Mostyn: Members of the Committee will remember that the noble Baroness raised this matter by way of a tabled Question a short while ago. I do not believe that anyone who has heard what she said today, or read the reports to which she
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and the noble Lord, Lord Hurd, referred, could approach the topic other than with a sense of deep unease and unhappiness.
It seems to me that the amendment really deals, first, with the question of accommodation; and, secondly, with mixing during activities. The Flood judgment in 1997 required the Prison Service to put right what was wrong in the present arrangements. It means that all female offenders under the age of 21 years are now held in designated parts of female prisons. In some cases there are separate houses or separate wings. Whether it is a separate house or a separate wing, those designated areas operate under young offender institution rules.
It is possible that for specific reasons some young women should be in a prison rather than in a young offenders' institution. That is what is allowed under the Criminal Justice Act 1982, but it only applies on a case-by-case basis and not a category basis. Reference has already been made to some examples in that respect; for example, placement in a mother-and-baby unit or the need for specialist medical or psychiatric care, which will not always be available in the sort of local authority accommodation that has been suggested as the answer to these problems.
The noble Lord, Lord Acton, asked me a specific question, the answer to which is, no. There is no local authority home with a mother-and-baby unit. The Prison Service has four: one at Holloway, one at New Hall in Wakefield; one at Styal in Cheshire and one at Askham Grange, the open prison, in York. I readily accept that it is no answer to say that the number involved is fewer than 80, indeed, that is something that we must consider.
If we had the number of distinct local authority units which has been mentioned we might well end up with a number of local authority secure accommodation units containing as few as five persons. It is very difficult to get a decent, meaningful and constructive regime for education, training and appropriate programmes to help address problems so as to do away with the possibility of reoffending in units which are that small.
I know that this point has already been made, but we should not overlook the fact that the possibility of contact with family and with the home community can be maintained. This is no excuse; nor is it a reproach. We inherited a situation which is difficult. I do not pretend that we have even begun to achieve a perfect solution.
So, what have we done? We have reorganised the Prison Service so that there is now a framework for delivery of a regime specifically directed to women and female young offenders. A good deal of the impetus for that came from the report of the chief inspector and from the report to which the noble Baroness, Lady Masham, made such a notable contribution. Moreover, some of that impetus has come from within the service and a part of it is predicated on our belief that custodial sentences are not an end in themselves.
I mentioned earlier the review of the range of secure accommodation for holding young persons who are remanded in, or sentenced to, custody. I can assure the Committee that that review also includes now—in the sense that the review is still continuing—consideration of

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the most appropriate arrangements for the small number of girls held in custody. I agree with what my noble friend Lord Judd said; namely, that whether the number is 60 or 80 is not really material. Each one of those girls is an individual. I emphasise the sense of deep unease that one feels when one looks at what the chief inspector said in his report and, indeed, at the findings of the Howard League report.
All I can say to Members of the Committee is that, for my part, I take such concerns most seriously. I am not seeking to avoid Home Office responsibility for this problem which is both long-standing and serious. I cannot accept the amendment. However, I undertake to transmit what I take to be the unanimous, strongly expressed and held views of this Chamber to my right honourable friend the Secretary of State.
Baroness Masham of Ilton: I should like to thank all supporters of the amendment for their very strong support. I also thank the Minister for his response. However, I must point out to the noble Lord that, when we were looking at secure accommodation, we found that some very serious offenders are now housed in secure accommodation provided by local authorities, while less serious offenders—for example, young girls—are in prison. The situation really does seem upside down and extraordinary. Before we reach the Report stage, I hope that the Minister will review the situation because it seems to be entirely wrong.
When we visited New Hall prison, which is near Wakefield, we found that the girls were being locked up at 5 o'clock in the afternoon. That is really very damaging for young teenagers who, as we all know, can be very difficult. Indeed, the complete lock-up takes place at 5 p.m. That is not a healthy situation. Bearing in mind what the Minister said and, indeed, the strong support expressed by Members of the Committee, I shall carefully consider what is going to happen. It is possible that we may have to divide on the matter on Report if we do not receive a satisfactory solution. Indeed, that will put emphasis on the whole matter when it goes to the other place. Having said that, I beg leave to withdraw the amendment.
Lord Hylton: Before we leave this part of the Bill, I should like to ask the Minister whether he can say how the Government envisage the training component of detention and training orders will actually be organised in practice. Can the Minister say how it will be done, given the fact that there are likely only to be small numbers of people undergoing these orders in individual places? Who will provide the training; in other words, what type of personnel will be involved?
One should also bear in mind at this stage that those young people becoming the subject of such orders are likely, as the noble Baroness, Lady Masham, said when speaking to the last amendment, to be highly vulnerable, whether they are girls or boys. Indeed, many of them will have come out of care, will have been excluded from their previous schools and may have a history and a record of suffering sexual abuse. So they will be difficult people to teach and train. I wonder who will be found to undertake this particularly demanding job.
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Further, can the Minister tell the Committee where the training will be delivered? Will it be in the place of custody? If not, I can foresee there will be problems escorting people to and from the training. These are all questions to which, as far as I know, we have not yet had an explanation from the Government in the course of the Bill. I apologise that on this occasion I have not given the Minister prior notice of this point.
5 p.m.
Lord Williams of Mostyn: The noble Baroness has dealt most graciously with this important matter. The noble Lord, Lord Hylton, is quite right. Normally, we try to arrange these matters in correspondence. I am perfectly happy to do that. Part of the answer to his question is that it is intended that a sentence plan will be drawn up at sentence with a member of the YOT scheme. Progress in custody and afterwards will be monitored. On release there will be supervision. It seems to me that that is not as full an answer as I ought to be able to give the noble Lord. Will he allow me to write to him with fuller responses to his detailed questions, as we have done in the past?
Lord Hylton: If the noble Lord is kind enough to write to me, will he also place a copy of his letter in the Library?
Lord Williams of Mostyn: I shall certainly do that as soon as I can.
Amendment, by leave, withdrawn.
Clause 62 agreed to.
Clause 63 agreed to.
Clause 64 [Breaches of supervision requirements]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 249:
Page 52, line 2, at end insert
("() An offender detained in pursuance of an order under subsection (3) above shall be deemed to be in legal custody; and a fine imposed under that subsection shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.").
The noble Lord said: In moving Amendment No. 249 I wish to speak also to the amendments grouped with it, Amendments Nos. 250, 251, 252, 253, 254 and 255.
Amendments Nos. 249 to 255 are technical amendments to ensure the smooth functioning of the detention and training order and the transitional arrangements for the secure training order. They clarify that those detained under provisions relating to either order are deemed to be in legal custody. The amendments also provide that a fine imposed for breach of supervision requirements of either order will be treated as a fine imposed on conviction. Normal court powers to deal with fine defaults will apply to those fines. The Bill as it stands includes no power to enforce the fine should the offender or the parent default. The amendments are intended to rectify this omission.
Amendment No. 250 extends the powers currently available to the courts to deal with defaults of other fines to fines imposed for a breach of supervision requirements imposed under a detention and training order. There is no power at present.
Amendments Nos. 251 to 254 amend Clause 91(2) which sets out the modifications which may be made by an order under Section 2 of the Criminal Justice and Public Order Act 1994 and in Section 4 of the 1994 Act. Subsection (7) of Section 2 provides that a person detained elsewhere than in a secure training centre because accommodation there is not immediately available, under subsection (2), or because he has been transferred elsewhere because of special circumstances, under subsection (4), is also deemed to be in legal custody. Amendments Nos. 251 to 254 ensure that subsection (7) applies to both those situations while an order under Clause 91 is in force and that subsection (5), which defines those who may provide accommodation, continues to apply to transfer under subsection (4).
Amendment No. 255—the final amendment in this group—provides an additional transitory provision governing the period before Clause 60 of this Bill relating to detention and training orders is enacted. This new subsection (4A), inserted in Section 4 of the 1994 Act, which deals with breach of supervision requirements for secure training orders, provides that a fine imposed under subsection (3)(b) of Section 4, for breach of requirements, shall be deemed to be a sum adjudged to be paid by conviction. With that explanation of these technical amendments, I beg to move.
Lord Henley: The noble Lord helpfully wrote to me about a number of government amendments that he was proposing to table. Unfortunately my filing system—if I can call it that—broke down this morning and I am not clear that he wrote to me about these amendments.
I suspect that he did not. I have, though, listened carefully to what he has had to say about them. As far as I can make out, I have no objections. Can he confirm that they formed part of the group of amendments about which he wrote to me, a copy of the letter, I imagine, having also been sent to the noble Lord, Lord Thomas?
Lord Williams of Mostyn: My best recollection is that they were contained in what was, I think, a rather lengthy letter. I shall check that and if they were not, I shall write again. If they were, I shall resend the letter.
On Question, amendment agreed to.
Clause 64, as amended, agreed to.
Clause 65 [Offences during currency of order]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 250:
Page 52, line 29, at end insert—
("() A person detained in pursuance of an order under subsection (2) above shall be deemed to be in legal custody.").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 65, as amended, agreed to.
Clause 91 [Transitory provisions]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 251 to 255:
Page 74, line 28, leave out second ("that") and insert ("the 1994").
Page 74, line 31, leave out ("subsections") and insert ("subsection").
Page 75, leave out lines 1 to 3 and insert—
("(b) in subsection (5) of that section, for the words "subsections (2)(a)(ii) and (4)(b) apply" there were substituted the words "subsection (4)(b) applies";").
Page 75, line 11, leave out ("subsection (8)") and insert ("subsections (7) and (8)").
Page 75, line 11, at end insert—
("() In relation to any time before the commencement of section 60 above, section 4 of the 1994 Act shall have effect as if after subsection (4) there were inserted the following subsection—
"(4A) A fine imposed under subsection (3)(b) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction."").
The noble Lord said: I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
Clause 91, as amended, agreed to.
Lord Ackner Lord Ackner moved Amendment No. 256:
Before Clause 66, insert the following new clause—
STANDING ADVISORY COUNCIL ON CRIMINAL JUSTICE AND THE PENAL SYSTEM
(" .—(1) There shall be constituted a body to be known as the Standing Advisory Council on Criminal Justice and the Penal System ("the Advisory Council") for the purpose of—

(a) advising the Secretary of State on the adequacy and effectiveness of the criminal law and procedure of the criminal courts;

(b) advising the Secretary of State on such aspects of the penal system as he may from time to time refer to it; and

(c) at the request of the sentencing Advisory Panel referred to in section 67 below, providing such advice and assistance as may enable the panel the better to discharge its functions.

(2) The Advisory Council shall consist of—

(a) a chairman appointed by the Secretary of State, after consultation with the Lord Chancellor and the Lord Chief Justice, from among the members of the Advisory Council; and

(b) such other members, not exceeding eighteen in number, as the Secretary of State may appoint having regard to qualifications referred to in subsection (3).

(3) At least two-thirds of the members of the Advisory Council shall be persons who appear to the Secretary of State to possess knowledge or experience of any aspect of the criminal justice system or the penal system including, in particular, the prosecution of offenders and their care and treatment in prison and the community.
(4) The members of the Advisory Council shall hold and vacate office in accordance with the terms of their respective appointments and shall, on ceasing to hold office, be eligible for re-appointment, but any such member may at any time, by notice addressed to the Secretary of State, resign his office.
(5) The Secretary of State may, out of moneys provided by Parliament, pay the members of the Advisory Council such remuneration and such allowances as may be determined by the Secretary of State with the consent of the Treasury.
(6) The Secretary of State shall provide the Advisory Council with such officers and such accommodation as may be appropriate.
(7) The Advisory Council shall make annual reports to the Secretary of State with respect to its functions, and the Secretary of State shall lay any such report before each House of Parliament.
(8) The Advisory Council shall separately report to the Secretary of State on any matter referred to it, or sanctioned by the Secretary of State for advice; and the Secretary of State shall publish any such report.").
The noble and learned Lord said: Since I do not claim pride of parentage in this amendment, which provides for the setting up of a standing advisory council on criminal justice and the penal system, I think I can say without immodesty that it is a very important amendment, as indeed is demonstrated by those who have added their names in its support.
The aetiology of the amendment is of some significance. The 10th April 1995 was the centenary of the report of the Gladstone Committee on Prisons. The crucial contribution which that committee made to penal thinking was its insistence that the reformation of prisoners should become one of the primary aims of the prison system. It argued that,
"the present system. while admirable for cohersion or oppression, is excessively deficient in the reformatory side".
The committee proposed that prisoners' treatment,
"should be more effectively designed to maintain, stimulate or awaken the higher susceptibilities of prisoners, to develop their moral instincts, to train them in orderly and industrial habits, and whenever possible to turn them out of prison, better men and women, both physically and morally, than when they came in".
To mark this centenary there was sent to The Times a letter under the joint signatures of Professor Sean McConville, Sir Louis Blom-Cooper, the noble Lord, Lord Allen of Abbeydale, Professor Anthony Bottoms, the noble Lord, Lord Callaghan, Sir Ralph Gibson, John Harding, the noble Lord, Lord Hunt of Llanfairwaterdine, Professor Terence Morris, Brendan O'Connor Friel, and the noble Lord, Lord Runcie. It stated among other things:
"We think the time is right for an overview, on the scale of the Gladstone enquiry, to propound a sound authoritative penal philosophy for the 20th Century".
The letter went on to say:
"Over the last two decades the United States has shown the tragic and counter-productive results of mixing competitive party politics in such policy debates and thereby inflaming public opinion. This is a field where the national interest demands that bipartisanship should be striven for, even while legitimate party differences are debated".
The letter stressed that it was essential to provide a mechanism to address these important issues—criminal and penal policy—dispassionately, authoritatively and constructively.
In the debate on the Address on 19th May 1997 I invited the Government to make provision for a comprehensive reassessment of a rational penal policy and thereby to restore much-needed public confidence in the system. In a subsequent debate I repeated the invitation. I was accordingly delighted to learn that my
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noble and learned friend the Lord Chief Justice, on two occasions in two lectures, subsequently endorsed my suggestion. His last comment was made at the conclusion of the annual lecture of the Prison Reform Trust given by him last June. He said:
"If a revived Advisory Council were able, with the benefit of intensive world-wide research and consultation, to reach authoritative conclusions which commanded the respect of public and the professional opinion, and if those conclusions were given legislative effect, this Parliament would earn an assured place in the history of this country".
Of course I accept that crime is a complex phenomenon and that there is no "quick fix". The various parts of the criminal justice system—the police, prosecution, the court, the Probation Service and Prison Service—often address quite different agendas, and this was acknowledged by the establishment of the Criminal Justice Consultative Council in order to reconcile the potentially conflicting aims of these disparate agencies. I accept, of course, that the public are impatient, indeed angry and frightened, at rising crime and want results from the police and the criminal justice system. But the public require to be far better informed than they are at present. They need to know that there is no realistic prospect with the present degree of overcrowding in prisons and the continuing cutback in prison budgets, of prisoners at the end of their sentence being either better equipped or better motivated to lead an honest life than when they began their sentence. On the contrary, the reverse is often the case. The public ought to know that if the present harsh sentencing regime continues it is expected by the Home Office to give a prison population of nearly 83,000 for the year 2005. That is virtually double what it was some five years ago. It will involve crippling expenditure for new prisons, additional staff and associated expenses.
On 18th February, last month, during a debate on life prisoners and release procedures, I learned from an admirable speech by the noble Baroness, Lady Linklater of Butterstone, that not only have we more than 3,500 lifers in our system at the moment but they represent more than the entire lifer population of Europe put together. Why is that, and why do we have a higher proportion of our population behind bars than any other nation in Western Europe? We have 120 prisoners for every 100,000 people in the general population compared with 89 in France, 84 in Germany and 65 in Sweden. Have other European countries more effective community-based alternatives to incarceration? How have other countries gained public acceptance of alternative strategies to traditional imprisonment? Is there in Europe a more balanced approach to sentencing; and, if so, how has that been achieved? These and other questions need careful research, and I submit that this can only be successful by an authoritative and dispassionate body of the kind we recommend.
In conclusion, in case it should be suggested that criminal policy has been now removed from competitive party politics, let me remind your Lordships of Amendment No. 218A, which was

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moved by the noble Lord, Lord Windlesham, only a week ago. It related to Section 2(5) of the Crime (Sentences) Act 1997, which provides for mandatory life sentences on second conviction of certain violent and sexual offences. What was sought by the amendment was very modest. It was to remove paragraph (d), which provided that Section 18 offences of wounding or causing grievous bodily harm with intent should not trigger the mandatory life sentence. The noble Lord explained that while some Section 18 offences were very serious indeed, and rightly carried up to a maximum of a life sentence on first conviction, at the other end of the scale is a large cluster of relatively minor incidents. He explained that the most cursory scrutiny of some recent Section 18 appeal cases revealed sentences as low as six months upheld on appeal. He emphasised the absurdity of a judge being obliged to impose a sentence of life imprisonment and then explaining, as he is bound to do, that the tariff—the period to be served for retribution and deterrence—was only a few months.
The noble Lord was in good company in saying that it was absurd. At Second Reading the noble Lord, Lord Williams of Mostyn, put it in this way:
"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'. That is a perversion of the system. It will bring the whole system into disrepute".—[Official Report, 27/1/97; col. 1063.]
The fact that the noble Lord's case was unanswerable was made doubly clear by the fact that the self-same amendment had been moved by the Government when in Opposition, and indeed by the noble Lord, Lord Williams of Mostyn. Quite unabashed, he resisted the amendment of the noble Lord, Lord Windlesham, saying in terms, that he did not resile from anything he had said in the past. The very idea of mandatory life sentences had been condemned when in opposition by the present noble and learned Lord the Lord Chancellor and by the noble Lord who is currently the Leader of the House. Crime is one of the most difficult and complex problems confronting the Government. The advisory council proposed could give valuable assistance in solving it. I beg to move.
Lord Thomas of Gresford: In the dying days of the previous government, the protests of the Liberal Democrats over the Police Bill, the Crime (Sentences) Bill and the Scottish crimes Bill were regarded by some of your Lordships as little more than Liberal hand-wringing while the Front Benches on both the Conservative and Labour sides got on with the serious stuff—the dutch auction on toughness: who was going to be "more righteous than thou"; who was going to be tougher. But what lay behind our protests was concern at the wild swing in penal policy over a period of a mere six years.
In March 1991, the noble Earl, Lord Ferrers, introduced the Criminal Justice Bill into this House with these words:
"The main purposes of the Bill are to reform sentencing practice—the way in which a sentence is determined—and the way in which sentences are actually carried out. The sentence in an
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individual case is, of course … not a matter for Parliament. It is, after all, only the sentencer who will know all the facts of the case".—[Official Report, 12/3/91; col. 73.]
The noble Earl noted that for some offences only imprisonment was a fitting punishment. But he continued,
"for many other offences, particularly for property offences, it has long been recognised that imprisonment frequently does more harm than good. It can turn inexperienced offenders, who may be verging on the edge of a criminal career, into hardened criminals".—[col. 74.]
Those of us who sat as recorders in 1990 and 1991 will recall that we were urged by the Government not to take into account previous convictions. That caused conflict with the judges themselves, who thought the Government and the Home Office were going soft on crime. I recall a sentencing seminar in which a very senior judge advised us to ignore the Home Office—if we thought the defendant was to go to prison, he was to go there. "Let them find the places", is what he said.
At that time, again, in accordance with that philosophy, the attitude to penal reform was characterised by the noble and learned Lord, Lord Woolf, in his 1990–91 inquiry, in which he called for a civilised regime for prisons and justice for prisoners.
Then everything changed. The noble Baroness, Lady Hilton, has already referred to the 1994 Act. But it was in 1995 at the Conservative Party conference that the Home Secretary announced a change of policy—the minimum mandatory sentences and life sentences for second offences. The noble Lord, Lord Windlesham, referred to that as, "policy making by proclamation". I hope the noble Lord will forgive me if I adopt those words. Judges were thereafter characterised as soft on crime; and in response to that they filled the gaols to the point that, as the noble and learned Lord, Lord Ackner, just mentioned, the prison population has doubled and is likely soon to reach 83,000 inmates.
The White Paper, Protecting the Public, which followed the Conservative Party conference speech was discussed in this House on 23rd May, 1996. The late Lord Chief Justice, Lord Taylor of Gosforth, said, as many noble Lords will recall,
"I venture to suggest that never in the history of our criminal law have such far-reaching proposals been put forward on the strength of such flimsy and dubious evidence. The shallow and untested figures in the White Paper do not describe fairly the problems the Government seek to address. Still less do they justify the radical solutions it proposes".—[Official Report, 23/5/96; col. 1025.]
Indeed, one noble Lord was quite rightly moved to say of minimum mandatory sentences for burglary:
"That is not just; it is a perversion of justice and one which, I am sorry to say, is brought about on the basis of low motive".—[Official Report, 23/5/96; col. 1031.]
That same noble Lord later commented on automatic life sentences for pub punching or glassing 10 years after the event of an offence of unlawful sexual intercourse, and used these terms:
"I believe it to be a pity—and worse, an infinite shame—that matters of this sort are dealt with on the basis of mottos at party conferences. That demeans our society".—[col. 1032.]
It was, of course, the noble Lord, Lord Williams of Mostyn.

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Last week, I was decidedly hurt during the debate on Amendment No. 218A of this Bill to which the noble and learned Lord, Lord Ackner, referred, when the noble Lord, Lord Williams, questioned the motives of those of us who had proposed that Section 18 offences be removed from the list of mandatory life sentences. He asked:
"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".—[Official Report, 24/2/98; col. 611.]
I was so deeply hurt that I was, very unusually, moved to interrupt and to inquire whether the noble Lord's views had changed since the views that I have recounted to your Lordships expressed only a year or so earlier. The noble Lord replied:
"My view has not changed".—[col. 611.]
As the noble Lord, Lord Renton, has said, referring to the "open mind" of the noble Lord, Lord Williams of Mostyn, it is open to the point where he can hold two conflicting opinions at the same time.
This amendment seeks to set up a permanent advisory council which will take criminal penal policy away from the fighting cocks in the cock pit and set up an authoritative body which can provide a continuing view of the criminal justice system and give to both government and the public a dispassionate and factual assessment of priorities, benefits and costs upon which policy can be based.
The sort of issues that such a council should address are matters such as these. What are the causes of criminal behaviour? How can crime be prevented or reduced? How successful is our present criminal justice system in convicting offenders, and what improvements are desirable? What types of sentencing should be introduced? We have heard today that the DTOs have been introduced without any prior consultation; we debated that provision earlier.
What are appropriate sentencing levels, having regard both to other jurisdictions and to public opinion? The noble Baroness, Lady David, said that it was abominable that this country should be the worst in Europe for imprisoning young people. The noble and learned Lord, Lord Ackner, made the same point. We need to compare our penal system with those of the European Union countries with which we work so closely.
Where should resources be spent in dealing with offenders? Should they be spent on building more prisons, or on courses of rehabilitation and support in the community? How can public confidence be improved in the system of criminal justice; and in particular how should the victims of crime be treated, both as witnesses and complainants, and how should they be compensated for the hurt that they have suffered?
I hope that an advisory council of this sort would provide no more the flimsy and dubious evidence referred to by the late Lord Chief Justice in his speech as the basis of policy. I support the amendment.
Lord Bingham of Cornhill: It is surely true that in the fields of criminal justice and penal policy we all,
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wherever we sit, share the same objectives. Wherever possible, we all want delinquency to be nipped in the bud. We all want extra-judicial remedies to be applied wherever they are appropriate and likely to be effective. We all want the law to be modern, intelligible and, again, effective. We all want trials to be conducted so that the prosecutor has a proper and adequate opportunity to prove guilt and the defendant has a proper and adequate opportunity to contest it. We all want sentencing to be carried out with due regard to the traditional objectives of retribution, deterrence, rehabilitation and, perhaps now, incapacitation, having regard to the circumstances of the individual offender and the individual offence. We all want penal methods to be effective and humane.
There is very little disagreement about ends, but finding the most effective way of achieving those ends is a much more difficult task. It is a task to which we have over the years devoted immense legislative effort. In the past decade there have been seven major criminal justice statutes and over 20 more limited measures.
It is, of course, necessary that the law, practice and penal policy should be kept under review and overhauled where necessary, and it is right that governments should be free to act quickly when the need arises. But surely it cannot be wise—and it is certainly not efficient—to enact a series of measures hard on the heels of each other, often modifying or repealing the previous measure. Noble Lords will be able to think of examples of legislative measures which have been brought into force, only for their deficiencies to be quickly demonstrated, and other measures which have never been brought into force at all.
The purpose of the amendment, which I support in no adversarial or carping spirit, is to provide the Home Secretary and the Government with a reservoir of wise, informed, objective and non-partisan advice on the important and intractable problems which confront him, them and us. It need not be a recipe for delay, although a measure of deliberation is not out of place in this field. There will be a financial cost, but that must be weighed against the cost of trial and error.
The recommendations of this body will in no way fetter the judgment of the Secretary of State, but I hope and expect that they will inform and strengthen that judgment. I hope that the amendment may be recognised as a constructive and helpful proposal, intended to promote the achievement of shared objectives.
5.30 p.m.
Lord Carlisle of Bucklow: I rise to support the amendment moved by the noble and learned Lord, Lord Ackner, and his call for the setting up of an advisory council. I remind Members of the Committee that there is nothing new in this proposal. An advisory council on the penal system was set up by the noble Lord, Lord Jenkins, in, I think, 1966 and existed until 1980. I had the honour to be a member of it in its early days. Other than myself, it had a highly distinguished membership. The noble Baroness, Lady David, was a member. I thought she was, but I see she shakes her head. The late Lady Wootton was its first chairman; the

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then Bishop of Exeter, Dr. Mortimer, was the vice-chairman. Professor Radzinowich, Dr. Walker, Sir Louis Blom-Cooper and various other people involved in the penal field were members.
The purpose of that council was to attempt to take matters of penal policy out of the ambit of party political debate. I believe that its reports were of value. Reports introduced the proposals for suspended sentences. The council looked at the whole question of non-custodial sentences. There was a report on prison policy, dealing with the question of a policy of dispersement as against a policy of concentration for serious offenders. There was a report on the regime of detention centres. I notice that in a recent article Sir Louis Blom-Cooper described some of the reports as being indifferent and some outstanding. In hindsight, one only remembers the ones that were outstanding. But I do know that we were greatly fortified by the existence of that advisory council when, in 1970, under the late Mr. Reginald Maudling, I became a junior Minister in the Home Office and we were faced with a paper from the noble Lord, Lord Allen of Abbeydale, pointing out the vast likely increase in the prison population unless action was taken, which led to the introduction of community service and suspended sentences and the extension of parole. I believe that the establishment of an advisory council would assist in taking these matters out of the political arena.
The noble Lord, Lord Judd, said in an earlier intervention that we must remember that the purpose of sentencing is not only punishment and deterrence but also the rehabilitation of the individual. There is a need to remember always the importance of punishment and deterrence, but I believe that a degree of humanity is also needed. I believe that had that council, which regrettably was done away with in 1980, existed during the past decade, we should have avoided the wide fluctuations in penal policies which we have seen and which the noble Lord, Lord Thomas, mentioned. I believe we should have avoided the absurdity of mandatory minimum sentences and the extension of the mandatory life sentence.
Over that period we have seen policies recommended at one stage being stood on their head by the same government a few years later. We have seen parties change completely their approach to individual proposals, largely affected by what they believed was the public opinion of the moment. I believe that a standing advisory council would assist in avoiding those pressures and would allow issues of penal policy to become matters of common consent and agreement in this House. I strongly support the amendment.
The Earl of Longford: I rise to support strongly the amendment. The main points have already been made but, following a few remarks, I shall make a point which comes best from someone on these Benches.
We surely all recognise the extraordinary difficulty of the position in which the Home Secretary, that high-minded Christian socialist, finds himself today, when all enlightened opinion is on one side in these discussions and the passions of the so-called multitude
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are on the other. He, of course, is employed to solve the problem; he has chosen that destiny, and we wish him well.
I wrote an article for The Tablet newspaper headed, "If I were Jack Straw". It was rather impertinent to make such a suggestion and to conceive of such a fantasy. When I became Leader of this House in 1964, I had been chairman of the relevant Labour Party committee, whose main proposals were put into law a few years later. Six of the members of that committee were in the Labour government. My old friend Evelyn Waugh, a famous writer, wrote to another old friend that he was glad I was not going to be Home Secretary because otherwise we would all be murdered in our beds. Apart from the fact that I was a Member of the House of Lords, I do not believe that that was ever likely. Today the Home Secretary has his problems, and we are trying to help him.
The main facts have been pointed out. We have been told that it is reckoned that between 1993 and 2005, a period of 12 years, the prison population will double. Why? Does anyone know any reason why it should double? Someone arriving from Mars might say, "I suppose there has been a great increase in crime". According to official statistics, there is no increase in crime; there has been a decrease in crime in the past four years. If one applies to the Home Office—where, curiously, one department seems to deal with crime and another with prisons—for projections, there are not any, at least as far as I can discover.
Nevertheless, let us assume that crime will stay where it is, yet in the course of 12 years the prison population will have doubled. Some tremendous philosophy or, if you like, some bogus philosophy, must lie behind this extraordinary change in policy. We are all aware that when Mr. Michael Howard came to the Home Office he soon announced that prison works. That idea, of prison as a salvation of humanity, has been adopted all too brutally. It would be nice to say that with this enlightened Government of ours, the Labour Government, something different will come into operation, but there is no sign of it yet. I personally hope and believe that this high-minded Government will introduce some new atmosphere altogether, but there is no sign of it yet. We hope they will. We have been hoping for 10 months, but still we go on hoping. That is the situation.
I want to add a further thought. The Labour Party won a great election victory, and one of the important slogans was, "We are going to be tough on crime and tough on the causes of crime". No new meaning has yet been given to that in practice but it could be very important if interpreted in the right way. If we think of the 64,000 prisoners that there are now, we are all too well aware that a high proportion of them will offend again. We are also aware that the degree to which they offend and the extent of their offences will depend quite a lot on how they are treated in prison. So if we are looking for the causes of crime, we can find one cause, which is the maltreatment of prisoners in prison. That is something that gives a lot of meaning, in my opinion, to the attack on the causes of crime.

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So there it all is. I entirely agree with what has been said. An advisory committee would strengthen the hand of the Home Secretary, the well-meaning, Christian, socialist Home Secretary, in doing his duty. All alone, it is very hard to face public opinion and do something unpopular—on the face of it unpopular until the public is re-educated. I do not think that word was actually used today but the noble Lord has used it to me before now: the re-education of the public on penal matters. That is the essential task today, and I believe that that task will be very much facilitated by the amendment of the noble and learned Lord.
5.45 p.m.
Lord Hurd of Westwell: I would like to join those who support this amendment. Of course, as my noble friend Lord Carlisle has pointed out, there was such a body in the past. As he has also pointed out, it did valuable work; in fact it was largely responsible, as he said, for the introduction of the CSO. I do not think anyone could deny how useful, admirable indeed, a form of punishment outside prison that has been. The death of that earlier body is best recorded in the account by my noble friend Lord Windlesham in his classic work Responses to Crime. He wrote:
"In the ordinary way, no incoming Home Office minister, least of all one with the qualities and style of William Whitelaw, nor the officials advising him, would have contemplated abolishing the ACPS … But the times were not ordinary … In [the Prime Minister's] scornful view, many such bodies, known as quangos, were not simply unnecessary but represented an insidious spread of patronage, concealing at the same time the growth that had taken place in the apparatus of central government".
And so the word went out that the temple should be cleansed. I seem to remember that my noble friend Lord Renton wielded a particularly vigorous broom in that campaign, and not just the money lenders and those who sold doves but the runners of quangos were expelled from the temple. It can be noted that some of the quangos have crept back into the temple since then, but not this particular one.
I think a very strong case has been made for a body of this kind with a rather wider remit, as is now proposed, than the old ACPS, for two reasons, one of which has been given and one of which has not. It is desirable to move criminal justice policy to some extent from the sudden flash floods of emotion which follow a particular disaster or tragedy. It is silly to decry such emotion because we all share it and it is perfectly natural and human that there should be such very strong high feelings in the aftermath of a disaster. But it does not necessarily follow that these high feelings should dictate the future substance of the law.
There is an overwhelming case, it seems to me, for a pause for reflection and experienced advice. I speak as someone who was an actor in one debate, a spectator in another, the two debates following the firearms tragedies at Hungerford and Dunblane. That is the first point.
The second point is that I believe a body like this would be a good precaution and safeguard against the wear and tear which is imposed on a criminal justice system by too much adversarial argument. I join others
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who have made this point. Adversarial argument in this sphere can, like an acid, corrode the merits of a debate and the substance of a policy. We should not seek to inhibit the Home Secretary's freedom of action on consideration. Certainly, we should not seek to inhibit parliamentary discussion. I believe that there should be more parliamentary discussion on these matters. I feel that prisoners in particular are a neglected corner of our public life. I do not believe that a Prime Minister of this country has ever visited a prison. This is the first time that I have made this assertion in the hearing of a Minister of the Crown. I hope that perhaps on some occasion the noble Minister will either refute me, and I shall be delighted, or suggest that some remedy is at hand.
Of course, Parliament has a duty to society, a duty to protect society, and a duty to the victims of crime. So those of us who are interested in this subject should encourage and not stifle discussion. The question is not whether there should be discussion but whether it is sensible that it should be divided on mainly or principally party lines. I do not believe that the contest as to which party is toughest on crime is essentially a meaningful contest. I believe that those who strive for that prize are likely to find that its laurels fade quite fast.
I believe that there is now a chance for a reasoned truce because the heat, to some extent, has died out of this debate. In some political matters the line of debate seems to me to fall naturally between the parties: the role of the state, the balance between spending and taxation. These are, in a way, left/right issues and it is natural enough that they should be debated between parties as armies, as regiments, organised, divided on a left/right basis. But for foreign affairs and defence, as your Lordships know, as practised also in the other place, there is a different convention, for excellent reasons. These are not usually matters where the lines of debate are the same as the lines between parties. I believe that that should be true of debate on the criminal justice system.
The Home Secretary has to deal with, the Government has to deal with, we all have to deal with, very large numbers of people involved in making this system work. They are not servants of government and they certainly do not feel themselves to be adherents of a particular political party: the judge, the magistrate, the police officer, the prison officer, the probation officer. All these stand in somewhat different relationships to the Home Secretary and they are none of them creatures of government.
In the past few months, by good fortune, I have had occasion after a long gap to renew acquaintance with a good many of them as they go about their jobs. They are under great pressures from the nature of crime, the increase in crime, the nature of our society, the difficulties in dealing with these problems. We should not add to these people the extra pressures which come if we in Parliament tackle these matters on an adversarial and point-scoring basis. It is simply not fair

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to those who are trying to carry out the policies of the Government on behalf of the nation. I believe that this is an opportunity to make this point clear and to find a practical means of carrying it forward. I support the amendment.
Lord Lloyd of Berwick: The sentencing advisory panel proposed in Clause 67 of the Bill is welcome. It will have two effects. First, it will provide consistency and stability in the sentencing area. Secondly, it will have the effect of removing the political influence on sentencing which, regrettably, has been so apparent since just before the general election.
The amendment proposed by my noble and learned friend Lord Ackner will extend that principle to the whole realm of criminal justice in this country. For that reason, I lend my wholehearted support to the amendment. It will have the result of producing stability over the criminal justice system, as the advisory panel will in sentencing. It will, one hopes, remove once and for all from the realm of criminal justice the urge of the political say. I can see no disadvantages in the amendment and, with any luck, it will provide enormous advantages to our system of criminal justice.
Lord Merlyn-Rees: I support the general tenor of the amendment tabled by the noble and learned Lord, Lord Ackner, and notable others. I want to support it completely, but there is, I suggest, a different direction in which the proposal might go.
I still visit prisons. I am a vice-president of the Butler Trust, which was formed in honour of a great Home Secretary, whom I admired greatly. We operate in prisons and we reward what is done in prisons. I should tell the Committee that an enormous amount of good work is done in prisons. We know the bad things that go on in the prisons because we see them reported in the press. But a great deal of good work is done not only by prison officers but by civilians of all kinds. Their work is rewarded. I am a trustee of NACRO and of APEX. I keep in touch with the prisons, although I am no longer heavily involved.
In the work I have done as a politician, my involvement in prisons as Northern Ireland Secretary was greater than it was as Home Secretary. I speak on the basis of that experience. The old Advisory Council on the Penal System was extremely valuable. Sir Louis Blom-Cooper, who was a member of the ACPS from 1966 to 1978, commented in the Guardian on 2nd July 1997 that it,
"did valuable work on selected topics until it was unceremoniously 'quangoed' in 1980 by a Conservative government that abandoned its predecessor's desire for independent advice".
The Library provided me with a list with some of the ACPS's selected reports. The noble Lord, Lord Carlisle, has a similar list. They include: The regime for long-term prisoners in conditions of maximum security; Detention centres; Reparation by the offender; The length of prison sentences: interim report; Powers of the court dependent on imprisonment; Sentences of imprisonment: a review of
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maximum penalties—history repeats itself. In a pamphlet published by the Prison Reform Trust, Sir Louis Blom-Cooper and Sean McConville concluded:
"However helpful the ACPS was (and it issued some indifferent reports, as well as some outstanding ones) it … was not intended to provide the authoritative overview [that a Royal Commission could provide]".
My query is whether the resuscitation of this body will provide the overview that is required, copying the Gladstone Report of 103 years ago. I suggest that we need something that takes the overview far more than the ACPS could have done.
The pamphlet published by the Prison Reform Trust states:
"The case for a Royal Commission is compelling".
It must be broad in its terms of reference, not the individual selective reports on particular issues to advise the Home Secretary, or the Northern Ireland Secretary, or whoever it might be. As was pointed out by the noble Lord, Lord Hurd, it is then up to the Home Secretary or the Northern Ireland Secretary whether to accept the advice. The overview should be provided by a different body from the ACPS. The pamphlet goes on:
"It is quite impossible to bring any sense to penal policy without analysing how offenders are sentenced, and equally impossible to understand that without considering how offenders are selected for the criminal process by policing resources and priorities".
These are some of the general inquiries that might be carried out: the principal causes of changes in rates of offending; effective means of reducing certain crimes; maximising public benefits in repressing crime; the role of the police and prosecution; what punishment can and cannot achieve.
My query is whether a repeat of the old organisation is the right way to do what the noble and learned Lord, Lord Ackner, and his noble friends have been putting to the Committee. We need the broad view of what is happening in society; how it is changing; the crime in schools and the crime in inner cities. I represented an inner city area of a great northern city. Inner city crime is something unto itself. It is unnoted by many people because the middle classes do not live there. The teachers and the doctors come in like missionaries every day. An authoritative report on inner city crime would be extremely valuable as a general view of what is happening to society.
I support the amendment but I believe that we should give this matter a little more thought. To me, the old organisation worked at one time. I found that very valuable. But that was for one purpose. We should have a Royal Commission or something like it and resuscitate the old organisation. I support the noble and learned Lord, Lord Ackner, in his amendment.
Lord Mayhew of Twysden: I should like briefly to endorse what the noble Earl, Lord Longford, said, that this amendment is likely to help the Home Secretary. I would add that it would be likely to help all succeeding Home Secretaries.
The trouble with the great issues of crime and punishment with which the amendment, the Bill and the Committee are wrestling is that they attract powerful

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opinions which derive from prejudices and from what are sometimes called instincts. They are seldom faintly held prejudices or instincts. That makes life extremely difficult for Ministers, who are elected by many who hold these prejudices and instincts as well as others and who also have to face party conferences and form and shape their party's policies.
Some excellent phrases have been uttered in this short debate. The one on which I fasten is that uttered by the noble and learned Lord, Lord Bingham, "a reservoir of wise, informed, objective and non-partisan advice". That was echoed by the noble and learned Lord, Lord Ackner, "dispassionately, authoritatively and constructively" advising. It is not just Ministers who find life very difficult by reason of the very strong feelings—sometimes pejoratively called "instincts and prejudices"—which spring up from these great questions. Judges, too, have to exercise whatever discretion is allowed them. Does that not contract and expand according to the fashions of the politics of the day that Ministers and Parliament have given them?
I believe that if there were to be a council of this character it would—by reason of what that reservoir would contain—help to inform the public in a way which is lacking at the moment. It would also inform Ministers which would be of great help to them and to Parliament. The function of a reservoir, of course, is to be drawn on. I hope that it will be drawn on if we create this reservoir as I very much hope we shall.
6 p.m.
Lord Lowry: I promise to be brief. I speak as a former Lord Chief Justice in a much smaller jurisdiction. In that capacity I was not entirely unacquainted with politics. There was one important issue which I need not discuss, but which could easily have become a political football. On that issue I counted myself fortunate to enjoy the support of two Prime Ministers, two Lord Chancellors, a succession of dedicated law officers, one of whom has just sat down, and at least two Secretaries of State, one of whom has just addressed the Committee.
But it is not primarily from Northern Ireland that I draw the inspiration to support this amendment. My view is based on what, in recent years, has been said and done in this jurisdiction. The Committee has heard examples and I shall not repeat them. The Committee has also heard the noble Lords, Lord Carlisle, Lord Hurd and Lord Mayhew, who speak from experience and, in my respectful view, they speak wisely. Whatever precise solution is adopted, a way must be found to remove from the party political sphere the kinds of issues, examples of which have been given to the Committee. I say "party political" because the issues mentioned will often merit vigorous debate in this House and in the other place and will remain proper political issues in that sense. I support the amendment.
Lord Elton: After hearing from so many who carry so much more seniority that I do, I hope that it is not an impertinence if I join in a debate which I had no
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intention of joining until I came into the Chamber and discovered that the Committee was discussing something about which I feel with such passion.
For three years I was the Minister responsible for the Prison Service, although at a more junior level than that of other noble friends who have spoken and therefore, possibly, a little bit closer to the workface. I visited a great many prisons. The noble Earl, Lord Longford, must be right. Something must be wrong with a system which allows the current rate of growth in the prison population to persist. It cannot be right. The arguments that I used to advance as long ago as 1985 for the reason that our prison population compared so ill with those of other European countries, cannot survive in the face of the growth that has taken place since then.
Our prisons are filled with people, most of them young by the Committee's standards. As regards the millions of crimes committed by people under the age of 25 years, if Members of the Committee look at the report of the Audit Commission of November 1996—and I speak from memory and therefore subject to correction—one will find that only about 2.5 per cent. of all those criminals actually received any corrective treatment whatsoever even including the police caution. Yet those who are corrected cost a staggering amount. The effect on young people who go to prison is not rehabilitative. I wonder whether the aim of rehabilitation has been almost lost sight of by the Prison Service in the face of the weight of numbers now pressing within the cell doors.
But those people are put there for containment and punishment. That is unproductive, but produces hardened, more expert and more frequently offending criminals. They push up the statistics. That moves me. It is a tragedy because most of the people in prison need never have been there if they had received the right treatment in their early days.
All of us start more or less level. It is our experience, the way in which we exploit it and the way we are guided which decides whether we are to become criminals whether of the fraudulent, well-heeled sort of the City or of the ill-shaven, thuggish sort of the back streets. Children do not become criminals by chance but because of the effect on them of events and the failure of adults to guide them away from criminality, usually through a lack of love.
It is late. I had not intended to speak at all. Any amendment which takes the decision on imprisonment in particular out of the political forum, as my noble friend Lord Hurd said, must have my support. I beg the Minister to give it his.
Lord Goodhart: I support the amendment. As many Members of the Committee have said, the criminal justice system over the past few years has become far too politicised. As my noble friend Lord Thomas of Gresford said, in recent years and particularly in the run-up to the last election, both the Government and the Opposition parties were bidding against each other to see who could take the most repressive attitude towards crime. What is remarkable and very gratifying

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indeed is that an entirely opposite attitude has been taken on this occasion by everyone who has spoken in this debate from all parties and from the Cross Benches.
One result of the politicisation, as the noble and learned Lord the Lord Chief Justice, Lord Bingham, pointed out, is that there has been a mass of legislation. Since 1990 we have had, among other Acts, the Criminal Justice Act 1991, the Criminal Justice Act 1993, the Criminal Justice and Public Order Act 1994, the Criminal Procedure and Investigations Act 1996, the Crime (Sentences) Act 1997, all of them major pieces of legislation, now followed by this Bill, which is of at least equal significance.
This legislation concerns substantive law; the investigation of crime; the prosecution process and sentencing. But the legislation notably lacks consistency and a basic philosophy throughout. Of course, criminal justice is in a sense a political matter. The prevention and prosecution of crime and the conduct of the penal system are among the most important responsibilities of government. But criminal justice does not need to be the political battleground to the extent that it has. There is a clear need here to lower the temperature.
We now have a standing Civil Justice Council to oversee the important programme of the reform of civil procedure instigated by the noble and learned Lord, Lord Justice Woolf. Membership of that committee was announced in a Written Answer by the noble and learned Lord the Lord Chancellor last week. But surely there is a need at least as great to have a standing council on criminal justice as an authoritative and expert body to advise the Secretary of State. By advising the Secretary of State it will be advising the public. Above all, what is needed here is a better-informed public. I believe that this amendment will go a long way towards achieving that result.
Lord Henley: I feel that I shall appear to be like a character in a Bateman cartoon, as the man who spoke against the amendment of the noble Lord, Lord Ackner. I hope that I will have some support from the noble Lord, Lord Williams. when he responds and that I may offer him a degree of support in advance. Whether the noble Lord wants that support is another matter. He seemed to deal perfectly adequately with the remarks of the noble Baroness, Lady Masham, just as he dealt last week, with the utmost skill, with the amendment of my noble friend, Lord Windlesham.
Considering the eminence of all who have spoken—particularly my noble and learned friends—I speak with considerable diffidence in begging to differ on this amendment. I am filled with alarm by the very idea that party politics should be taken out of criminal justice and that it should merely be left to the consideration of the great and the good—which is, in effect, what the amendment seeks to do. We are told that the amendment's purpose is to establish a standing advisory council to inform the public. It looks much more like an attempt to imprison and impose constraints on the Home Secretary when he comes to make policy. The idea that such matters are best addressed by a council, not by democratic processes, is fundamentally wrong. They
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should be a matter for the Home Secretary, who is answerable to Parliament and responsible to the electorate. It ought to be for him to address policy and for that policy to be argued out in Parliament.
No one can argue that such matters do not receive sufficient time to be argued in Parliament. We have debated this Bill alone over some five days in Committee, and I believe that the Minister and others of your Lordships agree that it has not been debated in a party political manner. Noble Lords in all parts of the House have spoken. No support for the line I am taking has come from the Government Benches but I look forward to hearing from the Minister in due course.
Lord Renton: I invite my noble friend not to overlook that what is proposed is purely an advisory council. The Home Secretary will have to consider its advice, which he may or may not accept. In any event, the democratic process will operate and the two Houses of Parliament will have the last word.
Lord Henley: I accept that is what the amendment sets out but neither the Minister nor myself are naïve. I know exactly how a council of this sort will work and the constraints that it will impose on the Home Secretary. I speak from experience when I say that we have seen much the same in the realm of social security. The Minister will know of the Social Security Advisory Committee, which imposes constraints. It might be that there are better arguments for such a body in that case but it imposes constraints on what it is possible for the Secretary of State for Social Security to do. An amendment of this kind would impose just such constraints on the Home Secretary and limit what he could do. Once the council has pronounced on such and such a matter, it will be much harder to argue against it. We will be told that the matter has been considered a great deal by experts. The views of the people—about whom we hear so much from the new Labour Government—could be ignored.
The amendment proposes to establish a quango of the sort that was set up in the mid-1960s and which was very sensibly removed in 1980—to which my noble friend Lord Hurd referred. I do not think that this is the right moment to bring back a quango of that sort. I hope that the Minister will resist the blandishments of all who have spoken in favour of the amendment.
Baroness David: I have been provoked by the noble Lord, Lord Henley, to speak. I do not believe that any constraints would be imposed by the amendment. Such an advisory council might lead to ideas, as did the one before it. The noble Lord, Lord Carlisle, and others, mentioned community service and suspended sentences. I strongly support the amendment and hope that my noble friend the Minister will do the same.
6.15 p.m.
Viscount Tenby: I rise extremely briefly—my noble friend Lady David has done this for me—to redress the balance yet again. I warmly support the amendment in the name of my noble and learned friend, Lord Ackner. The compelling case for such an advisory council has

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been devastatingly made by distinguished lawyers in all parts of the House. It may be thought presumptuous of me to attach myself to their coat-tails. My only excuse for doing so is that I may in some small part be able to speak for the lower courts, in which I have had the honour to serve for a number of years.
Anyone sitting as a magistrate in the 1980s and 1990s will have been appalled by the changes in sentencing policy that went on during that period, as a direct result of what was seen by political parties to be beneficial to their interests at any particular time. Quite apart from the moral and judicial damage those parties caused throughout the legal system, and the lack of any identifiable long-term strategy in sentencing matters, the burden on—what are, when all is said and done—part-time contributors to the legal system was substantial.
Training programmes for one year were completely overturned by what took place 12 months later. As the prayer book says, there was no health in it. We must resist all attempts to go down a path where today's fashion dictates tomorrow's sentencing policies. That would be quite wrong. Let us step back and take a long, dispassionate and hard look at crime in all its multifarious aspects and plan an imaginative and decent strategy for the 21st century. Where better to begin than with the standing advisory council suggested by my noble and learned friend Lord Ackner?
Lord Williams of Mostyn: This area of crime and punishment and how to deal with it is central to most people's conscious existence. Whatever we do, we must take public opinion with us and we must earn and maintain confidence and trust in the judiciary, criminal justice system and penal system.
It is right that the Government should have available to them well-informed advice to inform and underpin their policies. There is nothing between us on that. The previous organisation, which lasted from 1966 to 1980, did good work. As the noble Lord, Lord Carlisle of Bucklow, may have hinted, it was not always the most speedy of mechanisms because sometimes it took three or four years to prepare its reports—but it did good work.
The real question on which the noble and learned Lord's amendment requires us to focus is how best to ensure that the Government are provided with useful and appropriate advice. He believes that the re-establishment of something like the former standing advisory council—although, I agree, with a different remit—is the answer. That is one possibility and one that needs to be thought through carefully.
Quite a lot has changed since 1980. The Government have a lot of post-1980 sources of advice. The Criminal Justice Consultative Council has representatives of the criminal justice system and is usefully underpinned by local area committees made up of local practitioners. The Trial Issues Group deals with improving the way in which the criminal justice process works and gives practical advice to the Government. The Law Commission, to which I willingly pay tribute, does masterly work on law reform.
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We also have reports—we have dealt with one in a little detail this afternoon—from the Chief Inspector of Prisons and from the Chief Inspector of Probation. As has been said, under this Bill we want to establish a youth justice board (Clause 32) which will advise the Home Secretary on the operation of the youth justice system, and in Clause 67 we propose a sentencing advisory panel. We also have reports from the Institute of Criminology; research papers from universities; international research material; and collation and co-ordination of research and statistical work in the Home Office itself.
There are, therefore, various mechanisms from which we can draw useful benefit. The real question is: would an advisory council of the sort proposed give further value? If it would, it is clearly worth considering, but not on the basis of simply looking to the past for solutions without being sure that they take proper account of more recent developments.
The noble and learned Lord's amendment indicates that the advisory council might provide advice to the sentencing advisory panel. It is probable that those who serve on both are likely to have much the same background. Will there be virtue in that particular structure? It seems to me that if an advisory council is to be of benefit, it is important to ensure that it has clear terms of reference and does not simply replicate existing sources of advice. Should it have a standing brief or should it be available to offer advice on issues specifically directed to it? Should its membership be fixed? Should it have the opportunity to co-opt further members on an ad hoc basis who might have a particular background and particular expertise to help it to consider specific issues? In the Government's view, all those matters deserve further thought. We would also have to decide whether the body should be statutory or non-statutory. I appreciate that the present form of the amendment indicates a statutory basis, unlike the former advisory council.
The noble and learned Lord the Lord Chief Justice put forward his carefully reasoned remarks which were intended to be constructive and helpful. Without. I hope, appearing presumptuous, I take his remarks entirely in that spirit and I know that the Home Secretary is of the same view.
There are a number of issues here which are worthy of further consideration and which would benefit from further discussion. Therefore, despite the criticisms made of my lack of openness, on this occasion the recidivist repents in part. As the noble and learned Lord, Lord Ackner, will appreciate, I do not make any promises. I hope that he will accept that we have attended to all the speeches that have been made this afternoon. On the basis of what I have said, with no promise but with the undertaking that I have given that we take your Lordships' observations seriously, I hope that the noble and learned Lord will feel able to withdraw his amendment.
Lord Ackner: I have not quite understood exactly what the noble Lord, Lord Williams, is offering. The lack of generosity which he has been instructed to show throughout the passage of this legislation is not

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something for which I blame him. That is his brief. No one could have carried out the obligations of his brief more courteously or more efficiently than the noble Lord, but we wish to know what the brief entitles him to say. If the brief merely says, "I will ask those in the Home Office to read Hansard", I find that particularly uninvigorating. It is not what we have been asking. On the other hand, if the noble Lord says, "If you do not divide the Committee, I will assure you that we will give favourable consideration (although we do not bind ourselves to agree with it) to what has been urged so forcefully and fully, with but one exception", that is quite another matter.
Perhaps I may deal with what the noble Lord, Lord Henley, said. As has been pointed out, he totally overlooked the word "Advisory" which occurs throughout the amendment. The council is to "advise",
"the Secretary of State on … adequacy and effectiveness".
It is to "advise" the Secretary of State on various aspects of the penal system. To show that the advisory council will not trespass on the sentencing panel, the amendment specifies,
"at the request of the sentencing Advisory Panel … providing such advice and assistance as may enable the panel the better to discharge its functions".
In relation to the attitude of the noble Lord, Lord Henley, and his party, one is reminded of the occasion when I successfully moved an amendment that there should be a right of appeal against the tariff which the judge pronounces in murder cases. That right of appeal exists in regard to the tariff for all other sentences which result in life imprisonment. The amendment was resisted although its purpose was to provide the Home Secretary with greater wisdom as to what the tariff should be, still leaving him the opportunity to make his own decision. It would have provided him with the advantage of having the trial judge's view either altered or confirmed by the Court of Appeal. The Home Secretary would not have it. This House said that he should have it and, by a large majority, we carried the amendment, but it was reversed in the other place.
What were the then government resisting? They resisted the giving of advice to the Home Secretary which he could accept or reject. But the Home Secretary might be embarrassed by that advice because, stupidly, he might go contrary to it and then he would be open to criticism in this House and outside it. The approach of the noble Lord, Lord Henley—I do not say that it is the approach of the noble Lord, Lord Williams, because he has not committed himself—is, "Don't embarrass me with advice; allow me to be as pigheaded as I wish to be". I find that a very unattractive stance. That is why I ask the noble Lord, Lord Williams, to be a little clearer about exactly what is the nature of his generosity, if any, before I decide whether or not I shall seek to divide the Committee.
Lord Williams of Mostyn: I thought that I had made it as plain as I possibly could by saying, "There are a number of issues here which are worthy of further consideration and which would benefit from
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further discussion". I think that that is fairly plain. I cannot guarantee "favourable consideration" because the noble and learned Lord would not expect me to come to a conclusion, standing here as I do; nor would he expect the Home Secretary to come to an instant conclusion because that would be contrary to the theme of the advice that he has been giving us so carefully which is, "You may listen carefully before you make up your mind".
Lord Ackner: Then I shall remove the word "favourable" and ask whether the noble Lord would accept the word "sympathetic". That in no way confines him to anything. It merely means, "Consider it with an open mind", but says that in one word. Perhaps the Minister will comment on that suggestion.
Lord Williams of Mostyn: We will consider this with an open mind because we believe the issues here are worthy of further consideration and would, I respectfully repeat, benefit from further discussion. So, the word "open" is attached to the word "mind" in the context of "further consideration and further discussion".
Lord Ackner: With the advantage of those further and better particulars, I am prepared to ask leave to withdraw my amendment, although obviously intending reculer pour mieux sauter should that be necessary.
Amendment, by leave, withdrawn.
6.30 p.m.
Clause 66 [Sentencing guidelines]:
[Amendment No. 257 not moved.]
[Amendment No. 257A had been withdrawn from the Marshalled List.]
Clause 66 agreed to.
Clause 67 [The Sentencing Advisory Panel]:
Lord Henley Lord Henley moved Amendment No. 258:
Page 53, line 33, at end insert—
("(1A) The panel shall contain—

(a) at least two members who have experience of working with or on behalf of victims of crime,

(b) at least one member who is a serving circuit or High Court Judge,

(c) at least one member who is a police officer,

(d) at least one member who is a magistrate, and

(e) at least one member who has experience of working as a small businessman.").

The noble Lord said: The Committee comes to the sentencing advisory panel. It is an advisory panel to which I can offer a degree of support, unlike the panel that the Committee spent a little over an hour discussing and, I daresay, will spend more time discussing in due course. At the moment the clause provides that the noble and learned Lord the Lord Chancellor shall, after consultation with the Secretary of State and the Lord Chief Justice, constitute a sentencing panel to be known as the sentencing advisory panel and appoint one of the members of that panel as chairman.
At this stage obviously the noble and learned Lord is unable to say who or what kinds of people are likely to be appointed. In general, I am not in favour of a prescriptive provision of this kind setting out precisely who should be sitting on the panel.
I move the amendment purely as a probing amendment to seek guidance from the Government as to what kinds of people are to be appointed to the panel and what kinds of interests they are expected to cover. I also make the more general point that it is very important that the various classes that I specify in the amendment should be represented in one way or another; in other words, those who have experience of working with or on behalf of victims of crime such as circuit or High Court judges, police officers, magistrates or small businessmen.
The problem about producing a list of this kind—the noble and learned Lord will no doubt make the point absolutely clear—is that it can be as long as one's arm and it will still not feature all those who should be included. I recognise the demerits of the amendment and have no intention of pressing it or anything like it, but I should be grateful if the noble and learned Lord could indicate the Government's thinking about the kinds of people to be included and the range of their experience. I beg to move.
The Solicitor-General (Lord Falconer of Thoroton): As the noble Lord indicated, Amendment No. 258 raises questions about who will serve on the new sentencing advisory panel. I am grateful to the noble Lord for the suggestions contained in his amendment and for giving the Government an opportunity to state their thinking in relation to the composition of the panel. Under Clause 67 appointments to the panel will be a matter for my noble and learned friend the Lord Chancellor to decide in consultation with the Home Secretary and the Lord Chief Justice. No final decisions have yet been taken on the composition of the panel. I can confirm however that the matter is under discussion between the Home Secretary, the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice.
It may assist if I set out in outline the role of the panel and how we see it working as this will inform any decision on the membership. The panel has been set up to provide informed, well researched and objective advice to the Court of Appeal. It needs to be independent yet capable of reflecting the view of a wide range of interested parties and acting as a conduit for those views to the Court of Appeal. It must not however be seen to be dominated by any particular sectional interests. The panel has been set up to promote consistency in sentencing by providing the Court of Appeal with some additional but very important tools which will assist in the framing or revision of guidelines. It will be important for it to have the right mix of "coal face" experience and broad-based knowledge of the criminal justice system. At the same time however it should not be too big and unwieldy if it is to act quickly and in a corporate fashion as we want it to. This means that we are probably looking at about 12 members. Clearly, that limits to some extent the
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range of people and groups that can be represented on the panel. The panel however will consult widely so those whose interests are not directly represented on it will still have every opportunity to feed in their views.
The kind of people we expect to be on the panel may include for example academic lawyers, researchers, sentencers and sentence providers and one or two people completely independent of the criminal justice system. The Government are very interested to hear suggestions made by noble Lords tonight about possible membership. I am sure that the noble and learned Lord the Lord Chancellor will take those into account, along with the views of the noble and learned Lord, Lord Bingham, and the Home Secretary with whom he is in discussion. Similarly, on the question of who will be consulted, it is important that we do not seek to be too prescriptive at this stage about membership of the panel. Appointments to the panel will not be made until the Bill receives Royal Assent. It would be unfortunate if at some stage in the future we were prevented from appointing an eminently suitable candidate simply because he or she did not fit into some pre-determined category.
I hope that that explanation helps the Committee to understand how the Government see the panel at the moment. I hope very much that the noble Lord, Lord Henley, will not seek to press his amendment.
Lord Dholakia: I have just returned from a conference in Swindon of the Criminal Justice Consultative Council. The conference was very much devoted to race issues. One of my concerns is the victims within the criminal justice system, particularly those in ethnic minority communities. At Second Reading I said that 16 to 17 per cent. of the prison population consisted of black people and that 24 per cent. (or one in four) of female prisoners were black. A number of studies, including one by the department of criminology at the University of Oxford, illustrate discrepancies in the sentencing of black people. I ask the Minister to ensure that when this matter is considered people from the ethnic minorities in the criminal justice system are represented in the membership of the advisory panel. I also note that the Probation Service is omitted and suggest that that should be put right.
Lord Falconer of Thoroton: I am grateful for the comment of the noble Lord, Lord Dholakia, about ethnic minorities and victims. The panel will have certain members but it will consult people before it expresses its views to the Court of Appeal about the guidelines that it proposes. I cannot say at the moment whether these particular ideas will be taken on board, but I can assure the noble Lord that they will be considered. However, for the reasons that I have given I believe that it is wrong at this stage to be too prescriptive about both the panel and the consultees. The consultees may vary from case to case, but I assure the noble Lord that his remarks will be taken into account.
Lord Henley: I am grateful for the intervention of the noble Lord, Lord Dholakia. I agree that my group

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does not include those he mentioned. One could go on lengthening the list so that it becomes almost as long as one's arm. I do not recommend that approach, as I hope I made clear in moving the amendment. I do not believe that one should set out a prescriptive list. For that reason, therefore, I am very grateful for the explanation that the noble and learned Lord has given about the consideration that will be given to this matter when the panel is set up. I am entirely satisfied that all those who should be included will be included or, if they are not included, that they will certainly be consulted by the panel as and when appropriate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 258C:
Page 53, line 36, at end insert—
("() The Panel may at any time, and shall if directed to do so by the Lord Chancellor, propose to him that guidelines for the sentencing of offenders by magistrates' courts be framed for any category of summary or either-way offence.").
The noble Lord said: This replaces an amendment I originally tabled as Amendment No. 257A which is now withdrawn. I am advised that it is possibly a better attempt to achieve what I tried to achieve in the earlier amendment. I daresay that again it will be found not to be the best way of dealing with the matter, but no doubt I can have advice from noble Lords when they respond.
The amendment seeks to achieve a greater degree of consistency in sentencing in magistrates' courts—something which, I understand, is dealt with in other courts by the sentencing advisory panel. My noble friend Lady Anelay will know from her personal experience that there is considerable inconsistency from one court to another. For example, someone may be sentenced in magistrates' court A for a serious road traffic offence and told in no uncertain terms by the Bench that, if he appears again before them having committed a similar offence, he will definitely lose his licence for six months or a year, but when, having repeated the offence, he appears before another magistrates' court 100 miles away, he is not dealt with appropriately. The original warning will therefore have had no effect and no meaning whatsoever.
The amendment will introduce greater consistency to the magistrates' courts while ensuring that the courts still have discretion to act as they wish, so they are not bound to follow the advice absolutely. It is important that they should have that discretion but there should also be a degree of consistency. I beg to move.
Viscount Tenby: I support the principle of the amendment in trying to achieve an overall standard throughout sentencing. It is undoubtedly a scandal that, according to various statistics, a person has a far greater chance of going to prison if he appears before court A for a shoplifting offence than if he appears before court C in another part of the country, where he may have his wrist slapped and get away with a small fine. That is clearly unacceptable. In the past, people have been
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inclined to be indulgent about the situation, saying that it is funny and quaint. I do not find it so. There is a great deal to be said for uniformity, at least in principle.
However, noble Lords, particularly those who are involved in these matters, know that there are regional peculiarities and differences. If a certain area is suffering from a plague of offences arising from football hooliganism, then one might be more severe in sentencing than if it were a rare occurrence. I understand the difficulties facing those who are trying to frame a workable amendment, but the principle is a good one.
Lord Falconer of Thoroton: I fully understand the principle underlying the noble Lord's amendment, to which the noble Viscount, Lord Tenby, has spoken so eloquently. In the Bill, the sentencing guidelines drawn up by the Court of Appeal would cover indictable-only offences, those offences which can only be tried in the Crown Court, or offences that are triable each way, in a Crown Court or a magistrates' court. They would not apply to summary-only offences which can only be tried in the magistrates' courts. The present position is that guidelines for summary offences are drawn up by the Magistrates' Association.
When we developed our proposals, we specifically considered the position of the magistrates' court and consulted the noble and learned Lord the Lord Chief Justice. His view was that it would be inappropriate for the Court of Appeal to take on this role and disrupt the current arrangements, given that summary-only offences almost never came before that court. We agreed with that view and concluded that it would be better to retain the existing position whereby the Magistrates' Association, which has great experience in this area, draws up such guidelines. It is worth underlining that, as the Bill is drafted, the Sentencing Advisory Panel advises the Court of Appeal and no other body, and it is not clear from the amendment—although I do not take this as a major point—who is supposed to produce the guidelines envisaged by the amendment.
Noble Lords might say that we should provide for the Sentencing Advisory Panel to have a role in advising the Magistrates' Association in these matters, but the Magistrates' Association is a non-statutory body and it would therefore be difficult to frame statutory responsibilities around it. In practice, the Magistrates' Association may wish, when considering guidelines for magistrates' courts, to have regard to the advice produced by the panel and the guidelines produced by the Court of Appeal. I am sure that fruitful discussions could take place between the two bodies: indeed, the Magistrates' Association is likely to be one of the bodies which the panel must consult when consultees are identified.
I fear that it is right to leave matters on that basis. These provisions are not intended to undermine the position of the Magistrates' Association in this regard, and it is very difficult to incorporate the Sentencing Advisory Panel by statute in relation to the Magistrates' Association. I hope the noble Lord will agree to withdraw the amendment.
Lord Henley: The noble and learned Lord is relatively sympathetic. I accept that the amendment is

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probably defective in some way but the noble and learned Lord did not offer a solution to deal with the problem of inconsistency which everyone, including the noble Viscount, Lord Tenby, recognises.
Can the noble and learned Lord and his colleagues in the Home Office between now and Report give some little consideration to whether there is not a measure that one could introduce which might go some way towards achieving what I wish to achieve; or is he saying that he regrets that there is very little that can be done?
Lord Falconer of Thoroton: I am saying that I regret that there is very little that can be done through the mechanism that is being proposed or any other mechanism that one can think of in relation to the clause. The reason for that is that the Sentencing Advisory Panel is there to advise the Court of Appeal. We consulted the Lord Chief Justice and he has said that it is inappropriate to expand the panel's role or to give an increased role to the Court of Appeal.
We have thought carefully about how we can help the magistrates' courts through this mechanism and we have concluded effectively that it cannot be done. I regret it, but I am afraid I cannot give any comfort at all in respect of the amendment. The noble Lord may have to take his medicine now.
Lord Henley: I thank the noble and learned Lord for his openness in offering his regret. I will consider the matter carefully between now and Report and decide whether to come back to it. If not, I will take my medicine like a man. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 258A:
Page 54, line 7, at end insert—
("() Judges and magistrates shall not be required to adhere to, or even to consider, any guidelines proposed by the Panel for the benefit of the Court of Appeal.").
The noble Lord said: The amendment makes absolutely clear that the courts still have a discretion in sentencing. It does not conflict in any way with earlier amendments but addresses the situation in all courts, whether magistrates' courts or otherwise.
The amendment seeks to make the situation clear on the face of the Bill, which is the important point; that the courts must make decisions for themselves, even though they follow the guidance. In the end the courts have to make the decisions. I beg to move.
Lord Falconer of Thoroton: The effect of the amendment is to make clear that sentences need not have regard to advice from the Sentencing Advisory Panel. I make it quite clear that there can be no question of sentences being required or expected to have regard to the panel's advice to the Court of Appeal. The panel's advice is just that, advice to the Court of Appeal alone.
The Court of Appeal will be required to have regard to the advice of the panel. However, it will be for the court to decide how much account should be taken of that advice, and it may even reject it. Sentencers will
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and should have regard only to the final sentencing guidelines produced by the Court of Appeal. We do not believe that it is necessary to make that clear on the face of the Bill.
I hope that, given those assurances, the noble Lord will accept that the amendment is unnecessary.
Lord Renton: I listened with great interest to the discussions on this and the two previous amendments. All those who have been in practice, like Members on the Front Bench, know perfectly well that everyone undertaking judicial work at first instance is at the mercy of the Court of Appeal when it comes to sentencing principles.
I find the situation slightly strange because the Court of Appeal—what should be called the Criminal Division of the Court of Appeal, but for some reason generally is not—is presided over by the Lord Chief Justice and not by the Master of the Rolls, who presides over the civil side. The Lord Chief Justice is very influential in laying down the sentencing policies decided upon by the Court of Appeal. They are binding on the courts of first instance.
We now find that the Lord Chief Justice is to have another capacity. Not only will he be consulted on who should constitute members of the sentencing panel, but, under subsection (4), he will be consulted on the advice to be given by the panel. Therefore, the Lord Chief Justice will have a dual capacity, dealing with the same matters in a different way.
I hope and believe that the work which he does as Lord Chief Justice presiding over criminal decisions in the Court of Appeal will be dominant and that he will not have to submit himself to the relatively minor part which he may play in the work of the sentencing panel.
Lord Falconer of Thoroton: I agree with the noble Lord's observation that all sentences are at the mercy—if that is the right word—of the Court of Appeal. That will remain the position even after the Bill becomes law. I understand that as regards the sentencing advisory panel, the Lord Chief Justice will have two roles. First, he is to be consulted on its membership. Secondly, under subsection (4), where there is a reference to the panel or a reference originating from it, the Lord Chief Justice shall be consulted by the panel as to whom it shall then consult before giving its advice. I believe that that is a comparatively minor involvement in the deliberations of the panel and is not nearly as important as the role he will play in presiding in the Court of Appeal, determining what the sentencing guidelines should be.
Lord Renton: I am grateful to the noble and learned Lord for his explanation. He has made the position quite clear.
Lord Henley: I, too, am grateful to the noble and learned Lord for those two explanations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 67 agreed to.
Clause 69 agreed to.
Viscount Tenby Viscount Tenby moved Amendment No. 258B:
Before Clause 80, insert the following new clause—
REMOVAL OF FACE COVERINGS
(" .—(1) Section 60 of the Criminal Justice and Public Order Act 1994 is amended as follows.
(2) In subsection (1), after the word "vehicles" there are inserted the words "and to demand the removal of face coverings".
(3) In subsection (4), at the end there is inserted—
"(c) to demand the removal of face coverings that might intimidate other persons or which might inhibit subsequent identification of offenders.".").
The noble Viscount said: In the unavoidable absence of my noble friend Lord Carnarvon, for which he tenders his regrets to the Committee, I move Amendment No. 258B. When my noble friend first raised the matter by way of a Starred Question on 5th February, I detected support for it from all sides of the House. I hope that that sympathy will be reflected in the Minister's response today.
The issue is simple. Many of those engaged in unlawful disputes—for example, on demonstrations such as the National Front rally in Dover last November, in crowd hooliganism as recently occurred at a football match in Bristol in the autumn, or in an armed robbery—use face and head coverings of various kinds. There are two objectives in doing so. The first and most obvious is to escape detection, a result far more likely with the use of close circuit TV and videos were they not to adopt such tactics. But there is another reason which is in a way even more sinister. It is to instil fear in those unlucky enough to be in the way of such deplorable activities.
Although the police have been aware of the problem for some considerable time, the Association of Chief Police Officers is against the creation of an offence for wearing such head and face coverings. In law, it would present considerable difficulties because some people might wear protective clothing for a variety of lawful reasons. I refer, for example, to a scarf wrapped around the face to counter toothache; a covering to ameliorate some other ailment; or—who knows?—even a motor cycle dispatch rider attempting to enter the Home Office with letters of support to Ministers for their sympathetic consideration of amendments to the Bill! But this is a serious matter which invites a speedy resolution.
The amendment, which carries the support of the Association of Chief Police Officers and the Police Federation, seeks to amend Section 60 of the Criminal Justice and Public Order Act 1994. It would permit a police officer to demand the removal of face coverings before crime and disorder took place. I beg to move.
Lord Henley: I support the amendment. The noble Viscount rightly reminded the Committee that we discussed the matter when the noble Earl, Lord Carnarvon, raised it at Question Time on 5th February. I then made it clear that if the Government wished to make changes through the mechanism of the Bill we would offer sympathetic support to try to ensure an easy
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passage. Having offered my support, I shall be interested to hear what the Minister has to say. Are the Government able to proceed with the Bill, or do they believe that further work and consultation is required before proceeding down this route?
Lord Hylton: I joined in the Starred Question on 5th February and suggested that a little care might be needed with the wording of any effective piece of legislation on this issue. My noble friends who have tabled the amendment have taken care to distinguish between people who for one reason or another are legitimately covered up and those who are not. I support the amendment.
Lord Williams of Mostyn: I am grateful to the noble Viscount, Lord Tenby, and to the noble Earl, Lord Carnarvon, who have discussed the problem with me; the noble Earl before his Starred Question on 5th February and the noble Viscount subsequently. On 5th February, on behalf of the Government I made it plain that when we had representations from the Association of Chief Police Officers we would give its views careful attention. We have received its views and it supports the measure, as does the Police Federation.
The result would be that Section 60 of the Criminal Justice and Public Order Act 1994 would be amended to give the police the power to demand the removal of face coverings in certain circumstances. There arises the question of a safety device, about which the noble Lord, Lord Hylton, was concerned on 5th February and tonight, as to how one deals with individual liberties and strikes a proper balance between that and the reasonable requirements of the police. The trick here, so to speak, is that the power is only exercisable within a given locality for up to 24 hours at present and only on the authority of an officer of at least superintendent rank, where that officer "reasonably believes" that violent incidents may be prevented by using that power. I should point out to Members of the Committee that that superintendent rank may well be reduced to that of inspector or above later this year. I just thought that I ought to mention that detail.
Our stance is that we believe there is a mischief here. People wear balaclavas or crash helmets partly to avoid identification and partly to intimidate. It is not limited to one category of demonstration quite often found, perhaps, on inner-city estates—for example, National Front marches and those of such organisations. Therefore, we wish to consider this as a matter of urgency with a view, if the practical issues can be resolved, to returning with a government amendment at a later stage of the proceedings on the Bill. On the basis of that undertaking, I hope that the noble Viscount will feel able to withdraw the amendment.
Viscount Tenby: I am grateful to the Minister for his helpful reply and to other Members of the Committee who have taken part in this brief but helpful discussion. I do not propose to rehearse the grounds involved. In the absence of my noble friend and in view of the extremely helpful remarks made by the Minister, I shall look forward with anticipation to future developments in this

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particular area. At the same time, because it is not my amendment, I suppose that I should reserve the right to return to the matter at a later stage. However, I hope that that will not be necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.00 p.m.
Clause 80 [Remands and committals of children and young persons]:
Baroness David Baroness David moved Amendment No. 259:
Page 67, line 35, leave out subsection (1) and insert—
("(1) The Secretary of State may, by order made by statutory instrument, amend subsection (5) of section 23 of the 1969 Act (remands and committals to local authority accommodation) so that, for the words "a young person who has attained the age of fifteen" there is substituted any one of the following—

(a) the words "a young person aged fifteen";

(b)) the words "a young person who has attained the age of fourteen":

(c) the words "a child or young person who has attained the age of thirteen"; or

(d) the words "a child or young person who has attained the age of twelve".

(1A) Any order made under subsection (I) shall revoke any previous such order, shall be laid in draft before Parliament, and shall be subject to annulment by resolution of either House.").
The noble Baroness said: The intention and the effect of the amendment would be to require the Government to use local authority secure places and to remove remanded 15 and 16 year-olds from Prison Service custody before introducing secure remand for 12 and 14 year-olds.
Clause 80 amends the law to enable courts to remand juveniles aged 12 and over direct to local authority accommodation. Clause 81 provides for 15 and 16 year-old girls and "vulnerable" 15 and 16 year-old boys to be remanded to local authority secure accommodation if a place is available; and for other 15 and 16 year-old boys to be remanded to Prison Service custody.
Organisations working with young offenders have expressed concern about Clause 80 in particular because they consider that the Government should not use local authority places to lock up more 12 and 14 year-olds before removing all 15 and 16 year-olds from the prison system to secure accommodation. Sending juvenile defendants to penal establishments has long been regarded as a recipe for criminal contamination, intimidation, and, all too often, self-harm and suicide attempts. Since the mid-1970s there has been bi-partisan agreement that remanding this age group to Prison Service custody is undesirable and that, when remanded juveniles need secure conditions, they should be held in local authority secure units staffed by residential childcare workers.
I believe that the noble Baroness, Lady Masham, mentioned earlier the research document of the Howard League which showed how harmful prison was to 15 year-old girls. It is terribly important; indeed, we should not start locking up even younger people or putting them in secure accommodation when those
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places could be used for 15 and 16 year-olds. This time, I hope that my noble friend the Minister will accept that we have a point. I beg to move.
Viscount Colville of Culross: My amendment has been grouped with Amendment No. 259. With the leave of the Committee, I hope that I can ungroup it because it deals with a totally different subject and I was busy when the groupings were announced. I trust, therefore, that I can move it separately in a moment. I should be most grateful.
The Lord Bishop of Lichfield: I feel that I must rise to my feet again to support the noble Baroness because of my very grave concern that Clause 80. as she pointed out, will make it possible for children as young as 12 to be remanded to a young offender institution or prison rather than to local authority secure accommodation. While I am aware that the provision refers to serious crimes, we are still talking about children and young people who have either not yet been convicted or, if they have been, are still awaiting sentence.
Members of the Committee may or may not be aware that the Children's Society—one of the other organisations to which the noble Baroness referred—is a voluntary society of the Church of England and the Church in Wales, which has long been concerned about the current state of the law under which 15 year-olds can be, and are, remanded to prison.
In November last year, the Children's Society launched its Remand Rescue Initiative, a national campaign to end remand to prison for young people and to help those already imprisoned on remand. This campaign is not just one of persuasion: it is based on the society's work in Feltham Young Offender Institution and in Doncaster Prison, which it plans to extend to other prisons.
In the first six months of work at Feltham, the Remand Rescue Initiative worked with 176 15 and 16 year-olds. It was found that half of them had previously suffered sexual or physical abuse or bullying, or had engaged in self-mutilation of one sort or another. While something under a quarter had actually been in local authority care, 86 per cent. were known to social services, and 62 per cent. had not been attending school, either because they had been excluded or because they had got into the way of truanting. All these young people had either been charged with serious offences or were awaiting sentence following conviction. Some of those charged would, presumably, be acquitted. It is important to bear in mind that, according to a study by the Association of Chief Officers of Probation, only 12 per cent. of young people remanded into custody had committed violent offences. Yet here they all are, in prison, despite the fact that we have abundant evidence to show that it does them harm, and equally abundant evidence which shows that the constructive alternatives to prison remand have a positive effect.
The inclusion in the Criminal Justice Act 1991 of provision increasing the likelihood that such young people would be remanded to secure local authority accommodation rather than prison came at a time, which Members of the Committee may remember, of high

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concern over the suicide of the 15 year-old Phillip Knight, who was on remand in custody. His death is to our shame; and it is deeply to be regretted that he was not the last young person in prison to put an end to his life.
There have been calls for an end to remand into prison for young people from the following: the Chief Inspector of Prisons, Sir David Ramsbotham; from the General Secretary of the Prison Governors' Association, David Roddan; and from the Chairman of the Magistrates' Association's Youth Committee, Lynne Ravenscroft. They are not sentimental people, as bishops may be expected to be. They know what is required of a criminal justice system and they do not shy away from ensuring a necessary rigour of regime. If they believe that the current system is treating young people badly, how can we in this Bill continue along the same path?
Still more, how can the Government be contemplating catching even younger people in the net of remand into prison? Of course I am aware that the Government, all governments, are perpetually being asked to provide resources for a variety of needs. Previous governments have failed to do what it takes to ensure that local authorities can provide the required secure accommodation—I want to underline that—but some government, some day, must get this job done. In the meantime I am convinced that we should not be extending the scope of the problem to include 12, 13 and 14 year-olds.
The Government may say that the wording of the clause reflects their awareness of the vulnerability of children as young as 12, but I have to say that I would need to hear from the Minister a good case indeed for these changes before I could be persuaded of their rightness. I strongly support the amendment.
Baroness Hilton of Eggardon: The right reverend Prelate has made the case much more powerfully than I can. I entirely support what he said in particular about Feltham, which I have visited on a number of occasions. In addition to the bullying, self-harm and even suicides of young boys, the regime is wholly inappropriate for 15 and 16 year-olds who should be attending school, who have truanted for many reasons and who are often illiterate. If they are lucky, they receive one hour a week of education in reading and writing. That is totally inappropriate to provide them with skills to cope with life thereafter. Those who are not bullied or commit suicide or who do not subject themselves to self-harm, are probably those who adapt to living in this regime with older boys of 18, 19 and 20. In many ways they are being hardened, adapted and taught to lead the lives of criminals. In my view it is wholly inappropriate to remand 15 and 16 year-olds to establishments such as Feltham, although the staff there do the best they can with something like a thousand young boys and young men who are locked up there. I urge the Government to think again about the need to remand 15 and 16 year-olds to prison service custody.
Lord Addington: I had not planned to intervene in this debate but I visited Feltham when I was working
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for the Apex Trust a few years ago. The inmates were probably some of the most aggressive that I ever saw when considering penal reform. There were young, aggressive males who were keen on bullying and establishing their status. The environment in such an institution is probably tougher than in an adult prison. I strongly recommend that the Government consider these amendments as otherwise those who are most vulnerable will be accommodated with those who are most likely to oppress them.
7.15 p.m.
Lord Williams of Mostyn: Perhaps I can clear up one misunderstanding, if I have it correctly. Clause 80 will not allow 12 year-olds to be remanded to prison or to young offender institutions. They can be remanded only to local authority secure accommodation.
We recognise absolutely the need to deal with the remand to prison of 15 and 16 year-old boys. Our policy is quite unambiguous. We wish to move to a situation where the practice is no longer necessary. The 1991 Criminal Justice Act provided for the eventual replacement of courts' powers to remand 15 and 16 year-old boys to prison with a new power to remand 15 and 16 year-olds, boys or girls, to local authority secure accommodation. This power was widened by the Criminal Justice and Public Order Act 1994 to include 12 to 14 year-olds. As the present legislation stands, the power cannot be applied to this age group before it is applied to 15 and 16 year-olds.
The reason 15 and 16 year-olds are still being remanded in what the Government believe are inappropriate conditions is mainly the lack of suitable local authority secure accommodation. There has been a building programme which has added 170 places to the local authority secure estate but that has been outstripped by the numbers of 15 and 16 year-old boys on remand in prison which has stood recently between 220 and 270. What we therefore want to do is to start the process of implementing policy on court-ordered secure remands in stages. This means that the courts' power to remand in these circumstances will apply to all 12 to 14 year-olds, 15 and 16 year-old girls and 15 and 16 year-old boys who are adjudged by the courts to meet the vulnerability definition in Clause 81(3). For the moment we cannot extend powers to the remaining 15 and 16 year-old boys because at present there is no available local authority secure accommodation.
Quite reasonably the right reverend Prelate and the noble Baronesses stressed the urgency of the situation. On 15th October officials in the Home Office wrote to all directors of social services in England and Wales, representatives of the Local Government Association, the Welsh Local Government Association and the Association of Directors of Social Services for England and their Welsh equivalents to inform them of the Government's view. There was a first meeting with the associations and officials on 18th November to discuss questions of finance and the review that the Government have initiated—I mentioned it to the Committee earlier this evening—of the juvenile secure estate. It was agreed that a joint approach was required. There was a

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second meeting on 13th January this year and now further work is being done under a technical group made up of representatives from central and local government.
The review of the juvenile secure estate is part of the Government's comprehensive spending review. We are reviewing the whole range of secure accommodation for young people, including local authority secure units. We want to make sure that all assets and resources are used to the best effect, in particular—I refer to the point made by the noble Baroness, Lady Hilton—in meeting educational needs and tackling offending behaviour.
The outcome of the review, which is due shortly, will, of course, be considered as a matter of urgency by the Government. One of the points we shall have to decide is the nature of the further expansion of the secure estate. I have gone into a little detail on dates, which I know perhaps is not normal. I have done that to indicate that we recognise the concerns that have been expressed and to indicate the seriousness with which the Government are determined to do away with remanding 15 and 16 year-old boys to prison custody.
Baroness David: I shall need to read that response carefully. It seems to me that perhaps the Minister has the same horror that I have of 15 and 16 year-olds being in prison, and particularly 15 year-old girls. I am quite horrified at 12 to 14 year-olds having to be kept in secure accommodation, although I know that some of them can be real tearaways and need to be kept in secure accommodation, at least for a time. I hope that the Minister will not pay too much attention to public opinion. It seems to me that parliamentarians should lead public opinion and not bow down to it. Capital punishment would not have been got rid of if parliamentarians had not led public opinion. I think that too much attention has been paid to that lately. That is a great pity.
I was extremely grateful for the right reverend Prelate's speech in which he said everything better than I did. I remind my noble friend the Minister that all the children's associations, not only the Children's Society, feel strongly about a great deal of what is happening in this Bill. I have had an interesting response and I am happy to read it. Therefore, temporarily at least, I can only withdraw this amendment; but I am not committing myself to not coming back to it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 260:
Page 67, line 39, at end insert—
("() In subsection (5) of section 23 of the 1969 Act, for the words "serious harm from him" there shall be substituted the words "the risk of his committing further serious offences".").
The noble Viscount said: I offer this amendment to the noble Lord, Lord Williams, in the hope that it may be helpful. He knows my views about the adequacy of local authority secure accommodation and the number of occasions on which it can be used. I was extremely interested to hear what he has just said about the review that is being carried out. He told me last week—if I
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understood him rightly—that the youth court has a duty to remand children and young people to local authority secure accommodation. It is indicative of the muddle into which this legislation has arrived—it was discussed in the major debate earlier today—that had the noble Lord been talking about Section 23 of the Children and Young Persons Act 1969 which was inserted by the Children Act 1989, he would have been right. Another Section 23 has since been inserted by the Criminal Justice Act 1991. That does not put any duty on the youth court to remand children and young persons to local authority secure accommodation.
In the Bill we look forward to consolidation. That is the purpose of Schedule 6. At present, two places in the 1991 Act refer to the expression "protect the public from serious harm". The first is in Part I. The reference goes back to the provision for longer than normal sentences under Section 2. The interpretation is found at the end of Part I.
Very sensibly, I think everyone would agree, the Court of Appeal said that before sentencers pass longer than normal sentences they require some fairly extensive reports, often of a psychiatric nature, or at the very least a substantial pre-sentencing report before such sentencing is justified. The same phrase has been inserted into the new Section 23 of the Children and Young Persons Act 1969. Technically speaking, it does not occur in the 1991 Act. It has merely been inserted retrospectively into the 1969 Act. Nevertheless, the phrase is exactly the same.
We want to make a differentiation. It is difficult enough for youth courts to remand children and young persons to local authority secure accommodation. Since it is a matter of remand instead of bail, the matter has to be dealt with urgently. Therefore there should be no reference to having to obtain reports for psychiatric assessments or anything of that kind at that stage. That requirement comes when sentencing or other disposals are required.
In advance of consolidation, I suggest that we should use a different phrase. I believe that the words I have put forward mean exactly the same but they do not carry the overtones of longer than normal sentences in Part I of the 1991 Act. Equally, they would not carry the overtones of requiring extensive and complicated reporting before the powers were implemented. I beg to move.
Lord Williams of Mostyn: I am grateful to the noble Viscount for his explanation. Indeed, he had notified me of the intention behind the amendment.
The background to the secure remand criteria is that the 1991 Act has within it a test for remands to local authority secure accommodation which has two criteria: one related to the alleged offence; the other to the need for public protection.
The offence-related criterion has two elements. The young person concerned must have been charged with or convicted of a violent or sexual offence, or an offence punishable, were he or she an adult, with imprisonment for a term of 14 years or more. The second element is that the person has a recent history of absconding while

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remanded to local authority accommodation, and is charged with or been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded. The first covers the more serious offenders. The second limb covers young people who, while on remand to local authority accommodation, continue to cause problems.
We believe that court-ordered secure remands should be restricted to the most serious cases. The seriousness of the offence or the persistence of the offending behaviour is not itself a sufficient justification for such a remand whether this be to prison or to local authority secure accommodation. In addition, therefore, the Act requires the court to be of the opinion that only such a remand would be adequate to protect the public from serious harm from the young person. In relation to sexual or violent offences, "serious harm" means death or serious personal injury, occasioned by further such offences committed by the young person. "Serious harm" is not defined in relation to other offences. However, the definition for sexual and violent offences gives an indication of the gravity of the harm to which the public would have to be exposed from a young person in other circumstances before the test is likely to be satisfied.
The amendment is to substitute the risk of his committing serious further offences. We are not entirely clear what "further serious offences" would be found to mean. The courts are, I think, familiar with the term "serious harm" but there is no real guidance about what "further serious offences" would mean. The existing criteria are designed to apply to the most serious cases. As we discussed earlier today, local authority secure accommodation is a limited resource. We believe that it should be limited to the most serious and persistent offenders. We think that there would be a danger that the noble Viscount's amendment would lower the threshold so that it would be applied to young persons who could and should be remanded to alternative and more appropriate accommodation more commensurate with their alleged offences.
We recognise that placing a young person in secure accommodation is a serious step. That is why in sentenced or remand cases we believe that secure accommodation should be reserved for the most serious and persistent offenders. I recognise the intention behind the amendment, but we are not prepared to support it.
Viscount Colville of Culross: I do not seem to have explained myself very well. The noble Lord tells the Committee that the test which now appears in Section 23(5) of the Children and Young Persons Act 1969 is the same as appears in relation to longer than normal sentences. I never believed that that was the case. The definition for the purposes of longer than normal sentences applies only to Part I. The new section inserted into the 1969 Act does not occur in Part I. It is true that the same expression is used. However, since that legislation was enacted the Court of Appeal has dealt with the tests for the purposes of Part I. It has said nothing about the Children and Young Persons Act 1969.
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I agree with the noble Lord that these are exceptional cases. We certainly do not want to devalue the seriousness that attends upon sending someone on remand to local authority secure accommodation. However, I am considering the consolidation point. I do not believe that the noble Lord's advisers have foreseen the problem that will arise when these exactly similar expressions occur in a single consolidation Act and have to be interpreted by a court in accordance with different criteria.
I seek only to help the noble Lord. I am not trying to devalue or reduce the thresholds. I wish only to make it possible in a suitable case for the youth court rapidly to remand someone to secure accommodation without having to obtain a lot of reports. I should have thought that it was a helpful and constructive suggestion. If the noble Lord does not like my wording, so be it; one never gets the wording right. But I should have thought that he would accept the idea underlying the amendment in particular in the light of the forthcoming consolidation. Is the noble Lord really not prepared to think about the matter again?
Lord Williams of Mostyn: I understand the intention because the noble Viscount and I have been in correspondence. We believe that the present wording is better. I am receiving contrary legal advice from the noble Viscount and officials. I may need to look at the issue again. I am always willing to do so. If the noble Viscount says I have got the law wrong, I shall recheck it. The answer may be found in Section 23(13)(c) of the 1969 Act. I readily agree that I may have got it wrong and the noble Viscount may be right. Perhaps he will give me the opportunity to reflect. I recognise that his intention is simply to be helpful, and I am seeking to respond in that way.
Perhaps the noble Viscount will allow me to revisit Section 23 of the 1969 Act. Whatever my conclusion is after revisiting the legislation and taking further advice, I shall write promptly to him.
Viscount Colville of Culross: I am very much obliged to the noble Lord. I understand the reference to Section 23(13)(c). However, I am wondering whether he has thought about the impact upon people aged 12 and 13 who will fall within the new Clause 80 as now proposed. I should have thought that it is the wrong test. I am not trying to devalue the provision. If the noble Lord is to re-examine the issue, I am grateful, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 p.m.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 260A:
Page 68, line 2, at end insert—
("() It shall be the duty of the local authority to provide accommodation for the purpose of any remand order made by the court.").
The noble Baroness said: In moving this amendment, with the leave of the Committee, I shall also speak to Amendment No. 260B grouped with it. I can be brief,

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the Minister having already given in some detail, in response to discussion on two previous amendments, the facts about the government review that is taking place with regard to the juvenile estate. It always seems that we use the most remarkable words to describe the facilities that will hold young people in custody. I am pleased to hear that such a review is going on. I hope that it may come to a fairly swift conclusion. I wish to make one or two points with regard to the problems of secure accommodation.
Amendment No. 260A would insert into Clause 80 the requirement:
"It shall be the duty of the local authority to provide accommodation for the purpose of any remand order made by the court".
Clause 80 deals with remands and committals of young people, about which so much information has been given. As stated, remands involve a speedy need to find accommodation for young children. We are talking about a circumstance in the near future where the numbers of such young people who require secure accommodation will presumably increase. I know that the Minister hopes that this provision may be precautionary rather than a measure that has to be implemented. However, one has to face the reality that these provisions, in the short term, if not in the long term, will lead to a larger number of young people requiring to be found secure accommodation.
Amendment No. 260B is included because, if one makes sure that secure accommodation has to be provided by the local authority, then line 22, after the word "applies", ceases to be relevant. The court does not first have to ascertain whether secure accommodation is available if we have already stated that it must be provided prior to action by the court.
My reason for proposing the amendment is based on experience of having to make an order committing a young person to secure accommodation in the knowledge not only that it might be difficult to find such accommodation locally—in the case of young people, surely that is what we must try to achieve, if nothing else—but also that it might be impossible to find secure accommodation anywhere within reasonable travelling distance. On occasions, that has happened simply because, within some local authorities, a position of political dogma has determined that there should be no provision at all of secure accommodation. That has meant children being sent outwith their county districts in order to find secure accommodation.
I hope that the government review has taken into account the "patchwork quilt" of provision that has heretofore existed and the resistance, on a dogmatic basis, of some local authorities to providing secure accommodation at all. I hope that the Minister is able to assure me that these matters have been taken into account. I beg to move.
Viscount Tenby: I support the amendment moved by the noble Baroness, Lady Anelay. In many ways, all these amendments on custodial sentences for young offenders are linked. Had it not been for the fact that others more distinguished than I spoke to the earlier amendment moved by the noble Baroness, Lady David,
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I could indeed have spoken to it as I supported it too. Since the amendments are linked one must be careful not to be repetitious or to make a Second Reading speech. It used to be said that Queen Mary, when she died, had Calais written on her heart. I sometimes think that if a future pathologist cuts me open, he will find written on mine, "secure local accommodation".
The Minister may reasonably reply to the spirit of the amendment—which is, after all, a probing amendment—that this condition cannot be made if such accommodation is not available. Under present trends I have to say with a heavy heart that that may be all too likely. With the power now to remand children over 12 direct to local authority accommodation. 15 and 16 year-old girls to local secure accommodation, and 15 and 16 year-old vulnerable boys also, one wonders how they will all fit in, despite the extra 170 places which are now available.
In that context, the review of juvenile secure estate is very much to be welcomed. I appreciate the Minister going to the trouble to spell out the meetings that have taken place as an indication of the commitment that the Government have in relation to this problem. We can only hope that the government survey will spotlight the need for more local secure accommodation and that ring-fenced funds will be made available for the purpose.
I know that there are competing demands on government finances. I know that health and education have an almost insatiable appetite. I know that there are few political brownie points to be won by expressing concerns about our prisoners and prisons, especially in the juvenile sector. Nevertheless, it is quite simply the sign of a civilised society that we should care about these matters, as indeed I know the Minister does. I therefore warmly support the amendment.
Lord Williams of Mostyn: Perhaps I may deal with Amendment No. 260A very briefly, as I believe the noble Baroness recognises that Section 61 of the 1991 Act already places a duty on local authorities to ensure that they are in a position to comply with any security requirement under Section 23 of the Children and Young Person Act 1969. So that amendment would not be of any practical utility.
Amendment No. 260B would in effect remove the requirement that in cases where the courts have adjudged a boy to be vulnerable—we discussed these matters earlier—a place has to be identified in advance. We understand that there is a case to be made for saying that there should be no limitation on the courts' powers to apply the legislation. However, we cannot overlook one of the reasons that has brought us to have the review referred to.
We are having to proceed step by step. I agree that a good argument can be made for matters to proceed more quickly. However, we have to have the review. We are dealing with the most vulnerable. For a court to decide to remand a most vulnerable boy or girl, it will need to have quite a lot of information: from the Probation Service, a social worker, a member of the youth offending team, and other information which it might

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think appropriate. Then an assessment has to be made by the probation officer, the social worker or the youth offending team member in advance as to whether the boy concerned is likely to come within the definition of subsection (5)(a).
We believe that it is in the interests of the probation officer, social worker or team member to have established in advance of the remand hearing that there is indeed a suitable secure place available. If one does not have that requirement, the whole exercise is pointless. I believe I was guilty of a slip of the tongue when I said "boy or girl." I meant "boy", of course, not "girl". I realised as soon as I said it that I had made a mistake. We believe that this requirement is necessary. It ought to be an essential part of the assessment process. If the amendment were agreed to, it would place the courts in a very difficult situation.
The noble Baroness was kind enough to say that I had already dealt in part with the review of the juvenile secure estate. Perhaps I may expand. It is a review of the whole range of secure accommodation for young people, including local authority secure units. What we are trying to achieve is that all the resources employed in the accommodation and care of accused or convicted juveniles who need secure accommodation are used to best effect. It includes educational needs and tackling offending behaviour. I can assure the noble Baroness that the review, which is of pressing urgency, is casting its net very wide indeed. It is, of course, within the context of a comprehensive spending review, and the noble Viscount, Lord Tenby, pointed to the fact that there are financial constraints.
I repeat what I said earlier: we wish to see an end to the practice of remanding 15 and 16 year-old boys to prison custody. I can speak with some personal knowledge of these matters because the case mentioned by the right reverend Prelate of Phillip Knight, who killed himself in Swansea Prison, formed part of an inquiry which I conducted. I can only reiterate our policy and our determination to see an end to the practice.
Baroness Anelay of St. Johns: I am grateful to the Minister for that response. I shall consider carefully whether we need to pursue the matter further at Report stage. I accept that Amendment No. 260B does not achieve the objective which we had intended and shall not wish to return to that.
I am grateful to the noble Viscount, Lord Tenby, for his comments. He underlines what is felt by all those involved in the sentencing process with regard to young people. Any decision taken to put a young person into any form of custody is a decision taken with a very heavy heart and one where sentencers need to feel that suitable accommodation is available for that young person, particularly in the context of this Bill.
Having heard the words of the Minister tonight, I shall at this stage beg leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 agreed to.
Clause 81 [Remands and committals: alternative provision for 15 or 16 year old boys]:
[Amendment No. 260B not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 261:
Page 68, line 28, leave out from ("applies") to end of line 30.
The noble Earl said: Amendment No. 261 seeks to probe why there is a need for the use of prison for 15 and 16 year-old boys. The Bill allows the use of local authority secure accommodation, a remand centre or a prison. I am unhappy that that three-way choice should be open to magistrates. I should prefer to see in the Bill the Scottish process whereby a child may be admitted to a prison only after an "unruly" certificate had been obtained by the procurator fiscal. I prefer that situation to the one in the Bill because it would mean that a child would be placed in a prison only if it was proved that he could not be contained in secure accommodation or a remand centre. I believe that that approach has more justice in it. A child admitted to a prison would be there strictly as a result of his own actions. I beg to move.
Lord Williams of Mostyn: We have already discussed these problems and perhaps Members of the Committee will forgive my not repeating some of the observations I have made.
I say again that we are sensitive to these concerns. The Minister of State at the Home Office, Mr. Michael, has held a number of meetings recently on this issue. These have included discussions with the most reverend Primate the Archbishop of Canterbury and the Children's Society, who have campaigned for a long time for the abolition of remanding 15 and 16 year-old boys to prison.
If this amendment were passed, prison remands would immediately be abolished when the Bill became law. There are no remand centres designated for the purpose. Therefore the practical consequence of the noble Earl's amendment would be that all remands would be to local authority secure accommodation. As I identified earlier, there is a lack of such accommodation, and that might mean that the court would have no way of remanding to secure accommodation, even where the court adjudged it necessary in order to protect the public. I believe that that is not a consequence that anyone could sensibly look to. Bearing in mind what I said earlier about the way the Government's policy is set, I ask the noble Earl to withdraw his amendment.
The Earl of Mar and Kellie: I accept that we have in some respects returned to this subject. I should be happy to see the retention of the part of the Bill which I sought to strike out if it referred to prison as being a last resort. As the provision is framed, I believe that magistrates could decide on prison as one of three options. I do not believe that that is what anyone wants. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 agreed to.
7.45 p.m.
Clause 82 [Power to release short-term prisoners on licence]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 262:
Page 69, line 46, leave out ("38A(1)") and insert ("38A(1)(a)").
The noble and learned Lord said: In moving Amendment No. 262, I shall, with leave of the Committee, speak also to Amendments Nos. 263, and 265 to 269. This series of amendments concerns the workings of the home detention scheme, under which prisoners serving between three months and four years, who are near the end of their sentence, could be released on curfew, enforced by electronic monitoring.
We are keen to ensure that the new home detention curfew works as efficiently as possible, that those offenders who do not meet the discipline it imposes on them are dealt with effectively and that circumstances which are unforseeable when governors are assessing the suitability of a prisoner for release under curfew are suitably provided for.
We believe that those offenders who fail to comply with the terms of the curfew or who return to their offending ways should be quickly recalled to prison and debarred from future eligibility for release under home detention curfew. We are also, however, keen to ensure that offenders are given the opportunity to continue to benefit from the phased reintroduction to society which home detention curfew represents, even when their circumstances change to such an extent that compliance with the terms of their original curfew become difficult.
There will, of course, be occasions when a curfew cannot be monitored and it may well be that, despite the screening process provided by the risk assessment, further information comes to light about the possible threat posed by an offender who has been released under home detention curfew. Clearly the right thing to do in such cases is to recall the offender to prison.
It is with those aims that we propose the following amendments.
Amendment No. 262 is consequential to Amendment No. 269.
Amendment No. 263 ensures that any offender who is at any time returned to prison, having been convicted of an imprisonable offence committed while subject to a sentence from which he had been released early, will not be eligible for release under home detention curfew.
Amendments Nos. 265, 266, 267 and 268 allow prison governors, acting on behalf of the Secretary of State, to change the hours or place of curfew once the offender has started the home detention curfew licence period. This will ensure that changes in the circumstances of an offender, such as work commitments or a change of address, which would make compliance with the terms of the licence difficult, can be accommodated without first recalling the offender to prison.
Amendment No. 269 adds two further circumstances under which a licence can be revoked and the offender returned to prison. It will ensure that, in addition to
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those who have failed to comply with the conditions of the curfew, offenders who can no longer be monitored at the place specified in the licence and offenders who pose a threat to the public can be recalled to prison.
Clearly offenders who, having passed the risk assessment, are subsequently found to represent a risk to the public, should be returned to prison. Offenders who, for whatever reason, can no longer be monitored at the place specified in the licence, by the same token, should not be allowed to remain at large. If there is no way of monitoring their compliance with the terms of the curfew, the effectiveness of the curfew is negated. I beg to move Amendment No. 262.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 263:
Page 70, line 6, leave out from ("below") to second ("or") in line 7 and insert ("at any time").
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 263A:
Page 70, line 17, at end insert—
("() The Secretary of State shall publish guidance as to the criteria which will qualify a prisoner for early release under this section.").
The noble Baroness said: I beg to move Amendment No. 263A. Clause 82, which we have just considered, gives effect to the Government's policy for the early release of prisoners who are serving from three months to four years.
This amendment would require the Secretary of State to publish guidance as to the criteria which would qualify a prisoner for early release under this section.
At Second Reading I raised this issue and I am grateful to the Minister for writing to my noble friend Lord Henley in January on matters surrounding this point. He responded to my concerns in what I might call a three-pronged approach. I hope that today he can confirm that it is the Government's intention to adopt the proposals outlined in his letter.
He listed categories of prisoners who would not be eligible for a home curfew. Those were: those serving extended sentences within the meaning of Clause 46 of the Bill; those convicted under Section 1 of the Prisoners (Return to Custody) Act 1995; those subject to a hospital order, a hospital direction or transfer directions under the Mental Health Act; those liable to removal from the United Kingdom; those who have previously failed to comply with the requirements of a home detention curfew or a curfew order enforced by electronic monitoring, or those who have a due release date which means that they would spend fewer than 14 days on curfew.
That list is helpful. I am merely asking tonight whether the Minister can confirm that those are still the excluded categories within the Government's understanding of this matter, and whether any further thought has been given since that letter of January, and therefore whether any further additions have been made to that list.
The second part of that three-pronged approach is that the Minister further stated in the letter that the Government are considering what further considerations should apply when assessing which of the prisoners, among the other categories not excluded, shall then be selected for home detention curfew. That is among those who first of all fall within the categories who will be eligible for consideration, and of course among those who actually apply to be considered.
The Minister stated in the letter that prisoners who have already passed the release on temporary licence risk assessment or who have already successfully completed a period of temporary release will normally be considered as suitable unless other risk factors come to light. Again, that is a helpful indication of how individual suitability for release might be assessed. I would be grateful if the Minister would confirm that this is the Government's position on the matter.
The last part of the three-pronged approach was that the Minister stated that he hoped to be in a position to show draft guidance on eligibility to the House by the time the provisions were considered in Committee. I wonder whether he can fulfil that hope and my expectation tonight, and say whether that draft is now available.
Lord Monson: I do not object to the principle of Clause 82 but I think that this amendment, or something like it, will provide a very necessary and desirable safeguard. The public at large will not be very happy at the idea of prisoners being released, albeit on licence, after serving only a quarter, or just over a quarter, of their sentences. That goes completely against the grain of the last government's policy of honesty in sentencing, if I remember the phrase correctly. I think, however, they would be somewhat mollified if an amendment such as this were to be accepted.
Lord Belstead: Perhaps I may say a very brief word in support of my noble friend Baroness Anelay on this amendment. I have not seen the exchange of correspondence so I ask first of all, from my place in the Chamber, about those who are suitable to be chosen for electronic monitoring. It would be interesting, certainly for myself, to hear a little more from the Government Front Bench about those who will be suitable.
The real reason I have risen to speak is that if one looks at subsection (4) there is set out the eligibility date for the different groups of short-term prisoners, for all of whom the day of release will be very much earlier than it has been under the present arrangements. As the Government will know very well, at present prisoners serving fewer than four years are eligible for early release at the half-way point of their sentence, but under Clause 82(4) the times for all different groups of under four year prisoners will be very much earlier for their early release than now.
That leads me to the question I want to ask. Are the Government confident that electronic monitoring will create a situation where the rate of reoffending will not
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be higher than it is now and the prospects for rehabilitation will be better because of the electronic monitoring and the surveillance that goes with it? That is really quite a simple question.
I have some views of my own from having read papers about electronic monitoring but I am anxious to hear this evening the views of the Ministers, briefly but succinctly, as to the success as they see it, of electronic monitoring.
Lord Falconer of Thoroton: First of all, the points raised by the noble Baroness, Lady Anelay of St. Johns. The answer is that the contents of the letter still stand. I appreciate that only the noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, to whom it was sent, have seen the contents of the letter so perhaps I should also undertake to send a copy to both the noble Lord, Lord Monson, and the noble Lord, Lord Belstead, who have intervened in the debate. Nothing that has been said in the letter has been departed from.
So far as concerns the publication of the criteria, I can assure the House that it is our intention to publish the criteria as part of the more detailed guidance that the Prison Service will use to assess suitability for home detention curfew. The assessment will seek to balance any risk to the public presented by the bringing forward of the release date against the potential benefits of incorporating a period of home detention curfew within the prisoner's sentence. We are currently preparing the guidance, and hope to issue it shortly. I will ensure that it is placed in the Libraries of both Houses of Parliament as quickly as possible.
I believe, however, that it would be very unusual for guidance of this kind to be given statutory status without any overriding reason. Moreover, with a new procedure of this kind, it would be beneficial to retain the flexibility provided by non-statutory guidance, which can be amended in the light of experience.
Questions have been asked about precisely what categories of prisoner will be considered for it. That will be dealt with in the guidance and, to a certain extent, has been dealt with in the letter that everybody will see.
What will be the criteria that the Prison Service will use to assess suitability for release under the scheme? The exact details of the risk assessment process are still being developed, but the type of factors that the Prison Service are likely to consider will include whether release on home detention curfew will pose an unacceptable risk to the public; whether there is a substantial risk of reoffending during the home curfew period and whether it is likely that the offender will fail to comply with the conditions of the curfew.
Who will decide? It will be for the prison governor to decide.
How can the Government claim that releasing these prisoners will not present a risk to the public? There will always be a risk of reoffending by these prisoners. Even if found unsuitable for release on this scheme, they will be automatically released at most two months later. Our job is therefore to minimise the risk they present. We

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believe that the electronic monitoring will help to that extent but to go further would be injudicious at this stage.
I think that answers, albeit not completely, all the questions that have been raised. In those circumstances, I invite the noble Baroness to withdraw her amendment.
8 p.m.
Baroness Anelay of St. Johns: I am grateful to the noble and learned Lord for that reply, particularly for his offer to distribute more widely the letter that was sent to my noble friend Lord Henley in January. I am also grateful for his comment that the guidance, although not with us in Committee, will be published "shortly". I have been advised by colleagues who have previously served in a ministerial capacity about the variations between the definitions of "soon", "very soon" and now "shortly". As a novice at the Dispatch Box, I shall have to keep a log of how the definition comes to be proved to exist in the end. At the moment, I need to cover myself because I do not yet quite know what the noble and learned Lord means by "shortly". In those circumstances, I cannot promise not to come back to this matter at Report. However, in the meantime, I ask the permission of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 82, as amended, agreed to.
Clause 83 [Curfew condition to be included in licence]:
Baroness David Baroness David moved Amendment No. 264:
Page 70, line 37, after ("person") insert ("aged 16 or over").
The noble Baroness said: This amendment would enable prisoners under 16 to be eligible for the early release provisions set out in Clauses 82 to 86 without having to be electronically tagged. In appropriate cases, school age children could be given early release under conditions other than tagging.
There are particular problems attached to the tagging of children of school age. The young people concerned would have to attend school with a tag strapped to their wrist or ankle, marking them out as an offender. Whereas adults can easily conceal a tag beneath their clothing, schoolchildren involved in physical education and taking showers will find it difficult to hide their tag. Some children will find this very humiliating and embarrassing while others are likely to react by boasting about their tag and wearing it as a badge of honour, adopting a hard image to live up to it. This is the opposite of the attitudes towards which we are trying to steer young offenders.
In view of the potential problems, it would make sense to allow discretion for school age children to be eligible for early release subject to supervision and conditions other than tagging. I beg to move.
Lord Goodhart: I rise briefly to say that the noble Baroness's amendment is a matter of plain common sense. It would be potentially devastating for a child to have to go to school wearing a tag. In extreme cases it could even lead to suicide. I am aware that the
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monitoring procedure does not have to be carried out during school hours, but the tag, as I understand it, will not be removable for the parts of the day when the child is at school. I hope very strongly that the Government will see fit to accept the amendment.
Lord Williams of Mostyn: I recognise the points which have been well made, if I may say so, by the noble Baroness and the noble Lord, Lord Goodhart. It has to be recognised that there are special factors to be considered in applying curfew orders and electronic monitoring to juvenile offenders. We do not want to exclude the opportunity of using this on under 16 year-olds, but further work needs to be done.
I hope it is of assistance to the Committee if I say that, in order to research these sensitive matters more fully, we have started to pilot in Norfolk and Manchester the use of curfews imposed as a sentence under the Crime (Sentences) Act 1997 for 10 to 15 year-olds. Obviously, that will not be the work of a couple of weekends. It is due to end in the summer of 1999. After that, we will evaluate their success and appropriateness for this age group.
In order for the lessons to be learnt and to give due weight to what has been said, we intend to introduce at the earliest opportunity a government amendment which will allow for the introduction of the home detention curfew for juvenile offenders to be delayed until the outcomes of these trial projects have been fully evaluated. In order that all juveniles are treated on an equal basis, the phased introduction would apply to all those aged 10 to 17. The amendment was well explained and I hope that our response is satisfactory.
Baroness David: I thank the noble Lord, Lord Goodhart, for his support for the amendment and I thank the Minister for his response, which I think is acceptable. I hope that the results of the pilot schemes will be made known to us. The response was fairly favourable and so I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 265 to 269:
Page 70, line 40, at end insert ("for the time being").
Page 70, line 41, after ("place") insert ("for the time being").
Page 70, line 44, at end insert ("for the time being").
Page 71, line 11, after ("periods") insert ("for the time being").
Page 71, line 28, leave out from ("State") to second ("the") in line 30 and insert (", as regards a person released on licence under section 34A(3) above—

(a) that he has failed to comply with the curfew condition;

(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in that condition; or

(c) that it is necessary to do so in order to protect the public from serious harm from him.").

The noble and learned Lord said: I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
[Amendment No. 270 had been withdrawn from the Marshalled List.]
Clause 83, as amended, agreed to.
On Question, Whether Clause 84 shall stand part of the Bill?
Lord Belstead: I wish to ask a question about Clause 84. Does subsection (1) of Clause 84 mean that short-term prisoners will be recalled henceforth, when the Bill becomes law, by the Parole Board and not by the courts? If I have that right, does subsection (1) also mean that a short-term prisoner henceforth can be recalled for not complying with the terms of his or her release licence whereas now a short-term prisoner must have reoffended in order to be recalled? I am perfectly happy if the Minister would like to write to me on that point.
I raise it because, if I have it right, Clause 84 marks a very substantial step forward with regard to the recall of prisoners. If I am not too far out of order, perhaps I may also say that Clause 85 undoubtedly marks a very substantial step forward with regard to the recall of all prisoners. That clause, which the Deputy Chairman of Committees will be calling in just a moment, shows that the Government have observed a major lacuna in the present arrangements and are putting it right by providing that a prisoner who has been recalled will, under the Bill, be released at the three-quarters point of his sentence, but under supervision to the end of his sentence, which is not the case at the present time.
I raise these points because, in terms of public protection and the rehabilitation of prisoners, I believe that the Government have got Clauses 84 and 85 absolutely right. Speaking from the opposite side of the House from the Government, it gives me pleasure to be able very respectfully to say so.
Lord Falconer of Thoroton: I am grateful to the noble Lord for his remarks. He is correct in the description he gives of the effect of Clause 84. I should point out that there are transitional provisions in Schedule 8 to the Bill to enable Clause 84 to be introduced later than other provisions in this part of the Bill. His remarks on Clause 85 were not a question but a congratulation. While I am on my feet, perhaps I may indicate that the letter I was so generously offering to send everyone—the letter of 29th January 1998 from my noble friend Lord Williams of Mostyn to the noble Lord, Lord Henley—is in the Library and so can be looked at.
Clause 84 agreed to.
Clauses 85 to 87 agreed to.
Schedule 6 [Pre-consolidation amendments: powers of criminal courts]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 271:
Page 95, line 40, leave out from second ("of") to end of line 41 and insert ("a relevant order (within the meaning given by that Schedule) or of a combination order);".").
The noble and learned Lord said: Perhaps I may, with the leave of the Committee, speak also to Amendments Nos. 272 to 287, 322, 324 to 329, 331 and 334. These are all technical amendments. There are 26 in all. They have been identified in consultation with the Law Commission. They are necessary to facilitate the consolidation of certain enactments relating to the powers of the courts to deal with offenders or defaults. The amendments are required before a consolidation Bill can be introduced in a future Session of Parliament. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 272 to 287:
Page 96, line 15, at end insert—
(". In section 12 of the 1969 Act (power to include requirements in supervision orders), after subsection (3) there shall be added the following subsection—
"(4) Directions given by the supervisor by virtue of subsection (2)(b) or (c) above shall, as far as practicable, be such as to avoid—

(a) any conflict with the offender's religious beliefs or with the requirements of any other community order (within the meaning of Part I of the Criminal Justice Act 1991) to which he may be subject; and

(b) any interference with the times, if any, at which he normally works or attends school or any other educational establishment."").

Page 96, line 28, at end insert—
(" . In section 16(11) of the 1969 Act (provisions supplementary to section 15), the words "seventeen or" shall cease to have effect.").
Page 97, line 7, at end insert—
(" . In section 1(8) of the 1973 Act (deferment of sentence), for paragraph (a) there shall be substituted the following paragraph—
"(a) is power to deal with him, for the offence for which passing of sentence has been deferred, in any way in which the court which deferred passing sentence could have dealt with him for that offence; and".").
Page 97, line 11, leave out ("In section 14(7)") and insert ("Section 11 of the 1973 Act (which is superseded by the paragraph 8A inserted by this Schedule in Schedule 2 to the 1991 Act) shall cease to have effect.
—(1) For subsection (2) of section 12 of the 1973 Act (supplementary provision as to probation and discharge) there shall be substituted the following subsection—
"(2) Where an order for conditional discharge has been made on appeal, for the purposes of this Act it shall be deemed—

(a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;

(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court."

(2) In subsection (3) of that section, for the words from "any question whether a probationer" to "period of conditional discharge," there shall be substituted the words "any question whether any person in whose case an order for conditional discharge has been made has been convicted of an offence committed during the period of conditional discharge".
(3) For subsection (4) of that section there shall be substituted the following subsection—
"(4) Nothing in section 1A of this Act shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 35 or 43 of this Act or section 28 of the Theft Act 1968."
—(1) In subsection (7) of section 14").
Page 97, line 13, at end insert—
("(2) Subsection (8) of that section shall cease to have effect.").
Page 97, line 28, at end insert—
(" . In subsection (3) of section 22 of the 1973 Act (suspended sentences of imprisonment)—

(a) for the words "make a probation order in his case in respect of another offence" there shall be substituted the words "impose a community sentence in his case in respect of that offence or any other offence"; and

(b) at the end there shall be inserted the words "; and in this subsection "community sentence" has the same meaning as in Part I of the Criminal Justice Act 1991."").

Page 97, line 36, at end insert—
(" .—(1) In subsection (2) of section 32 of the 1973 Act (enforcement etc. of fines imposed and recognizances forfeited by Crown Court), for the words "section 85(1)" there shall be substituted the words "section 85(2)".
(2) In subsection (3) of that section, after the words "to the Crown Court" there shall be inserted the words "(except the reference in subsection (1)(b) above)".
(3) For subsection (4) of that section there shall be substituted the following subsection—
"(4) A magistrates' court shall not, under section 85(1) or 120 of the Magistrates' Courts Act 1980 as applied by subsection (1) above, remit the whole or any part of a fine imposed by, or sum due under a recognizance forfeited by—

(a) the Crown Court,

(b) the criminal division of the Court of Appeal, or

(c) the House of Lords on appeal from that division, without the consent of the Crown Court."

(4) Subsection (5) of that section shall cease to have effect.").
Page 97, line 36, at end insert—
(" . For subsection (5) of section 57 of the 1973 Act (interpretation) there shall be substituted the following subsection—
"(5) Where a compensation order or supervision order has been made on appeal, for the purposes of this Act (except section 26(5)) it shall be deemed—

(a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;

(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court."").

Page 98, line 33, leave out ("In section 13(3)") and insert ("In section 3(1) of the 1982 Act (restriction on imposing custodial sentences on persons under 21 not legally represented)—

(a) in paragraph (a), the words "under section 1A above" shall cease to have effect;

(b) in paragraph (c), for the words "section 8(2)" there shall be substituted the words "section 8(1) or (2)"; and

(c) in paragraph (d), for the words "section 53(2)" there shall be substituted the words "section 53(1) or (3)".

.—(1) In subsection (3) of section 13").
Page 98, line 36, at end insert—
("(2) In subsection (6) of that section, for the words "section 8(2)" there shall be substituted the words "section 8(1) or (2)".").
Page 98, leave out line 40 and insert (".—(1) In subsection (1) of section 17 of the 1982 Act (attendance centre orders), after paragraph (b) there shall be inserted the following paragraph—
"(bb) has power to deal with a person under 16 years of age under that Part of that Schedule for failure to comply with any of the requirements of a curfew order, or".
(2) For subsection (8) of that section").
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Page 99, line 11, leave out ("section 12(5)(c)") and insert ("subsection (5)(c) of section 12").
Page 99, line 12, at end insert—
("() After subsection (6A) of that section there shall be inserted the following subsection—
"(6B) The court by which a curfew order is made shall give a copy of the order to the offender and to the person responsible for monitoring the offender's whereabouts during the curfew periods specified in the order."").
Page 99, line 15, at end insert—
(" .—(1) In subsection (3) of section 40 of the 1991 Act (convictions during currency of original sentences), for the words from "for sentence" to the end there shall be substituted the words "to be dealt with under subsection (3A) below".
(2) After that subsection there shall be inserted the following subsections—
"(3A) Where a person is committed to the Crown Court under subsection (3) above, the Crown Court may order him to be returned to prison for the whole or any part of the period which—

(a) begins with the date of the order; and

(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1) above.

(3B) Subsection (3)(b) above shall not be taken to confer on the magistrates' court a power to commit the person to the Crown Court for sentence for the new offence, but this is without prejudice to any such power conferred on the magistrates' court by any other enactment."
(3) In subsection (4) of that section, for the words "subsection (2)" there shall be substituted the words "subsection (2) or (3A)".").
Page 99, line 20, leave out from beginning to ("for") in line 21 and insert (".—(1) In paragraph 1 of Schedule 2 to the 1991 Act (enforcement etc. of community orders), after sub-paragraph (3) there shall be added the following sub-paragraph—
"(4) Where a probation order, community service order, combination order or curfew order has been made on appeal, for the purposes of this Schedule it shall be deemed—

(a) if it was made on an appeal brought from a magistrates' court, to have been made by a magistrates' court;

(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court."

(2) In each of paragraphs 3(1) and 4(1) of that Schedule, for paragraph (c) there shall be substituted the following paragraph—
"(c) where—

(i) the relevant order is a probation order and the offender is under the age of twenty-one years, or

(ii) the relevant order is a curfew order and the offender is under the age of sixteen years, and the court has been notified as required by subsection (1) of section 17 of the 1982 Act, it may (subject to paragraph 6(6) below) make in respect of him an order under that section (attendance centre orders); or".

(3) In paragraph 4(I) of that Schedule—

(a) after the word "failed" there shall be inserted the words "without reasonable excuse"; and

(b) in paragraph (d), for the words "by or before the court" there shall be substituted the words "before the Crown Court".

(4) In paragraph 6 of that Schedule, in sub-paragraph (1),").

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Page 99, line 22, at end insert—
("(5) After sub-paragraph (3) of that paragraph there shall be inserted the following sub-paragraph—
"(3A) A community service order shall not be made under paragraph 3(1)(b) or 4(1)(b) above in respect of a person who is under the age of sixteen years."
(6) For sub-paragraph (5) of that paragraph there shall be substituted the following sub-paragraph—
"(5) Where the provisions of this Schedule have effect as mentioned in sub-paragraph (4) above in relation to a community service order under paragraph 3(1)(b) or 4(1)(b) above—

(a) the power conferred on the court by each of paragraphs 3(1)(d) and 4(1)(d) above and paragraph 7(2)(a)(ii) below to deal with the offender for the offence in respect of which the order was made shall be construed as a power to deal with the offender, for his failure to comply with the original order, in any manner in which the court could deal with him if that failure to comply had just been proved to the satisfaction of the court;

(b) the reference in paragraph 7(1)(b) below to the offence in respect of which the order was made shall be construed as a reference to the failure to comply in respect of which the order was made; and

(c) the power conferred on the court by paragraph 8(2)(b) below to deal with the offender for the offence in respect of which the order was made shall be construed as a power to deal with the offender, for his failure to comply with the original order, in any manner in which the court which made the original order could deal with him if that failure had just been proved to the satisfaction of that court;

and in this sub-paragraph "the original order" means the relevant order the failure to comply with whose requirements led to the making of the community service order under paragraph 3(1)(b) or 4(1)(b)."
(7) After sub-paragraph (5) of that paragraph there shall be added the following sub-paragraph—
"(6) The provisions of sections 17 to 19 of the 1982 Act (making, discharge, variation and breach of attendance centre order) shall apply for the purposes of paragraphs 3(1)(c) and 4(1)(c) above but as if there were omitted—

(a) subsection (13) of section 17:

(b) from subsection (4A) of section 18 and subsections (3) and (5) of section 19, the words ", for the offence in respect of which the order was made," and "for that offence"; and

(c) from subsection (6) of section 19, the words "for an offence"."

(8) In paragraph 8(2) of that Schedule, for paragraph (b) there shall be substituted the following paragraph—
"(b) revoke the order and deal with the offender, for the offence in respect of which the order was made, in any manner in which the court which made the order could deal with him if he had just been convicted of that offence by or before the court which made the order."
(9) After paragraph 8 of that Schedule there shall be inserted the following paragraph—
"8A.—(1) This paragraph applies where a probation order is in force in respect of any offender and on the application of the offender or the responsible officer it appears to a magistrates' court acting for the petty sessions area concerned that, having regard to circumstances which have arisen since the order was made, it would be in the interests of justice—

(a) for the probation order to be revoked; and

(b) for an order to be made under section 1A(1)(b) of the 1973 Act discharging the offender conditionally for the offence for which the probation order was made.

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(2) No application may be made under paragraph 7 above for a probation order to be revoked and replaced with an order for conditional discharge under section 1A(1)(b) of the 1973 Act; but otherwise nothing in this paragraph shall affect the operation of paragraphs 7 and 8 above.
(3) Where this paragraph applies and the probation order was made by a magistrates' court—

(a) the magistrates' court dealing with the application may revoke the probation order and make an order under section 1A(1)(b) of the 1973 Act discharging the offender in respect of the offence for which the probation order was made, subject to the condition that he commits no offence during the period specified in the order under section 1A(1)(b); and

(b) the period specified in the order under section 1A(1)(b) shall be the period beginning with the making of that order and ending with the date when the probation period specified in the probation order would have ended.

(4) Where this paragraph applies and the probation order was made by the Crown Court, the magistrates' court may send the application to the Crown Court to be heard by that court, and if it does so shall also send to the Crown Court such particulars of the case as may be desirable.
(5) Where an application under this paragraph is heard by the Crown Court by virtue of sub-paragraph (4) above—

(a) the Crown Court may revoke the probation order and make an order under section 1A(1)(b) of the 1973 Act discharging the offender in respect of the offence for which the probation order was made, subject to the condition that he commits no offence during the period specified in the order under section 1A(1)(b); and

(b) the period specified in the order under section 1A(1)(b) shall be the period beginning with the making of that order and ending with the date when the probation period specified in the probation order would have ended.

(6) An application under this paragraph may be heard in the offender's absence if—

(a) the application is made by the responsible officer; and

(b) that officer produces to the court a statement by the offender that he understands the effect of an order for conditional discharge and consents to the making of the application; and where the application is so heard section 1A(3) of the 1973 Act shall not apply.

(7) No application may be made under this paragraph while an appeal against the probation order is pending.
(8) Without prejudice to paragraph 11 below, on the making of an order under section 1A(1)(b) of the 1973 Act by virtue of this paragraph the court shall forthwith give copies of the order to the responsible officer, and the responsible officer shall give a copy to the offender."
(10) After paragraph 11 of that Schedule there shall be inserted the following paragraph—
"11A. Where under this Part of this Schedule a relevant order is revoked and replaced by an order for conditional discharge under section 1A(1)(b) of the 1973 Act and—

(a) the order for conditional discharge is not made in the circumstances mentioned in section 1B(9) of the 1973 Act (order made by magistrates' court in the case of an offender under eighteen in respect of offence triable only on indictment in the case of an adult), but

(b) the relevant order was made in those circumstances,
section 1B(9) of the 1973 Act shall apply as if the order for conditional discharge had been made in those circumstances."").

On Question, amendments agreed to.
Schedule 6, as amended, agreed to.
Clauses 88 and 89 agreed to.
The Lord Advocate (Lord Hardie)The Lord Advocate (Lord Hardie) moved Amendment No. 287A:
After Clause 89, insert the following new clause—
(" .—(1) Section 16 of the Crime and Punishment (Scotland) Act 1997 (designated life prisoners) shall have effect and shall be deemed always to have had effect with the amendments made by subsections (2) and (3) below.
(2) In subsection (2), at the beginning, there shall be inserted the words "Except in a case to which subsection (3A) or (3B) below applies,".
(3) After subsection (3), there shall be inserted the following subsections—
"(3A) This subsection applies in a case where a person—

(a) was sentenced, prior to 20th October 1997, in respect of a murder committed by him before he attained the age of 18 years; and

(b) has been released on licence, other than under section 3 of the 1993 Act, whether before or on that date.

(3B) This subsection applies in a case where a person—

(a) was sentenced, prior to 20th October 1997, in respect of a murder committed by him before he attained the age of 18 years; and

(b) has been released on licence, other than under section 3 of the 1993 Act, after that date without his case having been considered under subsection (2) above.

(3C) In a case to which subsection (3A) or (3B) applies, Part I of the 1993 Act shall apply as if the person were a designated life prisoner, within the meaning of section 2 of that Act, whose licence had been granted under subsection (4) of that section on his having served the designated part of his sentence.".
(4) Where, prior to the commencement of this section, a certificate has been issued under subsection (2) of section 16 of the Crime and Punishment (Scotland) Act 1997 in respect of a case to which subsection (3A) of that section applies, the certificate shall be disregarded.").
The noble and learned Lord said: In moving this amendment I shall also speak Amendment No. 307A. For all its complex appearance, Amendment No. 287A has a simple purpose, which can be summed up simply. It is to make good an omission from the transitional provisions contained in Section 16(2) of the Crime and Punishment (Scotland) Act 1997 dealing with persons sentenced for murder committed while they were under the age of 18. This amendment aligns them with the earlier transitional provisions made for discretionary life prisoners contained in the Prisoners and Criminal Proceedings (Scotland) Act 1993 in order to avoid possible unfairness to prisoners in a small number of cases.
The amendment deals with under 18 years of age murderers who have already been released on licence. The 1997 Act gives under 18 years of age murderers who come within the definition of designated life prisoners the right to a review by the Parole Board for Scotland. The Parole Board (Scotland) Rules 1993, as amended, constitute the Parole Board for Scotland as a court for this purpose once the offenders have served the designated part of their sentence, as certified by the Lord Justice General.
Under the current transitional provisions of the 1997 Act, an under 18 years of age murderer who has already been released under the statutory provisions which
1180
pre-dated the coming into effect of the relevant provisions of the 1997 Act must have a designated part certified by the Lord Justice General in order that the new provisions governing his release can apply to him. That is notwithstanding that at the time he was first released the Secretary of State and the then Lord Justice General considered that he had served a sufficient period to satisfy the criminal justice requirements for punishment and general deterrence.
Therefore, this amendment would provide that where an under 18 years of age murderer has been released by the Secretary of State under the pre-1997 Act procedures, he will be deemed to have served the designated part of his sentence for the purposes of the new procedures. That means that the Lord Justice General does not require to set a designated part and arrangements thereby mirror the transitional arrangements made for discretionary life prisoners. The amendment further provides that in any relevant case in which the Lord Justice General has made a certificate setting the designated part, it shall be disregarded. This ensures that all the transitional prisoners gain the benefit of the amendment. To that extent the amendment provides for retrospective application.
Amendment No. 307A is consequential to the new arrangements. I beg to move.
On Question, amendment agreed to.
Clause 90 agreed to.
Clauses 92 to 94 agreed to.
Schedule 7 [Minor and consequential amendments].
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 288:
Page 100, line 14, at end insert ("or paragraph 3 of Schedule 4 to that Act (breach of requirements of reparation order or action plan order)"").
The noble and learned Lord said: In moving this amendment I shall speak also to Amendments Nos. 289 to 298 inclusive and Amendments Nos. 301, 302, 304 to 306; 308 to 311; 323, 330, 333 and 340 to 345 inclusive. This group of 29 government amendments contains minor and consequential amendments to Schedule 7, as it relates to England and Wales, to Clause 96 and to Schedule 9. The Schedule 9 amendments, which are Amendments Nos. 323, 330 and 333, are all consequential on the amendments to Schedule 7. I do not want to take up the time of the Committee by going through these minor and technical amendments one by one although I can, of course, expand on any individual amendment should the Committee so wish. Suffice it to say that these minor and consequential amendments to existing legislation are necessary either as a consequence of earlier government amendments to the Bill or to make changes consequential upon provisions in the Bill, which were overlooked when the Bill was first produced or to correct errors in existing legislation. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton: moved Amendments Nos. 289 to 298:
Page 100, line 14, at end insert—
(" . In section 58 of that Act (power of Secretary of State to send certain young offenders to approved schools), for the words "subsection (2)", in both places where they occur, there shall be substituted the words "subsection (3).").
Page 100, line 39, leave out ("under 18 years of age").
Page 100, line 43, at end insert—
("4A.—(1) In subsection (1) of section 49 of that Act (persons unlawfully at large), for the words from "imprisonment" to "secure training centre" there shall be substituted the words "imprisonment or custody for life or ordered to be detained in secure accommodation or in a young offenders institution".
(2) In subsection (2) of that section—

(a) for the words from "imprisonment" to "secure training centre" there shall be substituted the words "imprisonment, or ordered to be detained in secure accommodation or in a young offenders institution"; and

(b) for the words from "in a prison" to "secure training centre" there shall be substituted the words "in a prison or remand centre, in secure accommodation or in a young offenders institution".

(3) After subsection (4) of that section there shall be inserted the following subsection—
"(5) In this section "secure accommodation" means—

(a) a young offender institution;

(b) a secure training centre; or

(c) any other accommodation that is secure accommodation within the meaning given by section 62(7) of the Crime and Disorder Act 1998 (detention and training orders)."").

Page 101, line 8, after ("Wales)") insert—
("(a) in paragraph (b), for the words "section 53(2)" there shall be substituted the words "section 53(3)"; and
(b)")
Page 102, line 14, leave out ("and "of a probation order" shall cease to have effect") and insert ("shall cease to have effect and for the words "the supervision of a probation officer" there shall be substituted the word "supervision"").
Page 103, line 10, leave out ("In") and insert ("After").
Page 103, line 11, leave out from ("sentences)") to end of line 14 and insert ("there shall be inserted the following subsection—
"(6A) Where in respect of a conviction a detention and training order was made under section 60 of the Crime and Disorder Act 1998, the rehabilitation period applicable to the sentence shall be—

(a) in the case of a person aged fifteen years or over at the date of his conviction, five years if the order was, and three and a half years if the order was not, for a term exceeding six months;

(b) in the case of a person aged under fifteen years at the date of his conviction, a period beginning with that date and ending one year after the date on which the order ceases to have effect."").

Page 103, line 21, at end insert—
(" In paragraph 8(1) of Schedule 1 to that Act (persons entitled to bail: supplementary provisions), after the words "subsection (6)(d)" there shall be inserted the words "or (e)"").
Page 103, line 26, leave out ("(2)") and insert ("(1)(a)").
Page 103. line 27, after ("offence),") insert ("for the words "that subsection" there shall be substituted the words "subsection (3) of that section".
(2) In subsection (2) of that section,").
On Question, amendments agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 299:
Page 103, line 31, at end insert—
(". In subsection (1) of section 65 of the 1980 Act (meaning of "family proceedings"), after paragraph (o) there shall be inserted the following paragraph—
"(p) sections 11 and 12 of the Crime and Disorder Act 1998;"").
The noble Lord said: I spoke to this amendment on 10th February. I beg to move.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 300:
Page 104, line 23, at end insert—
("Mental Health (Scotland) Act 1984 (c. 36)
30A.—(1) In subsection (8A) of section 74 of the Mental Health (Scotland) Act 1984 (effect of certain directions), for the words "the Crime and Punishment (Scotland) Act 1997" there shall be substituted the words "Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993".
(2) The amendment made by sub-paragraph (1) above shall be deemed to have had effect from 1 January 1998.").
The noble and learned Lord said: In moving this amendment I shall speak to Amendments Nos. 307, 307B, Amendments Nos. 312 to 317, 335, 336A, 336B, 337, 338 and 338A. This group of 15 government amendments contains minor and consequential amendments in relation to Scotland. The amendments are to Schedules 7 and 9 and Clause 96. The amendments to Clause 96 and to Schedule 9 are consequential on amendments to Schedule 7.
Like the noble and learned Solicitor-General, I do not propose to go through each amendment individually, but if Members of the Committee have any questions about particular amendments I shall answer them. There is one matter that I wish to draw to the attention of the Committee, which concerns Amendment No. 307B. Section 18(2) of the Criminal Procedure (Scotland) Act 1995 was amended by Section 47 of the Crime and Punishment (Scotland) Act 1997. The effect of that amendment was to substitute a reference to "relevant physical data" for a reference to,
"fingerprints, palm prints and other prints and impressions from an external part of the body".
Unfortunately, the consequential amendment to Section 18(3) was not made. This amendment rectifies that. Section 47 of the 1997 Act came into effect on 1st August 1997, hence the reason for subsection (2) of this amendment. The retrospective effect of this provision is in favour of the person from whom the samples have been taken. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 301 to 306:
Page 105, line 40, leave out ("accused has been arraigned") and insert ("indictment has been preferred").
Page 106, line 12, at end insert—
("Legal Aid Act 1988 (c. 34)
.—(1) In subsection (4) of section 20 of the Legal Aid Act 1988 (competent authorities to grant representation under Part V), after paragraph (a) there shall be inserted the following paragraph—
"(aa) which sends a person for trial under section 42 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences),".
(2) After subsection (5) of that section there shall be inserted the following subsection—
"(5A) A magistrates' court which has a duty or a power to send a person for trial under section 42 of the Crime and Disorder Act 1998 is also competent, before discharging that duty or (as the case may be) deciding whether to exercise that power, as respects any proceedings before the Crown Court on the person's trial."
(3) In subsection (3)(a) of section 21 of that Act (availability of representation under Part V), after the word "committed" there shall be inserted the words "or sent".
(4) In subsection (4) of that section, after the word "commits" there shall be inserted the words "or sends".").
Page 106, line 16, leave out ("section 11") insert ("sections 11 and 12").
Page 107, line 20, leave out from ("orders),") to end of line 21 and insert ("for the words "the supervision of a probation officer" there shall be substituted the word "supervision").
Page 107, line 22, leave out ("(3)(a)") and insert ("(3)").
Page 107, line 23, leave out from ("orders)") to end of line 24 and insert—
("(a) in paragraph (a), after the words "probation officer" there shall be inserted the words "or member of a youth offending team"; and
(b) after that paragraph there shall be inserted the following paragraph—
"(aa) in relation to an offender who is subject to a drug treatment and testing order, the probation officer responsible for his supervision;"").
The noble and learned Lord said: I have already spoken to Amendments Nos. 301 to 306, and I beg leave to move them en bloc.
On Question, amendments agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 307 to 307B:
Page 111, line 35, leave out from beginning to ("(interpretation)") in line 36 and insert ("67.—(1) After subsection (1) of section 4 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (persons detained under the Mental Health (Scotland) Act 1984) there shall be inserted the following subsection—
"(1A) This Part of this Act shall apply to a person conveyed to and detained in a hospital pursuant to a hospital direction under section 59A of the 1995 Act as if, while so detained, he was serving the sentence of imprisonment imposed on him at the time at which that direction was made.".
(2) The amendment made by sub-paragraph (1) above shall be deemed to have had effect from 1 January 1998.
67A. After subsection (7) of section 27 of that Act").
Page 111, line 41, at end insert—
("67B. In Schedule 6 of that Act (transitional provisions), after paragraph 6B there shall be inserted the following paragraph—
"6C. Where a prisoner released on licence is treated by virtue of the provisions of this or any other enactment as a prisoner whose licence was granted under section 2(4) of this Act, the validity of his licence shall not be affected by the absence in the licence of such a condition as is specified in section 12(2) of this Act.".").
Page 112, line 25, at end insert—
("74A.—(1) For section 18(3) of the 1995 Act (prints and samples) there shall be substituted the following subsection—
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"(3) Subject to subsection (4) below, all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.".
(2) The amendment made by sub-paragraph (1) above shall be deemed to have had effect from 1st August 1997.").
The noble and learned Lord said: I have already spoken to the amendments. I beg to move them en bloc.
On Question, amendments agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 308 to 311:
Page 113, line 19, leave out from ("evidence") to end of line 23 and insert ("have been served on the accused under regulations made under paragraph 1 of Schedule 2 to the Crime and Disorder Act 1998; and
(b) a copy of the notice under subsection (5) of section 42 of that Act has been served on him under that subsection."").
Page 114, line 2, at end insert ("under section 30 of the Crime and Disorder Act 1998"").
Page 114, line 4, at end insert (", and for the words "the words in parentheses" there shall be substituted the words "subsection (2A) above").
Page 114, line 7, at end insert—
("(2) In subsection (5)(e) of that section, for the words "paragraph 3(2)(a)" there shall be substituted the words "sub-paragraphs (2)(a) and (2A) of paragraph 3".
(3) In subsection (8) of that section—

(a) in paragraph (a), the words "to revoke the order and deal with an offender for the offence in respect of which the order was made" shall cease to have effect;

(b) in paragraph (b), for the words "paragraph 3(2)(a)" there shall be substituted the words "sub-paragraphs (2)(a) and (2A) of paragraph 3".").

The noble and learned Lord said: I have already spoken to Amendments Nos. 308 to 311. With the leave of the Committee, I beg to move those amendments en bloc.
On Question, amendments agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 312 to 317:
Page 116, line 37, leave out ("shall cease to have effect") and insert ("is hereby repealed").
Page 116, line 39, leave out ("shall cease to have effect") and insert ("are hereby repealed").
Page 116, line 48, leave out ("shall cease to have effect") and insert ("is hereby repealed").
Page 117, line 2, leave out ("shall cease to have effect") and insert ("are hereby repealed").
Page 117, leave out lines 3 to 16 and insert—
("() In the entry relating to the Prisoners and Criminal Proceedings (Scotland) Act 1993—

(a) the words relating to sections 1, 3(2), 5, 6(1), 7, 9, 12(3), 16, 17(1), 20, 24, and Schedule 1;

(b) in the words relating to section 14, the words "and in subsection (4), the words "short-term";

(c) in the words relating to 27(1)—

(i) the words "the definitions of "short term prisoner" and "long-term prisoner" and";

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(ii) in the words relating to the definition of "supervised release order" the words "and the words from "but" to the end":

(d) the words relating to section 27(2), (3), (5) and (6), are hereby repealed.").

Page 117, line 18, leave out ("shall cease to have effect") and insert ("are hereby repealed").
The noble and learned Lord said: With the leave of the Committee. I beg to move the amendments en bloc.
On Question, amendments agreed to.
Schedule 7, as amended, agreed to.
Clause 95 agreed to.
Schedule 8 [Transitional provisions and savings]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 318:
Page 117, leave out lines 25 to 28.
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 319 to 321:
Page 118, line 34, leave out ("(2)(e)") and insert ("(2)(f)").
Page 118, line 43, leave out from ("words") to ("there") in line 44 and insert (""sections 37(5) and 39(1) and (2)" there were substituted the words "section 37(5), 38(2) and 39(1) and (2)", and for the words "section 39(1) or (2)"").
Page 118, line 47, leave out from ("Act)") to end of line 1 on page 119.
The noble and learned Lord said: These are three minor amendments to Schedule 8, which is concerned with transitional provisions. Amendment No. 319 corrects a printing error, and Amendments Nos. 320 and 321 concern the transitional arrangements necessary for the implementation of Clause 84—under which short-term prisoners who breach their licence conditions will be recalled to prison in the same way as long-term prisoners—that is to say, on the recommendation of the Parole Board. As I have already indicated, we have no plans to implement Clause 84 at present. With the leave of the Committee, I beg to move the amendments en bloc.
On Question, amendments agreed to.
Schedule 8, as amended, agreed to.
Schedule 9 [Repeals]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 322 to 331:
Page 119, column 3, leave out line 34 and insert—
("In section 16, subsection (10) and, in subsection (11), the words "seventeen or".")
Page 120, line 3, column 3, leave out (-and "of a probation order"").
Page 120, line 4, column 3, at end insert—
("Section 11. Section 14(8).")
Page 120, line 10, column 3, at end insert—
("Section 32(5).")
Page 120, line 21, column 3, at end insert—
("In Schedule 7, paragraph 120(b).")
Page 120, line 28, column 3, at end insert—
("In section 3(1)(a), the words "under section 1A above".")
Page 120, line 34, column 3, at end insert—
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("Section 66(3).")
Page 120, line 38, column 3, at beginning insert—
("Section 69(2).")
Page 120, column 3, leave out lines 42 and 43.
Page 121, line 24, column 3, leave out ("paragraph") and insert ("paragraphs 10, 11 and").
The noble and learned Lord said: I have already spoken to Amendments Nos. 322 to 331 and, with the leave of the Committee, I beg leave to move those amendments en bloc.
On Question, amendments agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 332:
Page 121, line 24, column 3, at end insert—
("In Schedule 12, paragraph 17(3).").
The noble and learned Lord said: Amendment No. 332 provides for the repeal of paragraph 17(3) of Schedule 12 to the Criminal Justice Act 1991. That paragraph deals with transitional arrangements for sentences of detention in a young offender institution for 15 to 17 year-olds. The paragraph will become redundant on the introduction of the detention and training order, so therefore should be repealed. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 333 and 334:
Page 121, line 44, column 3, at end insert—
("In section 35(8)(a), the words "to revoke the order and deal with an offender for the offence in respect of which the order was made"")
Page 121, line 44, column 3, at end insert—
("Section 43(4).")
The noble and learned Lord said: I have spoken to these amendments and, with the leave of the Committee, I beg leave to move them en bloc.
On Question, amendments agreed to.
Lord Hardie Lord Hardie moved Amendment No. 335:
Page 122, line 47, column 3, after ("(7)"") insert (", in the entry relating to the Prisoners and Criminal Proceedings (Scotland) Act 1993, the words relating to sections 1, 3(2), 5, 6(1), 7, 9. 12(3), 16, 17(1), 20, 24, 27(2), (3), (5) and (6) and Schedule 1, in the words relating to section 14 the words "and, in subsection (4), the words "short-term" and in the words relating to section 27(1), the words "the definitions of "short term prisoner" and "long-term prisoner" and" and "and the words from "but" to the end"").
On Question, amendment agreed to.
Schedule 9, as amended, agreed to.
Clause 96 [Short title, commencement and extent]:
[Amendment No. 336 had been withdrawn from the Marshalled List.]
Lord Hardie Lord Hardie moved Amendments Nos. 336A to 339:
Page 76, line 18, after ("section") insert ("and paragraphs 30A, 67 and 74A of Schedule 7 to this Act").
Page 76, line 31, leave out ("section 89") and insert ("sections 89
and (Transitional provisions in relation to certain life prisoners)").
Page 76, line 32, after ("paragraphs") insert ("30A,").
Page 76, line 32, after ("67,") insert ("67A,").

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Page 76, line 32, after ("67,") insert ("67B,").
Page 76, line 34, at end insert—
("() section 52(9);").
The noble and learned Lord said: I have already spoken to these amendments and, with the leave of the Committee, beg to move them en bloc.
On Question, amendments agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 340 to 345:
Page 76, line 37, after ("paragraphs") insert ("4A(1) and (3),").
Page 76, line 41, after ("Paragraphs") insert ("4A(1) and (3),").
Page 77, line I. leave out ("Paragraph") and insert ("Paragraphs 4A(1) and (3) and").
Page 77, line 2, leave out ("that paragraph") and insert ("those paragraphs").
Page 77, line 3, leave out ("Paragraph") and insert ("Paragraphs 4A(1) and (3) and").
Page 77, line 4, leave out ("that paragraph") and insert ("those paragraphs").
The noble and learned Lord said: I have spoken to Amendments Nos. 340 to 345 inclusive and, with the leave of the Committee, I beg leave to move them en bloc.
On Question, amendments agreed to.
Clause 96, as amended, agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move, That the House do now resume.
The Deputy Chairman of Committees (Lord Dean of Harptree): The Question is, That the House do now resume. As many as are of that opinion say "content". To the contrary, "not content".
Viscount Colville of Culross: Should not the noble Lord report the Bill to the House with the amendments?
The Deputy Chairman of Committees: I beg the Committee's pardon. I am grateful to the noble Viscount for reminding me of my duties.
Baroness Farrington of Ribbleton: I beg to move, That the House do now resume.
The Deputy Chairman of Committees: The Question is, That the House do now resume. As many as are of that opinion say "content". To the contrary, "not content". The contents have it.
House resumed: Bill reported with amendments.

Greater London Authority (Referendum) Order 1998
8.28 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman)rose to move, That the draft order laid before the House on 23rd February be approved [24th Report from the Joint Committee].
The noble Baroness said: My Lords, this order covers all the detailed provisions needed to enable the London referendum to take place on 7th May in accordance with the provisions of the Greater London Authority (Referendum) Act 1998. As will be evident, the order is neither a lightweight nor a simple document, but a draft was made available in the Library of the House during the later stages of the Act and I hope that it has proved useful.
In preparing the order, we have drawn heavily on the valuable precedents set by the Referendums (Scotland and Wales) Act 1997. The supplementary provisions worked well in that legislation; indeed, noble Lords will recall that they were specifically debated and approved by this House as a schedule to the Bill.
Of course, in London there are special circumstances because we are combining the referendum poll with the local elections. We have had extensive consultations with returning officers, chief executives and electoral administrators at all stages in drafting this order and I would like to support the comments made earlier today by my honourable friend the Minister for London in thanking these people for all their hard work. They have made a major contribution to our preparations.
The order as a whole takes the usual local election procedures and adapts them for the purposes of the referendum. This approach gives the referendum procedures the usual protections afforded by election law, while also making it possible for the London borough council elections to be held at the same time.
At first glance, the order appears rather complex, but that is not the case as in many places much of it amounts to little more than changing the word "election" to "referendum". However, as I have said, the order contains a number of provisions particular to the referendum and I shall explain the most significant in a little detail.
Article 7 of the order sets out who will act as returning officers for the referendum. This would be the returning officer in the local council election for each London borough.
Article 9 sets out the form for the back of the ballot paper. It is very similar to that used in local elections and follows the form used in previous referendums. The wording on the front of the ballot paper is something about which we had a great deal of debate in this House, and is as prescribed in the schedule to the Greater London Authority (Referendum) Act 1998.
We have held careful consultations on the form of the ballot paper with chief executives, electoral administrators and in particular with the Royal National Institute for the Blind—for whose help we are indebted.
As a result we have devised a ballot paper which I am told is a fine shade of daffodil yellow and uses a large and bold typeface. I am sure that noble Lords will agree that the design is clear and comprehensible; it is intended to make sure that the referendum ballot paper is able to be read without difficulty by almost everybody. I am placing copies of the proposed ballot papers in the Library of the House.
Article 10 deals with counting the votes. The principal Act provided for the appointment of a chief counting officer for London and of counting officers to count the votes in each borough. It places on those counting officers the normal requirements to make arrangements for the count and gives them the powers to enable them to do so.
Finally, as I indicated earlier, the adaptations made in Articles 12 and 13, and the schedules associated with them, make all the necessary amendments to representation of the people legislation to enable the referendum to go ahead. The adaptations made are broadly equivalent to those in the schedule to the Referendums (Scotland and Wales) Act 1997.
The order follows a well precedented formula which draws upon the valuable work done in the recent Scottish and Welsh referendums. We have consulted extensively with experienced returning officers and others in preparing these considered proposals and have sought to make the whole process as open as possible. The order is essentially a technical measure, but we believe that it will enable an efficient and smooth referendum to take place on 7th May. I commend it to the House.
Moved, that the draft order laid before the House on 23rd February be approved [24th Report from the Joint Committee].—(Baroness Hayman.)
Baroness Hamwee: My Lords, I am grateful to the Minister for explaining various of the order's provisions. I should like to ask just a few questions which I am sure I could have answered for myself had I devoted more attention to the fine print of the order. I am afraid that there has been a little laziness on my part.
Article 9, to which the Minister referred, relates to the number printed on the back of the ballot paper and counterfoil. Can the Minister confirm that the same provisions with regard to official marks will apply to both the ballot for the referendum and that for the local elections? I am not seeking to make particular comments about perforations, but I am anxious to be assured that voters will not be required to check for different things when they enter a polling station. We know what happened at Winchester and on other occasions. My concern is merely that there are not different procedures.
I have some minor questions relating to Schedule 2. The hack of the ballot paper is to carry a reference to the name of the electoral ward in the borough. I understand that it is intended to announce the count for each borough at that borough—in other words, the public will know how each borough has voted in the referendum. What is the purpose of having the name of the ward on the ballot paper? Is it intended that the count shall be detailed on a ward-by-ward basis?
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Why is it intended that the same ballot box should be used, given that that will mean that counting officers have the job of separating the ballot papers? I am sure that the matter has been discussed with returning officers, but simply as a matter of procedure I am interested in understanding why it is thought that that is more satisfactory than attempting to have separate ballot boxes. I recognise the problems that are likely to arise if even one or two ballot papers are placed in the wrong box. Inevitably, the whole lot has to be emptied.
My final comment relates to Part I(7) of Schedule 2 and to applications for postal and proxy votes. I rather laboured the point during our debates on the Bill, and I am grateful to note that I need not have done so because the provision is here. Indeed, the Minister gave assurances to that effect during the passage of the Bill. I am glad that only one application will be required.
Baroness Seccombe: My Lords, perhaps I may add the thanks of these Benches to the Minister for her explanation and presentation of the order. Our only comment is to express our sadness that there are not to be two questions. However, we debated that at earlier stages. We wish the referendum well and we shall watch with the greatest of interest to see what the people of London decide.
Baroness Hayman: My Lords, I am grateful to both noble Baronesses for their comments and for their welcome for the procedures that we have established.
The noble Baroness, Lady Hamwee, asked about the numbers on the back of the ballot papers. I can confirm that the provisions for official marks will be the same for both polls, so there will not be the problem to which she alluded. As I understand it, the inclusion of the name of the ward on the backs of individual ballot papers is at the request of the returning officers and is for their own administrative reasons. I confirm that the count will be on a borough, not on a ward-by-ward, basis. That will be the way in which the results are announced. There was considerable concern that it should be possible for borough results to be seen. There is no intention of sub-dividing the results to ward level.
On the issue of the two ballot boxes, the noble Baroness is absolutely right. Returning officers expressed the view, from their experience, that the likelihood—indeed, the certainty—that some ballot papers would be put in the wrong box was such that having two boxes would not simplify matters, but would complicate them. It was felt that a full separation would be needed anyway. As I understand it, when two polls have been held on the same day in the past, it has been found to be more efficient to have one ballot box and to carry out the separation afterwards.
I was grateful for the remarks of the noble Baroness about the provisions for applying for absent votes. As I have said many times in the House, the Government hope that the campaign on absent votes will be successful and will filter through to other elections.
On Question, Motion agreed to.
House adjourned at twenty-one minutes before nine o'clock.