HL Deb 31 March 1998 vol 588 cc154-264

3.17 p.m.

Read a third time.

Lord Ackner

moved Amendment No. 1: Before Clause 1, 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—

  1. (a) advising the Secretary of State on the adequacy and effectiveness of the criminal law and procedure of the criminal courts;
  2. (b) advising the Secretary of State on such aspects of the penal system as he may from time to time refer to it; and
  3. (c) at the request of the Sentencing Advisory Panel referred to in section 71 below, providing such advice and assistance as may enable the panel the better to discharge its functions.
(2) The Advisory Council shall consist of—
  1. (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
  2. (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, hut 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: My Lords, four weeks ago, on 3rd March, noble Lords debated for about an hour in Committee the merits of setting up a standing advisory council on criminal justice and the penal system. The function of the council was to address the important issues of criminal and penal policy dispassionately, authoritatively and constructively. In the words of my noble and learned friend the Lord Chief Justice, the purpose of the amendment, 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".— [Official Report, 3/3/98; col. 1132.] Those who spoke in favour of the amendment in addition to my noble and learned friend the Lord Chief Justice were: the former Lord Chief Justice, my noble and learned friend Lord Lane, and the former Chief Justice of Northern Ireland, my noble and learned friend Lord Lowry, who has recently retired as a Law Lord. Those who spoke in favour of the amendment included two former Home Secretaries, the noble Lord, Lord Hurd, and the noble Lord, Lord Merlyn-Rees, and former Ministers of the Home Office, the noble Lords, Lord Carlisle and Lord Elton.

The amendment was further supported by the noble Earl, Lord Longford, the noble Viscount, Lord Tenby, the noble and learned Lord, Lord Mayhew, the noble Lords, Lord Thomas and Lord Goodhart, and the noble Baroness, Lady David. The only Member of your Lordships' House who spoke against the amendment was the noble Lord, Lord Henley, who recognised the uncomfortable position that he was occupying by likening himself to a character in a Bateman cartoon which would have been entitled, "The man who spoke against the amendment".

The noble Lord was typically frank. He said that he was filled with alarm by the very idea that party politics should be taken out of the criminal system. He considered that the council which we propose would look like an attempt to imprison and impose constraints upon the Home Secretary when he comes to make policy. He appeared totally to overlook that what is proposed is a purely advisory council.

While the Home Secretary will no doubt consider the advice, he may or may not accept it. The distaste of the party of the noble Lord, Lord Henley, for independent advice was strikingly demonstrated towards the end of the previous Parliament when the Government resisted an amendment to give a right of appeal against tariffs set in murder cases—the same right of appeal as exists in the case of discretionary life sentences.

The amendment, which in no way limited the Home Secretary's ultimate right to set the tariff, was carried in this House but reversed in the other place. The noble Lord, Lord Williams of Mostyn, accepted that the amendment raised a number of issues which were worthy of further consideration. On the very day that the amendment came up to be considered on Report, I was provided with a copy of a lengthy letter from the Home Secretary to the Lord Chief Justice, explaining why he resisted the amendment. In order the better to answer the points made by the Home Secretary, and anticipating, as indeed was the fact, that the amendment would be reached at some time after 10 p.m. I did not move the amendment.

I turn now to the Home Secretary's letter. In essence, he contends that there is a formidable array of bodies from which he can obtain all the advice that he needs. I propose to comment seriatim on "known bodies", but before I do so I should like to emphasise that however formidable those bodies are, the Home Secretary has not begun to tackle the ever-increasing overcrowding in prisons.

On 24th March of this year I had the advantage of listening to an address given by Joyce Quin, Minister of State at the Home Office, on the Government's plans for the Prison Service. That address was given to the Parliamentary All-Party Penal Affairs Group. The following day I listened to and, indeed, took part in the Motion moved by the noble Lord, Lord Allen of Abbeydale, calling attention to the problems facing the Prison Service in England and Wales.

Both Joyce Quin and the noble Lord, Lord Hoyle, who summed up on behalf of the Government in the debate to which I have just referred, recognised the very serious overcrowding which exists currently, with a prison population of just over 65,000. They accepted the projection by the Home Office statisticians in January that the figure could well rise to nearly 83,000 within seven years. A worst-case scenario put the figure at 92,600, which means 24 new prisons at a cost of !2 billion.

Sadly, I do not believe that the worst-case scenario is altogether unrealistic. The new mandatory life sentences and the new minimum sentences are bound to put up the prison population, and the obligation upon judges in future to explain that, generally speaking, only half the sentence imposed will be served in prison will fuel public criticism of the sentences, and will probably result in an overall increase.

Both Joyce Quin and the noble Lord, Lord Hoyle, were emphatic that overcrowding in prison must be reduced; that the trend to over-use custody must be reversed; but neither suggested that that could be achieved; neither advanced any strategy for softening the current harsh climate of public opinion.

There was, what the lawyers may refer to in a different context, a settled hopeless expectation that the rise would continue. Over the past 12 months, the prison population has risen by over 6,000—an average of about 115 per week. At that rate of increase, a prison of the size of Dartmoor would be needed every five weeks to accommodate that rise without increasing overcrowding.

It must however be startlingly obvious that the public and the media need to be re-educated as to the value of imprisonment: what it costs; what it achieves, or fails to achieve; and what are the alternatives; what are their costs, their success and failure rates, and so forth. There must be a wider understanding of the limited contribution imprisonment can make to an effective law and order policy.

The public must be made aware of the very limited extent to which rehabilitation can be achieved where serious overcrowding is on the increase, and where budget cuts have reduced, if not eliminated in some establishments, the provision of constructive time, designed to enable the prisoner to leave the prison establishment better equipped to earn his living and behave in a responsible manner towards society.

There is of course a world elsewhere. We need extensive research into the penal systems of other European countries in order to discover why their prison populations are significantly lower than ours; how they have managed to persuade their public to accept punishment within the community. Here public opinion, to a very large extent, condemns community penalties and crime prevention programmes as being soft and woolly. That opinion needs to be effectively challenged and altered. Non-custodial sentences of the right kind are not a weak or soft option. New schemes are having considerable success with non-violent offenders.

I believe that the standing council, unlike the various bodies referred to by the Home Secretary to which I shall now turn, could provide the Home Secretary with vital material to reverse the trend, but that of course is just one area in which the standing council could produce an effective contribution.

I turn now to the formidable array of bodies referred to in the Home Secretary's letter to the Lord Chief Justice. First, a general comment: an important virtue of the proposed standing council is that it takes criminal policy out of the political arena; secondly, it centralises the source of advice in one body whose function it is to survey the whole scene rather than spreading it over a series of committees.

The first source of advice identified by the Home Secretary is the Criminal Justice Consultative Council. Its function, as I stated in the debate on 3rd March, is to reconcile the potentially conflicting aims of the disparate agencies of the criminal justice system. For instance, the police, the Crown Prosecution Service, the Probation Service and the Prison Service. Its terms of reference, set out in Annex A of the summary of its activities in 1996–97, is to promote better understanding, co-operation and co-ordination in the criminal justice system, in particular by considering reports about developments in and affecting criminal justice; considering other information about the operation of the system; and overseeing the arrangements and special conferences. I should have thought that committee is hardly within the context of an advisory committee concerned with the whole penal and criminal justice system.

The next body is the Trial Issues Group. It is a Home Office body concerned essentially with trial procedures; for example, the potential limitations on the right of cross-examination by the accused acting in person of an alleged victim of rape. It deals with only a tiny segment of the criminal justice and penal system.

The next reference is to Her Majesty's Chief Inspectors of Prisons and Probation. They are concerned with policy issues within prison. Their function is not to advise on the criminal justice policy or the penal policy. The Home Secretary then referred to the Law Commission. Its concern is the substantive criminal law; bringing the law up to date and getting rid of anomalies. It is not concerned with criminal justice policy or with the penal system.

Next the National Audit Office. It is involved in the financial supervision and monitoring of activities, bodies or organisations to ensure efficiency, effectiveness and value for money. It does not focus on that with which we are concerned.

There is then a reference to the Youth Justice Task Force, but it is concerned with practical suggestions to improved the quality of justice relative to young offenders. The Youth Justice Board is referred to in Clause 35 of the Bill. It is primarily a monitoring body. Of course, the Sentencing Advisory Panel will be an important source of advice, particularly in relation to the Court of Appeal Criminal Division, but it will not research the wider policy issues that the standing advisory council is designed to do. It is unlikely to communicate with the public or the media, or to seek to remedy public misapprehensions such as that all judges are soft on crime. It will not be concerned with policy questions: for example, whether it was wise to get rid of the partially suspended sentence, or whether the reviewable sentence recommended some 25 years ago by the Butler Committee is a sentencing option which should be available in order to cater for an offender who, if given a determinate sentence, is likely to be discharged while still a danger.

In the course of the debate in Committee, the noble Lord, Lord Williams of Mostyn, said: The real question is: would an advisory council of the sort proposed give further value?".—[Official Report, 3/3/98; col. 1144.] I submit that the answer is an emphatic yes. I beg to move.

3.30 p.m.

Lord Hurd of Westwell

My Lords, I commend the amendment tabled by the noble and learned Lord, Lord Ackner. He returns to the point which we discussed in detail in Committee. I do not need to rehearse all the arguments because he has produced them again most succinctly.

I, too, have been privy to the Home Secretary's explanation of his reluctance to agree to the amendment. I am grateful to him for explaining in such detail the wide range of bodies which stand behind his shoulder or at his elbow. He ranged wide in his search for bodies which could conceivably be described as relevant to the matter, and he produced a long list. I am not in favour—I do not believe that many of your Lordships would be in favour—of multiplying such bodies without need. It may be good for every Secretary of State from time to time to examine the bodies which stand behind his shoulder or at his elbow to see whether any should be wound up and some made brisker and briefer.

However, the amendment raises a different issue: whether any of them do the job which the proposal is designed to meet. Two bodies appear at the outset prima facie to be relevant; but, on examination, I do not believe that they are. The Sentencing Advisory Panel does not advise the Home Secretary; it advises the Court of Appeal on sentencing guidelines. It operates entirely within the existing law, whatever that may be. It does nothing in respect of new sentences or maximum sentences, and nothing outside the existing body of statutes. Therefore, that body does not meet the case we have in mind.

The Criminal Justice Consultative Council was set up as a result of the Woolf Report, although it does not have a statutory base. It has a distinguished chairmanship and membership. Has it fulfilled the kind of purposes which we discussed in Committee? I have no criticism of the body, but perhaps the reason why it has not fulfilled all expectations relates to its membership. Perhaps that is a shade defensive and by nature inclined to be affectionate to the status quo, whereas those of us who support the amendment believe that in this respect the status quo is not working well.

Perhaps I may rehearse the amendment's two main purposes in lay language. The first is to provide Parliament and the public with a time for reflection on particular proposals, perhaps after some tragedy or some drama. The case for having that time for reflection appears to have been made in practice over and over again. The advisory council would not be a decisive or executive body nor would it have powers of decision. It would simply provide advice and a time for reflection so that Parliament—this place and the other place—could reach calmer and wiser decisions.

The second purpose is to prevent discussions on criminal justice matters degenerating into adversarial squabbles. I would not adopt the same phrases as my noble and learned friend. It is inevitable that these matters are political and it is right that they should receive more parliamentary discussion in both Houses, because they acutely and sensitively touch the lives of citizens. The question is not whether there should be parliamentary discussion, but whether it should take an adversarial form, as it has tended to do in the past few years, or whether it should be treated more like discussions on foreign and defence affairs when the convention in both Houses of Parliament is that different views are held across parties, the aim being to reach a solid decision out of parliamentary discussion. I believe that the advisory council proposed in the amendment could help that discussion.

Those are the two main aims of the amendment. I do not believe that they are met by any of the bodies in the wide spectrum which at present advise the Home Secretary and therefore I continue to support the amendment.

The Earl of Longford

My Lords, I rise again to offer my strong support for the amendment. It would help the Home Secretary in his all-important task of re-educating the public in penal affairs. We are all aware that the Home Secretary is a high-minded man and a Christian democratic—even a Christian socialist—and is afflicted with an appalling dilemma which will haunt him for the period of his much valued stewardship. Is he going to do what is right, or what is popular? We have been told by a famous man, the late Lord Butler, that politics is the art of the possible; but a famous poet, Crosland—nothing to do, I believe, with our much-lamented Secretary of State—once said, I trod the road to hell: There were things I might have sold And did not sell". Anyway, that was the gist of it. He trod the road to hell, but there were things he did not do.

There is a problem for the Home Secretary. He must know what is right—of course he knows what is right. He knows that the present policy, adopted by the previous government in their last fatal phase, is wrong. But of course, his duty is to maintain what is called the confidence of the public. We had a very impressive debate in this House. Apart from those who were instructed elsewhere, everyone agreed that the present policy is wrong—the policy adopted from our friends opposite. That was the situation following the debate here.

But what were we told by the noble Lord, Lord Baker? He told us that it would have been difficult to imagine such a debate in the House of Commons. He said that on such an occasion Labour MPs would have found it difficult to criticise their own Government, and Conservative MPs would not wish to appear soft on crime. Therefore, there is presently a conflict between the two Houses. It is not the traditional conflict of a lot of reactionary old landowners against enlightened young people in the other place. Rather, it is knowledge against ignorance. That is the present situation between the two Houses.

What shall we do about it? We have a Home Secretary to whom we wish everything good, since he is a good Christian Socialist and a high-minded man. What is he going to do during his few years in office? He does not want to go down in history as a man who made no effort at all to deal with the situation. Being a Christian, no doubt he will go back to St. Augustine, who told us that we must hate the sin and love the sinner. That is very difficult to carry out, particularly when we are all moved by the sufferings of the victims and their relatives.

What is he to do about it? He has that terrible problem. It is not made any easier by the Sun newspaper, which is read by millions of people every day, including myself, although not many other noble Lords. The Sun, writing about certain paedophiles, referred to them as "such hyenas", and said that they have no rights. That is what millions of people are being taught—that certain human beings have no rights and therefore we can "give them hell". That is the teaching.

What happens as a result? I visit a prisoner regularly. He told me that in a cell close to his he heard the sudden noise of a chair dropping to the floor. The prisoner, a sex offender, was committing suicide because he was to shortly leave prison and would have to face the hatred inspired by the Sun newspaper and other tabloids. That is the situation.

I do not say that there is an easy solution. Most of us, when faced with serious crime, are horrified, shocked and revolted. It is very difficult indeed to strike the perfect balance indicated by St. Augustine. However, we look to the Home Secretary, a high-minded man, to do his best. He recognises his responsibilities. This amendment will help him, and he will be assisted by a group of powerful advisers, who I hope will command great public confidence. They will help him to do his Christian duty.

3.45 p.m.

Lord Thomas of Gresford

My Lords, the noble and learned Lord, Lord Ackner, used three words to describe the approach of an advisory council. It would consider the issues that arise in relation to the criminal justice system, "dispassionately, authoritatively and constructively".

Perhaps I may take each of those words separately; first, the word "dispassionately". It must surely be obvious that the debate about the criminal justice system over the past five or six years has been marred by "adversarial squabbling", to adopt a phrase from the noble Lord, Lord Hurd, between the political parties at a time when all the parties are concerned about the rise in crime and what to do about it. One would have hoped for a constructive consensus that would receive the support of all parties which considered those issues seriously.

The next word is "authoritatively". The Home Secretary, in a letter to the Lord Chief Justice, referred to a number of agencies, and the noble and learned Lord, Lord Ackner, set out those agencies. I shall refer to just two of them. The Criminal Justice Consultative Council sounds a very important body. It is chaired by the vice-president, Lord Justice Rose, who is a person of great distinction. I have no doubt that the council does extremely valuable work. However, if one reads its latest newsletter, published in February 1998, what comes across strongly is that it is a body which responds to issues that are brought to it. For example, the main heading in the newsletter refers to the publication by the Home Secretary of the first report on ethnic monitoring by the police. Indeed, a Home Office research study, Ethnic monitoring in police forces, was brought to the Criminal Justice Consultative Council for it to consider, which it undoubtedly did. It said what a good paper it was and the item in the newsletter ends in these terms: The Criminal Justice Consultative Council has received a presentation about the two ethnic monitoring reports. The Council and its Area Committees will be closely involved in future work on this issue, and in particular in work on the broader issue of ethnic monitoring across the criminal justice system as a whole". That is all. There is nothing to be initiated by the council and no research is suggested. It is merely the recipient of Home Office reports, which it considers with some care.

At a national criminal justice conference, that same body was addressed by a number of people and there was discussion about the serious conflict of interest between confidentiality and the sharing of information. It was concerned with the definition of "dangerousness", a matter which arises from time to time in discussion on the criminal justice system.

The report ends in this way: The Home Office and the probation service are taking forward work arising from the conference", not the council. It has met, and its members have had a chat and examined issues brought to them. They have given a view. But future work is to be done by the Home Office and the Probation Service. Therefore, it is a body which responds and does not initiate.

The Trials Issues Group, the second body referred to by the Home Secretary, also produced a newsletter in February 1998 concerned with the standard of witness care, prosecuting minor road traffic cases, joint performance management between the CPS and the police and a manual of guidance for the preparation, processing and submission of files which the police provide to the CPS. I am sure that that is extremely valuable work; however, it does not add anything at all to the consideration of criminal justice policy, which is the purpose behind the council as suggested by the noble and learned Lord.

Finally, the noble and learned Lord, Lord Ackner, used the word "constructively". It is a fact that an impossible situation is arising in the prisons which is bound to erupt in danger and violence. The Government do not really seem to appreciate that. As the noble and learned Lord said, it is not possible to have the equivalent of Dartmoor built every five weeks to house the projected increase in the prison population.

As the noble and learned Lord said—and I support this to the hilt—the public and the media have been led astray over the past four or five years. They have to be re-educated and they have to consider the cost as opposed to the result—in other words, how much they are paying and what are the re-offending rates. They must consider keeping people out of prison and encourage them to become constructive citizens for the future. "Constructively" is the word that I would endorse. We are indeed discussing a council which could pool together all the strands and take out of politics, and out of the adversarial squabbling, these very important issues which will give rise to trouble in the future. I support the amendment.

Lord Henley

My Lords, I rise briefly and with some trepidation to speak again on the amendment. I say, "trepidation", because when I spoke to the amendment on the last occasion, as the noble and learned Lord, Lord Ackner, reminded the House, I was the only one to speak against it—apart from the noble Lord, Lord Williams, if he did speak against it. That was certainly not quite clear from the speech that he made at the time, but I gather that the Government have since hardened their line and that they intend to oppose the amendment.

I suspect that I achieved relatively little when I spoke on the last occasion. Indeed, all that I seemed to achieve was to inspire the noble Baroness, Lady David, to come out in support of the amendment. I imagine that she is still in support of it and that she will be siding with the noble and learned Lord when he presses the amendment to a Division. However, that is obviously a matter for the noble Baroness, and for her alone.

The noble and learned Lord very kindly reviewed my arguments and I have no complaint about the manner in which he did so. I have to say that they have not changed and I shall not, therefore, repeat them today. However, the noble and learned Lord seemed to imply that I had overlooked the advisory nature of the standing council that he suggests. I have to tell the noble and learned Lord that I did not overlook the advisory nature of the council. I believe that that was something which I dealt with in response to my noble friend Lord Renton. I made it quite clear that, from my own experience, "advisory" could be interpreted in a number of different ways. Indeed, some Ministers could find themselves more bound by an advisory body than the noble and learned Lord seemed to imply. Certainly the constraints that he is hoping to impose on Ministers by taking these matters, as he puts it, out of party politics—that is, out of adversarial politics—would seem to suggest that he is hoping that such a committee could be a constraint on a Home Secretary and one who is, after all, responsible to Parliament.

As I said, I spoke against the amendment on that occasion and I do so again now. We shall of course listen most carefully to what the Government say in response. I must make it quite clear that I cannot offer my support to the noble and learned Lord in his amendment. However, I believe that it is a matter for the Government to make their case as to why they oppose it. Certainly we on these Benches—or, perhaps I should say, I myself—will not be supporting the amendment; nor will we be supporting the Government in the Division Lobby.

Lord Dholakia

My Lords, I welcome the amendment. The noble and learned Lord has performed a public service by highlighting what is required in the process of criminal justice. I say that because, in the matter of crime and punishment, the need for a co-ordinated approach has been well rehearsed; indeed, it is not something new. What has come out very clearly is the fact that there is a need to look at the criminal justice system from the process of arrest right through to the prison situation. The discrepancies within the system have been clearly demonstrated on a number of occasions. They have been clearly highlighted by Louis Blom-Cooper and Seán McConville in a paper published by the Prison Reform Trust. If the Minister has not read the document, I recommend that he does so. It is not good enough to say that the Government receive ample and adequate advice. Indeed, despite all this "ample advice", why is it that we have a prison system which is bursting at the seams? What are the issues that we should be highlighting?

I suspect that one of the things that we are not very clear about quite often is the use of public opinion as a means of promoting legislation on criminal justice. Yet, study after study has demonstrated that the public are not as punitive as some people seem to imply. There is a tendency for a knee-jerk reaction to legislation. The classic example would be the dangerous dogs legislation which was introduced some years ago. We tend to forget the impact that such legislation has on society over a long period of time. If the Government say that they have adequate consultation or that they receive adequate advice, I should certainly like to know what sort of advice they received on parenting orders, which we are discussing in this Bill. I should also like to know what sort of advice they received as regards curfews. Indeed, what sort of advice did they receive on the age of criminal responsibility? In other words, were people adequately consulted on such matters? I suspect not.

Perhaps I may give the House an example which is supported by what the noble and learned Lord, Lord Ackner, said about the need for research. I believe that to be crucial and perhaps I may cite one or two examples in that respect. There is a disproportionate number of black people in British prisons. I have said that before and I repeat it. Indeed, 15 per cent. to 17 per cent. of our prison population is black, as against their representation of 5 per cent. in the community; 25 per cent. to 27 per cent. of women in prison are black—that is, one in four. There is no evidence to show that black people commit more crime than others, yet the criminal justice system has produced that discrepancy. Despite a number of representations that I made to the Home Office in my capacity at the Commission for Racial Equality on matters of criminal justice, the matter was not seriously considered— and would never have been addressed—until we commissioned a study with the Institute of Criminology at Oxford to look into the process of the sentencing of black people. In that study over 4,000 cases of people who had already been sentenced were examined in certain courts in the West Midlands. What came out most clearly was the discrepancy in sentencing and the greater propensity to send black people to prison.

I do not believe that it is important at this moment in time to look at the detail of that particular study, but, without such a body with that function of advising, and so on, such matters would not have been adequately considered by the Home Office at that particular time. What the noble and learned Lord, Lord Ackner, is quite rightly proposing is not a body that will dictate: he is talking about such a body in terms of advising the Secretary of State on the adequacy and effectiveness of criminal law; advising the Secretary of State on certain aspects of the penal system; and, providing such advice and assistance as may enable the panel the better to discharge its functions". All we are talking about again and again are the advisory functions which the Government may or may not wish to take on board.

Perhaps I may just add that the extent to which research should form the basis of our criminal policy is most important. We would not have been aware of the situation until research and other evidence demonstrated clearly that across the country 25 per cent. of people who are stopped and searched are black youngsters. Some 40 per cent. of people who are stopped and searched in London are black people. Only one in 10 of those incidents results in some kind of criminal justice process. These are the discrepancies we have created within the criminal justice system. I do not denigrate the important function of the criminal justice council, but that body seems to be reactive. What we require is an independent body outside the political arena which is able to advise the Home Secretary on issues of paramount importance. I support the amendment.

4 p.m.

Lord Elton

My Lords, as two Front-Bench speeches have been permitted from the Liberal Democrats, I hope the House will permit two Back-Bench speeches from the Conservative Party. Grateful as I am for the support of my noble friend on the Front Bench, I regret that, loyal as I may be, I think no one who has served in the Prison Service can be bound by loyalty to his own party not to support this amendment. I shall speak briefly because we have been over this ground before. I remind your Lordships that it was apparent that the increasing flow of prisoners into the Prison Service over the past few years was politically motivated. Once the political bandwagon was rolling there was no machinery by which any politician could resist it—with an approaching general election—without suffering political damage.

This amendment proposes a small piece of machinery to which a Home Secretary, and a shadow Home Secretary—let that be emphasised—could turn for advice which the public might respect, although it may be contrary to what the tabloid newspapers advocate. That is what has been lacking. That is why we have an unbalanced system at the moment because the fourth estate is more powerful than your Lordships and the other place together on issues such as this. If we can recruit an ally by means such as this I must support that proposal whatever my Front Bench advises.

Lord Lester of Herne Hill

My Lords, I have not spoken previously upon this Bill. I rise to speak briefly in support of this amendment. I do so because during the years I worked for my noble friend Lord Jenkins of Hillhead at the Home Office I became aware of the grave limitations within the Home Office as it lacked precisely such a body. What I particularly like about this amendment is that it provides a relatively independent and dispassionate mechanism for giving authoritative advice to the Home Secretary without binding him in any way, without diluting his power in any way, and involving the senior judiciary in the process.

It seems to me significant that the amendment has the support of the noble and learned Lord the Lord Chief Justice and of the senior judiciary. Speaking for myself, I believe that this would enhance the intelligent development of penal policy and criminal justice policy. My noble friend Lord Jenkins of Hillhead, who is not in the Chamber at the moment, has indicated to me that, speaking as a former Home Secretary, he would have regarded a body of this kind as being quite invaluable during his stewardship. I therefore very much hope that this amendment will be carried and carried in another place too.

Lord Lane

My Lords, at the risk of repeating some of the matters which have been mentioned before, I add one or two brief words. For justice to be done in the realm of criminal penalties and trials one of the prime requirements is consistency. Over the past 10 years or more there have been wild fluctuations in political views as to how those matters should be conducted. Those fluctuations may well have been caused by too much regard being paid to that will-o'-the-wisp, public opinion. Public opinion is fostered, if not caused, by the tabloid press and that is a poor basis upon which to base matters as important as these. It seems to me, if I may say so, that the one great advantage of this amendment would be to prevent that sort of fluctuation happening in the future and to provide some consistency and some basis upon which courts can operate knowing that the whole system will not change overnight. This proposed amendment seems to me to be ideal. It certainly has no disadvantages that one can see.

Lord Lowry

My Lords, we are debating a very political subject. It is one which cannot be taken out of politics. I prefer to put it in the following terms. Let us have an advisory committee which in a sense comes into politics to redress the balance because, as noble Lords have pointed out, we have this thing known as public opinion which is largely moulded by the press. It may not even reflect what people really think about subjects on which perhaps they are not particularly well informed but on which they have, or are easily made to form, strong views.

The noble Earl, Lord Longford, is legendary for his humanity. I thought that he advanced the clinching argument from a government point of view, no matter which government are in power. On this occasion he has been humane to the Home Secretary because he pointed out the enormous advantage it is to a man otherwise of the most humane and, may I say, sensible outlook when he is faced with the kind of situation which the noble Lord, Lord Elton, described so graphically to have this advisory committee. There are other committees. My noble and learned friend Lord Ackner and the noble Lord, Lord Hurd, have analysed the relative unsuitability of those committees to achieve the object which your Lordships are considering. Therefore I shall not go into further detail on that point.

The advisory committee which is proposed will give so much better support and provide so much better protection—if I may use that word—to a conscientious Home Secretary than any or all of the committees which we have heard mentioned. For that reason, as well as those which have been advanced already, I strongly support the amendment. With respect, I strongly commend it to the Government.

Lord Oliver of Aylmerton

My Lords, I came here this afternoon intending not to speak on this amendment. But having listened to the debate I cannot refrain from saying that anyone listening with an open mind cannot, I think, but be utterly convinced of the rightness of this amendment. We have all been educated by the press and the media into a belief that the only effective method of dealing with crime is prison. Perhaps we should bear in mind those chilling words of Oscar Wilde: I know not whether laws be right nor whether laws be wrong, all that we know who lie in gaol is that the wall is strong and that each day is like a year, a year whose days are long". The statistics and the projections which have been adumbrated by my noble and learned friend Lord Ackner indicate that the Government of the country and all of us face not just a serious situation but a crisis. Surely to goodness there is only one question: aye or no—do we need, ought we not to have, an independent advisory body to look into this and to assist the Secretary of State in what is essentially a very difficult political decision? To that question there can be only one answer and for that reason I support the amendment.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)

My Lords, it would be useful to focus on the terms of the amendment to see what is requested and what consequences might sensibly be anticipated. The amendment recommends the constitution of a standing advisory council with the following purposes:

  1. "(a) advising the Secretary of State on the adequacy and effectiveness of the criminal law and procedure of the criminal courts;
  2. (b) advising the Secretary of State on such aspects of the penal system as he may from time to time refer to it; and
  3. (c) at the request of the Sentencing Advisory Panel referred to in section 71 [of the Bill] providing such advice and assistance as may enable the panel the better to discharge its functions".
Your Lordships will forgive my pointing out what the amendment seeks. With infinite respect, what is sought by the amendment is not likely to produce the remedies and the panaceas for which so many of your Lordships earnestly hope.

It is said that this will be a protection for the Secretary of State. The Secretary of State looks for and seeks no such protection. He looks for informed advice. I will deal later with the sources of advice he has at present. No committee of the sort referred to in your Lordships's speeches will produce an immediate reduction in our overcrowded prison system.

It is easy to say that the media are ill-informed; that the press get it wrong. The noble and learned Lord, Lord Ackner, made his stance quite plain. He wishes to see criminal policy taken out of the political arena. The noble Lord, Lord Hurd, having once been an elected representative, did not go that far. Nor do the Government go that far. We believe that the press has a function in a free democracy. Simply because the views of some newspapers are different from some of our opinions or prejudices does not disentitle them having the opportunity of making their point.

If a party of whatever political complexion places itself before the electorate with the request "Please will you vote for use?", the electorate will rightly and inevitably say "What is your policy in those areas which deeply concern us?"—not because of the puff of the moment in a tabloid newspaper. I do not view our fellow citizens in that light.

One of the central issues that concerns the people of this country is whether or not they are enabled by the government of the day and the criminal and penal regimes of the day to have a reasonable, decent opportunity to live a calm life. That is one of the duties of the Secretary of State for Home Affairs. I repeat, he looks for no protection. He does not wish to shirk the responsibilities for which the Government were elected and the reason why the Prime Minister entrusted him with this difficult work.

It was said today that the question may be: do we do what is right or do we do what is popular? I reject that as a necessary option. Sometimes what is right is popular and sometimes what is right is deeply unpopular. It is said that the public need re-education. The public are entitled to information, they are entitled to avoid dictation from us.

I deliberately mentioned the purposes of the amendment because, having heard the detailed speeches of the noble and learned Lord, Lord Ackner, and others, and having reflected upon the helpful tone of the intervention of the noble and learned Lord the Lord Chief Justice, we thought very carefully about whether we should change our views. We approached it with an open mind. As the noble and learned Lord, Lord Ackner, has said, the Home Secretary had a full discussion with the noble and learned Lord the Lord Chief Justice and wrote fully to him in the letter that has been quoted.

First, I deal with the adequacy and effectiveness of the criminal law. We have the Criminal Justice Consultative Council which has on it representatives from throughout the criminal justice system and we have local practitioner-level groups. We believe that that is a good, practical source of advice.

4.15 p.m.

Lord Thomas of Gresford

My Lords, will the Minister tell us what that council initiates? What research does it carry out?

Lord Williams of Mostyn

My Lords, it can deal with any issue it thinks relevant. I had intended to deal with the question of initiation later, but the noble Lord offers me the opportunity. Paragraph (b) in the amendment states that the council is to advise the Secretary of State on such aspects of the penal system as he [the Secretary of State] may from time to time refer to it". I continue. We have the Trial Issues Group which deals with the effectiveness of the procedure of the criminal courts. That is part of the amendment. The reports from the Chief Inspectors of Prisons and Probation do not limit themselves solely and simply to a report of the facts they have seen. Even if they were to do so, their reports cast ripples which affect penal policy. They produce thematic reports on issues of concern in the penal field.

We have the Law Commission which does excellent, informed, authoritative work. What is its work? It is to deal with the effectiveness of the criminal law. That is what this amendment is asking for another body to do.

We have the Audit Office and the Audit Commission which deal with efficiency and effectiveness. We have reports which are of great value from the Institute of Criminology. We have reports from international institutes. We have a very well run research and statistical department in the Home Office.

Added to all these, within this Bill will be the representative youth justice task force. As the Home Secretary mentioned in the letter to which reference has been made, the youth justice board will provide advice on the operation of the youth justice system, and the sentencing advisory panel will have regard to the range of disposals available.

That is not all. I mentioned—I hope not disagreeably—that we live in a representative democracy. The House of Commons Select Committee on Home Affairs does a great deal of valuable work. I do not believe that it is party politically partisan. Its work, which is necessary on occasion, has at least two purposes: first, to address legitimate public complaints; and, secondly, to provide advice to the Home Secretary as appropriate. Most of these bodies were not in existence when the predecessor body carried out its work, sometimes rather slowly, before its abolition.

We gave the matter a good deal of careful thought. I hope that the nature of my response to your Lordships today indicates that. We want to have consultation. We want to have openness. But we want to avoid that extremely seductive temptress: "There is something wrong in the prison system. Set up another body".

Lord Ackner

My Lords, I am deeply grateful to those who have taken part in the debate and supported the amendment.

I was struck when the noble Lord, Lord Williams, said that there would be no immediate reduction in the prison population if this amendment were passed. No one has ever claimed that there would be. A process of re-education would take some time. The noble Lord is right that there will be no immediate reduction in the prison population. But there would be no reduction at all in the prison population if the matter were left to the Government as it stands at the moment because they have suggested no initiative of any kind which will bring about the reduction in the prison population.

As one of its functions, the council can seek to bring out information which will show the limits of imprisonment as a means of dealing with crime. It will bring out, one hopes, the advantages, in some but not all cases, of punishment within the community. It will seek to explain how it is that we have over 3,500 lifers in prison which is more than all of western Europe put together. It will seek to explain why, if there is a good explanation, we send more people to prison and for longer than almost every other European country.

There is a prospect of some useful research being done. The reaction of the Government is very much in the category of the reaction of the noble Lord, Lord Henley: "Don't embarrass me with sound advice because I might be obliged to take it". That seems to be the only reaction.

I nostalgically looked back at a debate which occurred in October 1997 and read this from the speech of the noble Lord, Lord Williams: We listen with care to the senior judges. We value their contribution. I do not put this in a partisan way, but it was a source of great disquiet and concern that, by the end of the previous Government's term, the senior judges were not able to feel that their voice was listened to with the decent regard to which they were entitled. It took the notable contribution of, among others, the late Lord Chief Justice to try to remedy that. No one who heard his contribution could fail to have been affected by it".—[Official Report, 23/10/97. col. 871.] Plus ca change; plus c'est la même chose. The Lord Chief Justice has recently set out in a long and learned speech that the mandatory life sentence for murder should no longer stand. We in this House have recently debated the proposition supported by the Home Affairs Committee that the time that a person spends in prison following a conviction for murder should not be determined by a politician in secret without any right of appeal. I do not think that the judiciary is being listened to any more by this Government than by the previous one.

It is an important amendment. If the Government are to reject the advantages which this amendment gives, let it be clearly on the record. I therefore seek the opinion of the House.

4.24 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 114; Not-Contents, 105.

Division No. 1
Ackner, L. [Teller.] Brentford, V.
Addington, L. Brightman, L.
Aldington, L. Brookeborough, V.
Allenby of Megiddo, V. Calverley, L.
Alton of Liverpool, L. Campbell of Alloway, L.
Ashbourne, L. Carlisle, E.
Beaumont of Whitley, L. Charteris of Amisfield, L
Beloff, L. Chichester, Bp.
Bingham of Cornhill, L. Cuckney, L.
Bledisloe, V. Cullen of Ashbourne, L.
Darcy de Knayth, B. Mashamof Ilton, B.
David, B. Mersey, V.
Davidson, V. Meston, L.
Dholakia, L. Middleton, L.
Elis-Thomas, L. Molyneaux of Killead, L.
Elton, L. Munster, E.
Exmouth, V. Nelson, E.
Ezra, L. Newby, L.
Falkland, V. Nicholson of Winterbourne, B.
Rather, B. Noel-Buxton, L.
Foley, L. Nolan, L.
Geraint, L. Ogmore, L.
Gormanston, V. Oliver of Aylmerton, L.
Gray of Contin, L. Onslow, E.
Halsbury, E. Park of Monmouth, B.
Hamilton of Dalzell, L. Rennell, L.
Hampton, L. Renton, L.
Harding of Petherton, L. Rix, L.
Harmar-Nicholls, L. Rochester, L.
Hayhoe, L. Rodgers of Quarry Bank, L.
Henderson of Brompton, L. Russell, E.
Hilton of Eggardon, B. Sainsbury, L.
Holderness, L. St. John of Bletso, L.
Holme of Cheltenham, L. Saltoun of Abernethy, Ly.
Hooson, L. Sandberg, L.
Hurd of Westwell, L. Sandwich, E.
Hutchinson of Lullington, L. Shannon, E.
Hutton, L. Shaughnessy, L.
Hylton, L. [Teller.] Simon of Glaisdale, L.
Hylton-Foster, B. Slynn of Hadley, L.
Jellicoe, E. Stodart of Leaston, L.
Jenkins of Hillhead, L. Strathcona and Mount Royal, L
Kinloss, Ly. Taverne, L.
Kitchener, E. Taylor of Warwick, L.
Knollys, V. Tenby, V.
Lane, L. Teynham, L.
Lawrence, L. Thomas of Gresford, L.
Leicester, Bp. Thomas of Gwydir, L.
Lester of Herne Hill, L. Thomas of Walliswood, B.
Linklater of Butterstone, B. Thomson of Monifieth, L.
Long, V. Tope, L.
Longford, E. Tordoff, L.
Lowry, L. Wakefield, Bp.
Ludford, B. Walpole, L.
Mackay of Clashfern, L. Weatherill, L.
Maddock, B. Wharton, B.
Mar and Kellie, E. Wynford, L.
Acton, L. Falconer of Thoroton, L.
Ailesbury, M. Farrington of Ribbleton, B.
Alport, L. Fitt,L.
Archer of Sandwell, L. Gallacher, L.
Ashley of Stoke, L. Gilbert, L.
Barnett, L. Gladwin of Clee, L.
Berkeley, L. Glenamara, L.
Biffen, L. Glentoran, L.
Blackstone, B. Gordon of Strathblane, L.
Borne, L. Gould of Potternewton, B. [Teller.]
Brooke of Alverthorpe, L.
Brookes, L. Graham of Edmonton, L.
Bruce of Donington, L. Gregson, L.
Burlison, L. Grenfell, L.
Callaghan of Cardiff, L. Hardie, L.
Carmichael of Kelvingrove, L. Haskel, L.
Carnegy of Lour, B. Hayman, B.
Carter, L. [Teller.] Hollis of Heigham, B.
Cledwyn of Penrhos, L. Howell, L.
Clinton-Davis, L. Howie of Troon, L.
Davies of Oldham, L. Hoyle, L.
Diamond, L. Hughes of Woodside, L.
Dixon, L. Hunt of Kings Heath, L.
Dormand of Easington, L. Irvine of Lairg, L. [Lord Chancellor.]
Elles, B.
Evans of Parkside, L. Islwyn, L.
Janner of Braunstone, L. Rendell of Babergh, B.
Jay of Paddington, B. Richard, L. [Lord Privy Seal.]
Jenkins of Putney, L. Rogers of Riverside, L.
Kilbracken, L. Sefton of Garston, L.
Levy, L. Sewel, L.
Lockwood, B. Shepherd, L.
Lofthouse of Pontefract, L. Shore of Stepney, L.
McCarthy, L. Simon, V.
McIntosh of Haringey, L. Simon of Highbury, L.
Marsh, L. Smith of Gilmorehill, B.
Mason of Barnsley, L. Stallard, L.
Merrivale, L. Stoddart of Swindon, L.
Milner of Leeds, L. Strabolgi, L.
Mishcon, L. Symons of Vernham Dean, B
Molloy, L. Taylor of Blackburn, L.
Taylor of Gryfe, L.
Monckton of Brenchley, V. Thomas of Macclesfield, L.
Monkswell, L. Thurlow, L.
Montague of Oxford, L. Tryon, L.
Murray of Epping Forest, L. Turner of Camden, B.
Nicol, B. Varley, L.
Orme,L. Walker of Doncaster, L.
Paul, L. Wallace of Coslany, L.
Plant of Highfield, L. Watson of Invergowrie, L.
Ponsonby of Shulbrede, L. Whitty, L.
Prys-Davies, L. Williams of Elvel, L.
Ramsay of Cartvale, B. Williams of Mostyn, L.
Randall of St. Budeaux, L. Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

4.35 p.m.

Lord Henley

moved Amendment No. 2: Page 2, line 24, after ("years") insert ("or more than five years)"). The noble Lord said: My Lords, this is a third run round some fairly familiar territory that we examined both in Committee and on Report. In Committee I suggested that perhaps it might be best to leave these matters entirely to the discretion of the courts—that is, the antisocial behaviour orders—and that it should be a matter for the court to decide what the period should be, having no maximum or minimum.

Noble Lords on the Liberal Benches at that stage suggested merely having a maximum. We came back to the matter on Report, and I suggested having no minimum length but having a maximum. This is a third attempt to suggest, having accepted the Government's arguments that these are serious matters to be taken seriously, that it is right that there should be a minimum. However, I still have a number of concerns about the lack of a maximum.

I would have thought that a maximum of five years would provide the courts and the Government with a long enough period for all the circumstances that one might imagine. In fact I find it difficult to imagine the sort of occasion when the courts might wish to impose an antisocial behaviour order for longer than five years. I should be very grateful if the noble Lord, when he comes to respond, could say on what occasion the Government envisage that the courts might wish to impose these orders for a period greater than five years.

I would also suggest that five years is a very long period, as perhaps many of your Lordships would accept. If the mischief was continuing and it was felt necessary that the antisocial behaviour order should be for longer than five years, then five years would at least be an appropriate time to review the situation and to start the process again to consider whether it was necessary for the antisocial behaviour order to be continued or to make a new order. Therefore I feel that a limit of five years would be appropriate. I beg to move.

Lord Williams of Mostyn

My Lords, as the noble Lord said, we have discussed this amendment, or similar ones, in Committee and on Report. We do not believe that the maximum ought to be limited. There is no such limitation on restraining orders in the Protection from Harassment Act of 1997.

The noble Lord asked what the basis of our approach was. It is that the court needs to be able to look at the full circumstances of a case and make its own judgment in the discrete circumstances of that case. It would, I imagine, wish to look at the whole of the circumstances, the nature of the person who was subject to the order, the nature of the complaints and perhaps even the nature of the complainants in the whole pattern.

I agree it might well he that a teenager would be suitably served by a two-year or a three-year order. It might well be six or seven for an older individual, particularly where antisocial behaviour has persisted over a number of years prior to the making of the order. There might be some circumstances where the court feels that no limit should be set. One has to bear in mind that this order is a prohibitory order and it requires that the person who is subject to it should do no more than have a decent regard for the susceptibilities and liberties of others. We are not able, therefore, having revisited this topic, to accept this amendment, and I would ask the noble Lord, on the basis of the further material I have given, to consider withdrawing his amendment.

Lord Henley

My Lords, I shall in due course withdraw the amendment. It is not appropriate to subject the House at this stage to another Division. I am sorry that the noble Lord was not prepared to accept my arguments and that the Government still believe it right that there should be discretion at one end but not at the other for courts in making their decision. I believe that there will be relatively few occasions—and I think the noble Lord implied this in his answer—when the courts would want to exercise these powers for longer than five years. I hope it will be a very rare occurrence for these orders to be made for longer than five years. No doubt in due course the Home Office will offer guidance to magistrates' courts about how to make use of such orders. I hope it will consider offering guidance suggesting that an order for longer than five years will be made only in the most exceptional circumstances. Having noted what the noble Lord said in response to my amendment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Hylton

had given notice of his attention to move Amendment No. 3: Before Clause 8, insert the following new clause—


(".—(1) It shall be the duty of every local authority to apply to the court for an order to he made under section 44 of the 1989 Act (orders for emergency protection of children) in respect of any child (under 16) who is—

  1. (a) found to resort to or be on any premises in the area of the local authority for the purpose of having unlawful sexual intercourse with men or a particular man, or
  2. (b) cautioned or charged with an offence of loitering or soliciting in a street or public place in the area of the local authority for the purposes of prostitution.
(2) The duty referred to in subsection (1) may, with the agreement of the local authority, be discharged by an authorised person as defined in section 44(2) of the 1989 Act. (3) In this section "local authority" has the same meaning as in the 1989 Act.").

The noble Lord said: My Lords, I rise to speak to the group of amendments, Amendments Nos. 3, 15, 16, 17, 40, 77, 78 and 79. Amendment No. 40 is unnecessary and will not be moved. Amendments Nos. 77 and 78 are linked with Amendment No. 3. My noble kinsman Lord Mar and Kellie will move the amendments in his name relating to Scotland. I intend to move only Amendment No. 16, for reasons which I shall explain.

At the previous stage of the Bill there was unanimous agreement in all quarters of your Lordships' House that child prostitution is a serious and growing evil in many cities throughout the country. It is fed by the large number of young people under 18 and of children under 16 who run away from their own homes and from local authority care. In this context, what is supposed to happen when children abscond from children's homes? Forty-three thousand young people become missing persons each year in England and Wales. It has also been estimated that 10,000 children will have run away 10 times or more before their 16th birthday. They are the ones with nowhere to live, no income, no schooling and no links to state services or responsible adults. It is these children who all too easily become the victims of pimps and paedophiles. They are easy prey, and prostitution often appears to them to be the only means by which they can survive.

The Bill is intended to be a preventive measure. It is therefore fitting that it should provide ways of preventing child prostitution and means for increasing the penalties on those who organise it or indulge in it and of rescuing as many as possible actual and potential victims. I therefore examined carefully what was said by noble Lords at Report stage, and in particular the words of the noble Lord, Lord Williams of Mostyn, speaking for the Government. I have abandoned the attempt to decriminalise prostitution by young people and have avoided any reference in my amendments to young people between the ages of 16 and 18. Amendment No. 3 would have increased the present power of local authorities to provide care and protection to children at risk by making it a duty.

This duty would have covered not only those loitering or soliciting for purposes of prostitution but also those found at any time in brothels.

In view of the resource problems that were so well explained at Report stage by my noble friend Lord Northbourne, the linked amendment would have delayed the coming into effect of the new duty by two years. A subsequent amendment would have increased the penalties for procuring.

Amendment No. 16 is new and increases the penalties for illegal and criminal intercourse with girls under 16. That is the amendment that I intend to move in due course. I urge your Lordships to support me on this point, thereby showing your total condemnation of intercourse which is all too likely to damage the physical as well as the mental and emotional health of the children involved.

The reason that I shall not move Amendments Nos. 3, 15, 77 and 78 is that I am advised that they relate to matters already decided by your Lordships and I have agreed with the noble Lord the Leader of the House not to move them. I shall formally move Amendment No. 16 in due course, and I commend it to your Lordships. By passing that amendment, we shall take a small but highly desirable first step in dealing with the urgent matter of child prostitution. That amendment increases the penalties on those convicted of having sexual intercourse with girls under 16, which will be particularly useful in dealing with persistent offenders. If Her Majesty's Government wish to include offences against boys, which are much less frequent, I hope that they will do so in another place.

[Amendment No. 3 not moved.]

Clause 9 [Parenting orders: Supplemental]:

Baroness David

moved Amendment No. 4: Page 8, line 6, leave out subsection (1). The noble Baroness said: My Lords, I put this amendment down again because there was such strong support for it from all Benches and not a single voice against at Report stage except the Minister's. I withdrew the amendment at that stage because the Minister said that he would be having discussions with other Ministers at the Home Office and I therefore hoped that there might be a different response.

I wrote to my noble friend pressing my case. I felt that, if magistrates had the power themselves to decide about making a parenting order in the case of 16 and 17 year-olds, they could be trusted, having information about the family before them, in the case of under 16s. It seems almost insulting to magistrates not to give them that power.

However, since I put the amendment down, I have received a letter from the Minister. It is perfectly clear that there will be no give and no change in his attitude. I have the agreement of my noble friend Lady Kennedy, who also has her name to the amendment, that it would be a waste of time to continue with this argument as the result is so very clear. When the Minister has spoken, if he wishes to do so, I shall withdraw the amendment. I beg to move.

Lord Williams of Mostyn

My Lords, as the noble Baroness implies, I set out the Government's position quite fully and I not sure that I can shed any further light by repeating the earlier arguments.

Baroness David

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Solicitor-General (Lord Falconer of Thoroton)

moved Amendment No. 5: Page 12, line 19, after ("of") insert ("a parent or"). The noble and learned Lord said: My Lords, this amendment responds to an amendment tabled by the noble Baroness, Lady Anelay, at Report stage. The noble Baroness's amendment had the effect of extending the definition of responsible person in Clause 14(2) to include the parent of the child concerned. I indicated at that time that the Government recognised there was potential for a problem if such a change to Clause 14(2) was not made and that the Government would bring forward a suitable amendment at Third Reading. My noble friend Lord Williams referred to such an amendment in his letter of 26th March to the noble Lord, Lord Henley. Amendment No. 5 responds to this undertaking. I beg to move.

Baroness Anelay of St Johns

My Lords, it is very pleasant to be in the position of being able to thank the noble and learned Lord the Minister for responding to the points which I put on this matter at Report stage. It was a modest amendment but one which was practical in extent in that it will protect innocent parents under the age of 18 who take their children out and about between the hours of nine and six in areas where there may be a curfew order. I am grateful to the Government for listening on this matter. I certainly hope that it may be a portent of even greater things to come. But on this matter, I thank the noble and learned Lord.

On Question, amendment agreed to.

Lord Alton of Liverpool

moved Amendment No. 6: After Clause 16, insert the following new clause— VIDEO RECORDINGS DESIGNATION (".—(1) In subsection (1)(a) of section 4 of the Video Recordings Act 1984 ("the 1984 Act"), at the end there shall be inserted the words "and having special regard to the likelihood of video works, in respect of which such certificates have been issued, inciting their viewers to anti-social behaviour, crime or disorder". (2) At the end of section 4 of the 1984 Act there shall be inserted the following new subsection— (9) The Secretary of State shall not make any designation under this section unless he is satisfied that adequate arrangements will be made for an appeal in prescribed circumstances against a determination on the grounds that a video work submitted for the issue of a classification is likely to incite its viewers to anti-social behaviour, crime or disorder."."). The noble Lord said: My Lords, this amendment stands in my name and that of the noble Baroness, Lady Young, and the noble Lords, Lord Dholakia and Lord Ashbourne.

In February we had a short debate about the appointment of Mr. Andreas Whittam Smith as the new president of the British Board of Film Classification. It was an appointment which I welcomed. I said then that it was the intention of a cross-party group of Peers to lay an amendment to the Crime and Disorder Bill before your Lordships' House today. The purpose of that amendment is to strengthen the public's right to have their voice heard when gratuitously violent films are released and, inter cilia, also to provide better protection for children. I am very pleased to say that I have received a faxed note today from the National Society for the Prevention of Cruelty to Children, which says: The NSPCC believes that the appeals procedure against classification decisions should he opened up by the British Board of Film Classification. The procedure should allow bodies like us, as well as members of the public, to appeal if it is felt that the film or video might incite viewers to anti social behaviour such as child abuse". My amendment is jointly sponsored by the noble Baroness, Lady Young, by the noble Lords, Lord Ashbourne and Lord Dholakia, and by many others, including the right reverend Prelate the Bishop of Hereford, the noble Lord, Lord Stallard, and more than 60 Members of your Lordships' House who have kindly added their names to the amendment, underlining the widespread concern about the proliferation of violent imagery and the disparity between the huge influence wielded by the industry and the comparative powerlessness of the public.

On 17th March the Daily Telegraph reported that Mr. Whittam Smith had told the Home Office: In principle he is in favour of broadening the system of appeals against classification". Under the present arrangement, film makers are allowed to appeal if they feel that a classification is too restrictive. Under the amendment before your Lordships today, organisations designated by the Home Secretary—those could be children's charities such as the NSPCC or the Children's Society or professional associations such as the Professional Association of Teachers—would be given the right, along with the industry, to appeal against BBFC decisions. Mr. Whittam Smith told the Daily Telegraph that he was, in principle in favour of anybody with a genuine interest in classification being able to use the appeals process". In reality, the amendment I am moving today is far more modest than the general right of appeal which Mr. Whittam Smith says he favours. This does not open the process to anybody.

In a letter to me dated 30th March, the noble Lord, Lord Williams of Mostyn, who has been extremely considerate and patient in dealing with the points which I have raised with him in meetings and in correspondence concerning this matter over the past few weeks, said that neither he nor Mr. Whittam Smith consider the amendment before your Lordships' House today to be workable. Let me deal directly with the arguments the Minister put in his letter of yesterday.

First, he says that the other interest groups will demand equal treatment. He does not say who the other interest groups are. It would be interesting for us to learn their identity. But if this argument were reduced absurdum, the National Association of Paedophiles would need to be treated comparably with the NSPCC, the National Front with the Commission for Racial Equality, and organisations promoting heroin and cocaine given comparable treatment to the National Drugs Misuse Council. It would be political correctness of the worst kind. The real point is that other interest groups are already represented by the industry and have an unlimited right of appeal already—a right currently enjoyed by no one else.

Secondly, in his letter dated yesterday, the Minister said that different groups may appeal against each other. But this is already perfectly normal in many appeal situations. The whole point is that the BBFC would then need to consider conflicting arguments in arriving at its decisions. The designated list of those who can appeal would be entirely composed of organisations chosen by the Home Secretary. What greater control could the Home Secretary wish for?

Thirdly, the Minister said: A person could only reasonably appeal against a classification decision after having seen the video work". What happens in reality is that if a film is trailed in advance and many people are aware of the general storyline, people then raise their opposition or their concerns. It will be at that point, in advance of circulation, that the Home Secretary's designated organisations could ask to see the film. Their response and/or their appeal could be required—it would be quite proper for the Minister to expect this—in a very short time span. That is wholly practical and it would add no more time than the industry adds when it appeals a decision under the existing arrangements.

The truth is that the Government could have come forward with their own proposal at any time since I wrote to them before the Committee stage. These are the same arguments deployed against my 1994 amendment, which I moved in another place, which was only successful when an all-party group told the Government to overcome what they claimed were insurmountable hurdles. I was especially grateful, I might add, for the help given to me at that time by the then shadow Home Secretary, Mr. Tony Blair.

In the February debate, to which I alluded, the Minister likened the situation to the planning process. It is not in many respects to be likened to the planning process. First, when an application for planning permission is made a local council will advertise the fact in the local papers and publish notices that an application has been made. The British Board of Film Classification is obliged to do no such thing. In fact it is only in the board's annual report, which is published a year after the event, that full details of the application for certification are available, by which time of course it is far too late to do anything about it. The only other method of letting the public know is by press release, which the BBFC has done on several occasions. By the time the public sees the film, again it is too late.

Secondly, if a local community does not like the decision made by a local council in the case of a planning decision, it is able to vote the local councillors out. A local council is demonstrably accountable. The British Board of Film Classification is not. A local planning authority is meant to be a democratic body. It was made quite clear in the report of the noble and learned Lord, Lord Nolan, that councillors are not simply meant to rubber-stamp planning applications but to play an active role.

In contrast, there has been continued and ongoing concern about the board's accountability. In another place in July last year Mr. Julian Brazier MP, the Member for Canterbury, raised the issue of the BBFC's openness and accountability. In response, via a press statement on 7th July 1997, the then director of the BBFC, James Ferman, defended the board's accountability by saying: Under the Video Recordings Act 1984 the board is already accountable to Parliament". Mr. Ferman continued by saying that if Mr. Brazier, looks in the House of Commons Library, he will find the hoard's very detailed annual reports which have set out every year since 1985 the composition of the board, its procedures and a statement of accounts". Section 6 of the Video Recordings Act 1984 does indeed require quite clearly that the designated authority, the BBFC, shall, as soon as it is reasonably practicable to do so after 31st December, make a report to the Secretary of State". It is clear that the board has previously failed lamentably to fulfil this responsibility. The last annual report that should have been published as soon as practicable after 31st December 1996, was not published until 2nd December 1997. I am grateful to Stewart Gregg of the Movement for Christian Democracy for discovering that and for pointing it out to me.

By any stretch of the imagination a whole year later clearly does not meet the requirement to present an annual report, as soon as is practicable. After its presentation to the Secretary of State, the annual report has only just been laid before Parliament. That means that at one point the latest information about the board's activities with which Parliament has been presented, was two years old. Even if the board does present its annual report on time it does little to address the issue of public participation. The board has a monopoly on film classification. It is also funded by the very industry that it is supposed to regulate.

Thirdly, I return to the analogy with planning law that the Minister drew in our February exchange. It is generally accepted that the granting of planning permission should not have detrimental effects on the people of a local area. However, there are different categories of planning applications to identify the application which might cause harm. In such cases licences must be obtained for certain properties to be able to act or trade in a certain way. Therefore, it would be more correct to draw a parallel between film classification and the granting of licences for the use of specific purposes. For instance, if premises are to be used as a betting shop or a public house, the police and local residents are frequently consulted. There are powers to take licences away if there are problems of harm, crime or disorder. There will be a court hearing at which local residents are able to make their case and the police are able to express their concerns. There are licensing magistrates.

To all intents and purposes this is a system of appeals. Provision is made for appeals in situations where there might be harm and so it should be for films as well. There is an ever-growing amount of evidence of the harm that violent images can cause. The BBFC's own annual report for 1996–97, page 3, says that handled irresponsibly, screen violence can teach techniques, encourage aggressive attitudes or reinforce aggressive behaviour. The House should be in no doubt about the seriousness of this situation.

Dr. Ken Parsons of Manchester University has demonstrated how children are being affected by the playing of violent video games. After a study of 61 teenagers over a six month period, he concluded that playing a game can be like real life for a child and that young people may well become addicted to violence as a result of playing the game. That is particularly grave if it happens during a time of key personal development. That is hardly surprising given that children are often playing computer games for up to 30 hours a week.

A recent Home Office report into the viewing behaviour of young offenders, which was unfortunately widely misreported in the press in January, finally concluded something that we all knew in our hearts for very many years. It states that there is some evidence that young people do imitate films. The BBFC needs to be much more open to the concerns of people drawn from right across the spectrum. Its present disposition is invariably élitist and often very patronising. For instance, the decision last week to allow films such as "Crash", "Lolita" and "Kiss" to be made available for home viewing illustrates how out of touch it has become. This is not about censorship because each of the films which I have just mentioned can be seen by adults in the cinema. But should they be easily available in thousands of homes where children are bound to see them?

For 25 years, at one level or another, I represented people in the inner city of Liverpool. In those streets and humble homes where often there was great material poverty, one thing that one would often find would be piles of videos, many of them totally unsuitable for young children and young people to see. The Daily Mail described last week's decision as being a gross betrayal of public interest. In a leading article it said of the BBFC, that, encased in their own celluloid bubble they appear to exist on another planet. They are utterly remote from that inhabited by ordinary people who have all too real reason these days to fear for the safety of their children.

Two days after the BBFCs decision, a national newspaper reported on the death of four children and their pregnant teacher gunned down in Arkansas by two boys aged 13 and 11. The older boy, Mitchell Johnson, had bragged to his school friends, Everybody I do not like is going to die. I have a lot of killing to do". Where does a child learn language like that? In a report in The Times of 26th March, Mr. Mike Huckabee, the Governor of Arkansas, said that he blamed a national culture in which films, television, language and music promoted a glorification of violence. He said, What makes all of us angry is that our culture would create the kind of atmosphere where a 11 or 13 year-old student could feel that the way to respond to whatever anger is inside them is to take up a whole battery of arms and indiscriminately shoot their fellow students and teachers". The report continued by saying that he was not sure much else could be expected in a country where children are exposed to tens of thousands of murders on television and films.

The prevalent gun culture in the USA is the other combustible in this lethal cocktail. But guns have always been present in American society. In contemporary times the old restraints have been displaced by the coarsening of society; by the glamorising of extreme violence and by the normalising of viciousness and brutality. Who can doubt that the culture of casual violence has played its part? Certainly, increasing numbers of film makers from the noble Lord, Lord Puttnam, to the actor, Dustin Hoffman, have been excoriating in their criticism of the industry for dressing up gratuitous violence as entertainment or as a form of art.

The stark reality is also that some parents are not fulfilling their responsibilities with regard to supervising what their children are watching. According to a survey in March 1997 by SMRC Childwise, nearly half of British children aged five to six years claimed that at weekends they watched television after the 9 o'clock watershed. These issues illustrate why we need to take action on a variety of fronts.

Perhaps I may draw the threads of this argument together and concentrate in my final remarks on why this amendment is practical, workable and urgently required. The BBFC state in its annual report that the most direct channel of accountability is replying to letters and telephone inquiries. This amendment will provide a far more satisfactory method of accountability and a way of allowing the public to voice their concerns, not merely their reactions on a telephone once it is too late.

The BBFC is faced with a huge problem about how to gauge public feeling. It is clearly frustrated that so often the tabloid press is left to be the vehicle for the expression of public opinion. Its annual report and press releases continually make reference to circumstances with which it has become depressingly familiar. It says that, somebody sees the film in question in its country of origin or at a film festival prior to international release and writes an article attacking it as the most dangerous film ever to be offered to the public. The press then canvass the opinions of dozens of prominent figures.

Then long before the BBFC has had a chance to view it and make its own analysis, it is deluged with warnings and injunctions not to permit the showing of the film. This amendment will provide a civilised and workable alternative to this vicious circle. The film "Crash", described by the BBFC as an unusual and disturbing film, concerns a couple who are unable to find sexual satisfaction inside or outside marriage and who fall in with a group of people who associate sexual excitement with car crashes. A BBFC press release says that their legal adviser took the view that rather than sympathising or identifying with the attitudes or tastes of the characters in this film, the average viewer would, in the end, be repelled by them. The film was granted an 18 certificate uncut for cinema release and now for home viewing by the viewer.

At the end of the press release James Ferman welcomed this advice by saying, Now the debate can move to the public arena". But there can be no adequate debate. There is no mechanism for allowing such a debate while the industry has total access to the appeals procedure and ordinary members of the public have no method of finding their way into the appeals procedures. This amendment will make a small contribution to challenging the prevailing culture of violence and it will enhance the role of those who protect children. Powerful vested interests prefer the status quo. I hope that tonight your Lordships will resist the status quo and those powerful vested interests and support the amendment. I beg to move.

Lord Ashbourne

My Lords, I thank the noble Lord, Lord Alton of Liverpool, for once again taking the initiative on video recordings. Some noble Lords present—although not many, I suspect—may remember that this is the subject on which I made my maiden speech in 1984. It is a sad reflection that many of the points that I made then need restating 14 years later.

I am concerned about the diet of sex and violence that we see in the video industry today. I realise that those with responsibility for classifying videos cannot control what Hollywood produces, but they are the guardians of deciding what material is appropriate for what age groups in this country. In this day and age, that is, indeed, a weighty task, so I support the proposals to add more definition to the task of the designated authority; namely, the British Board of Film Classification.

The last annual report from the BBFC acknowledges that video violence could affect individual behaviour. It states: The board's 1996 international conference on screen violence confirmed the causes for concern, which centre on the teaching of aggressive habits, the rewarding of antisocial impulses, and the fostering of increased callousness towards victims of violence through desensitisation". Surely then it is not unreasonable for noble Lords to support the proposal that before making a classification the BBFC should take into consideration the additional criteria of the likelihood that a particular video could incite the viewer, to antisocial behaviour, crime or disorder". One of my other concerns is the public accountability of the BBFC. I noted in the recent annual report descriptions of the home viewing panel and work with students, and I do commend these interactions with the video watching public, but they have still no right to appeal against classification decisions or to find out why certain decisions were made. They are more a test of, "Did the BBFC get it right?".

In 1984, I asked whether members of the public would be able to appeal to the Video Appeals Committee against a decision by the BBFC. I am pleased to see that the noble Lord, Lord Alton, has proposed that recognised organisations, other than producers, will be able to appeal against the classification decision in certain circumstances. This would give some balance back to a process that currently allows practically no redress when a particular video is released which causes public concern.

I know that other appeals processes do not give an objector this sort of opportunity to pursue their objections. But I am sure that noble Lords will agree that comparing a planning application to classifying a video cannot be taken to extremes. An application for one house will affect only one particular area. Licences for pubs and betting shops can be revoked if the licensee acts outside the terms of the licence.

In contrast, a video work is classified by an unelected body, is likely to be reproduced thousands of times, circulated around the country and shown in individual homes, where, by the very admission of the BBFC, it could influence an individual to antisocial behaviour. I believe that there should be an appeal process that allows an organisation apart from the video producer to appeal against a video classification in the circumstances outlined by the noble Lord, Lord Alton. I give the amendment my full support and I commend it to the House.

Lord Campbell of Croy

My Lords, I have sympathy with the principle of this amendment because of my concern about video games. The noble Lord, Lord Williams of Mostyn, knows that I initiated a debate on 9th February on a particular video game, Grand Theft Auto, which was advertised with the slogan, "CRIME DOES PAY". I shall not go over that ground again, but that game had been granted an 18 certificate, so that it was a criminal offence, with fairly heavy penalties, for it to be supplied to persons under the age of 18. Very few adults have played, or play, that game or similar computer games, so we have an anomalous situation where the game is played virtually only by those of 17 years or younger. It can only encourage car crime and joy-riding, leading to danger to life and limb. Indeed, in the game, once the car had been stolen, other crimes may be committed.

We in the United Kingdom have the worst record in Western Europe for car crime, and have had for some years. The game gives young people the impression that stealing cars and committing other offences is a normal pastime. I presume that there will be few noble Lords who are owners of cars who have not had their car stolen or broken into. That form of crime should not be encouraged.

The noble Lord, Lord Williams of Mostyn, gave me a very good reply from the Government's point of view; that the Government cannot do very much on the subject. He agreed that it is not possible to regulate situations in homes and within families or to charge parents with supplying the 18-certificate game to their children or to other children, although that is a criminal offence. This is a difficult situation. I understand that the Government are in a cleft stick on this, but I have sympathy with the amendment and commend anything that could be done to improve the situation that I have described, which is highly anomalous.

5.15 p.m.

Baroness Young

My Lords, I have added my name to this amendment. The speech of the noble Lord, Lord Alton, covered the ground so completely and satisfactorily that there is little else that I can add, except to commend the amendment to your Lordships' House and to say that I hope very much that the Government will accept it.

The subject of the amendment affects parents very deeply, particularly good parents who are trying to do the best for their children in a world which is beset with difficulties for them. As I understand the purpose of the Bill—it is one with which I entirely agree—it is to try to prevent young people falling into crime and to propose ways of dealing with them if they do. I cannot understand why there should be any question over trying to tighten the restrictions on such videos or giving those who object to them the right to appeal.

I have read many reports purporting to state that there is no link between seeing violence and actually practising it. I have never understood that argument. Why we believe that advertisements can affect people, but not video nasties, I cannot think. When I was at school, and in the schools in which I have been involved, teachers spent a lot of time trying to put before children those things which are good, right and true in the hope that they will have some effect. Even if they do not have any effect, teachers certainly will not put the reverse before children because they want them to grow up to be good citizens. I simply do not understand the argument that one influence has an effect but not the other. Screen violence has a profound effect. What is so worrying is that even children from good homes can nowadays see on television things that would have been simply unthinkable 25 or 30 years ago. They may have opportunities to see in their own homes the videos that were singled out by the noble Lord, Lord Alton. This is a serious situation and we should do everything that we can as a society to support good parents who are trying, in a difficult world, to do the best for their children.

I shall be interested to hear the reply of the noble Lord, Lord Williams. There may be some legal argument about why it is not possible to accept the amendment, but I hope that even if there are technical difficulties he will say that he will consider the matter further and produce a further drafting of the amendment. However, it seems to me that this amendment says the very minimum that is required. It has two parts. The first would give the BBFC more power to deal with videos which encourage antisocial behaviour by adding additional criteria which would need to be considered by the board. That seems a perfectly reasonable request and I cannot see why there should be any doubt about it. The second part of the amendment relates to an appeals system. It would allow designated organisations such as the police or children's charities, or an individual, to appeal to the Video Appeals Committee in the same way as producers can appeal under specified circumstances. What is wrong with that? The amendment seems a minimum requirement for what is needed in this world.

Although I do not subscribe to the fact that this might be regarded as a provision which runs against artists' freedom to express themselves—as far as I can see, anybody who wishes to see such films, which strike me as being singularly disagreeable, can do so at the cinema—I believe that there is a case for trying to prevent such films being shown in the home. I really believe that there is a distinction. I know that it is difficult to legislate on what goes on inside the home. It seems to me that the two minimum requirements are to give more power to the organisation which is responsible for the standards which are set for home videos and to provide a right of appeal. I should have thought that there could be no real disagreement on this. I very much hope that the Government will accept the amendment.

Lord Elton

My Lords, the noble Lord, Lord Alton of Liverpool, delivered a comprehensive and damaging description of the BBFC which will require study in order to get on board the full detail. Having heard the greater part of it—he was five minutes into his speech when I arrived—and looking at the amendment, I felt like someone who has taken his car for an MOT and hears it condemned as shambolic and unroadworthy and who is then given a short list of things to do to make it all right.

Whatever we do with the amendments, that institution should be, as it were, on probation for the next year or two to see whether it is running on the right fuel, whether it should be paid out of the proceeds of the film industry, for instance, and whether it is one of those institutions which those noble Lords who have taught in various places will find familiar as institutions which have developed their own culture and see the world from the position of that culture and do not see the world as the world sees it.

The amendment does not address that issue, except in one respect. The first leg gives to the board what my noble friend Lady Young has described as a new power, and which I strongly hope will be a new duty, to consider the likelihood of video works in respect of which certificates have been issued inciting their viewers to antisocial behaviour, crime or disorder.

All noble Lords have become accustomed to hearing from the Dispatch Box opposite a catalogue of negative research reports, all saying that the connection between violence in video and violence in behaviour cannot be proved. I feel rather like Dr. Johnson who, being tackled on a subject equally difficult of proof—whether men have free will—with his great intellect said: We know our will is free, and there's an end on't". It is obvious to all noble Lords that there is this connection. Even the last three tranches of research, to which the noble Lord referred, bear that out. The most recent was published in January of this year by Browne and Pennell at the instigation of the Home Office. While it is again inconclusive on the direct connection, it states that when parental violence was present offenders and non-offenders differed significantly, with offenders distinctly preferring violent films and characters. The implication is that a history of family violence and offending behaviour are necessary pre-conditions for developing a significant preference for violent film action and role models. The children to whom that referred had all committed—the control had not—violent crimes.

Statistically, there may not be the required connection, but all noble Lords must be satisfied, as indeed most have been, as my noble friend said, by the enormous sums paid out by industry to secure the changing of other people's behaviour by showing them things on television. It is perverse, is it not, to suggest that one can change it one direction by producing film material but not in the other?

I want also to draw to your Lordships' attention the merits of having some form of appeal system available outside the industry which this is meant to regulate—outside the people who create this material, but from among the people who have to receive it, whose children have it before them for up to 30 hours a week. They are the people who are affected. The appeal from within the industry protects bank balances. The appeal from outside the industry protects character. That is an essential piece of common sense. However long or short the future life of that board may be, I ask your Lordships to submit it to this new provision.

Lord Birkett

My Lords, although I am technically still a vice-president of the BBFC, I must emphasise that I speak for myself and out of my own experience. I do not entirely recognise myself or the BBFC from a great number of the things that the noble Lord, Lord Elton, said. I certainly do not recognise myself as having lived in an insulated bubble, as described by the Daily Mail, but then, if I were going to sit for a portrait, I would not go to the Daily Mail as the painter thereof.

The amendment has two halves. I cannot believe that they will work. The first half is unnecessary. I share the concerns of the noble Lord, Lord Alton, which I know are shared by many of your Lordships, about violence in the cinema, and especially in video, but I do not believe the amendment is necessary because the Criminal Justice and Public Order Act 1994 amended the Video Recordings Act with the following words, "The designated authority"—that is, the BBFC— shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with criminal behaviour; illegal drugs; violent behaviour or incidents; horrific behaviour or incidents; or human sexual activity". Further to that, "potential viewer" is defined in that amendment as: any person (including a child or young person) who is likely to view the video work in question". At the BBFC we are very much aware that the mere sticking of a certificate on a video box does not by any means guarantee that it will not be seen by people of the wrong age.

However, that amendment encompasses what the noble Lord has put down in his amendment. As I know that belt-and-braces legislation is not favoured in your Lordships' House, I suggest that his concerns may be shared by all but that the necessity for that half of the amendment does not exist.

More importantly, the second half of his amendment deals with the appeals procedure. I believe that the noble Lord, Lord Alton, is a little unfair in describing the BBFC as being funded by the industry as if it had a subvention or private source of finance from the industry which somehow put it in the pocket of the industry. The truth is that the BBFC is simply funded by a fee that it charges for classifying either films or videos. That fee is calculated precisely to make the BBFC break even. There is no likelihood of it making a profit and, if it did so, it would not have anything to do with it. It cannot make a profit. Equally, it cannot make a loss if it is to remain in existence. I believe that the funding is as equitable and simple a matter as can be and the BBFC is not the industry, unless one proceeds on the basis that the industry is the only people who need certificates.

That leads me to the question of why, up to now, only the film and video industry has had a right of appeal. The reason is fairly simple. The makers or distributors of the films and videos concerned have a very large financial stake in the matter. If a certificate is granted for an age group much higher than the film maker intended or wished, or in the most extreme cases the BBFC refuses to certificate a work, the financial consequences will be colossal. That is why there must be a mechanism whereby an appeal can be made on behalf of the industry or the maker of the video in question.

The noble Lord, Lord Alton, and other noble Lords may say that that is all very well but surely the commercial interests of the video maker are only half of it. What about the public good and the concern of the average viewer or member of the public? I believe that if a system of appeal is to be arranged it must be thought through a lot more carefully than this. If Mr. Andreas Whittam Smith is keen that some form of wider appeal should be possible, no doubt he will talk to the Home Office, and between them they will work something out. But at the moment the problem is very much as the noble Lord, Lord Alton, has described it.

Sometimes an enormous amount of protest and controversy arises before a video or film ever appears, based entirely on the views of people who have not seen the work in question. I recognise very well the words in the annual report read out by the noble Lord—because I wrote them. It is indeed a quandary. Often we are faced with storms of protest in relation to works we have not even seen, let alone certificated. I do not see how the public or those bodies designated by the Home Secretary according the proposal of the noble Lord, Lord Alton, will get to see the work. Once it has been certificated—at which point anybody can see it—the damage, if any there be, has been done. Even if the appeal overturned the decision of the BBFC, it would take a certain amount of time to withdraw the work in question. I predict that, if that happened, the saleability of the work would rocket in the days before its withdrawal, which would be counter-productive to everything intended by the noble Lord, Lord Alton.

At present, I cannot see how an appeal system of this kind can work. I was slightly dismayed by the phrase, "in prescribed circumstances", in the noble Lord's amendment. I did not know what it meant. Now that the noble Lord has explained his intention that certain organisations should be designated by the Home Secretary, the matter is a little more precise, but scarcely precise enough. At present, however well-intentioned the amendment, it will not wash. If the Home Office and the BBFC between them wish further progress to be made, I am sure that both are more than capable of making it.

5.30 p.m.

Viscount Tenby

My Lords, I rise to support the amendment in the name of my noble friend Lord Alton. Despite the observations made by my other noble friend, I do not have the audacity to clash with anything that he has said, given his vast knowledge. I confine myself to the relatively mild observation that, if producers are so worried about financial implications, perhaps they should not sail quite so close to the wind in their productions.

This amendment is modest in its ambition. It seeks merely to redress the balance which has for far too long favoured the entertainment industry. One cannot criticise the right of that industry to appeal against a ruling by the BBFC on, say, classification. However, in the name of justice, why should not those at the receiving end have a similar right via duly authorised bodies? The industry is quick and loud in protesting its innocence in relation to charges of moral corruption, despite regular evidence to the contrary which all too depressingly links violence in films, videos and games to real events. The most recent example, sadly, is the events in Arkansas in the past few days.

We were told by apologists for the entertainment industry—the point was tellingly made by the noble Baroness, Lady Young—that such programmes did not have any effect. Really? In that case the industry with which I was associated in one way or another for much of my working life, namely, advertising, is wasting its time and, perhaps more importantly, the time of its clients. We are told that this is what the public wants. Why, then, are family videos in great demand in video shops? We are told that producers are only mirroring life. That is remarkable. I wonder how many of us derive sexual gratification from car crashes. It may well be that Mr. Andreas Whittam Smith, for whom I have a high regard, is ready to deal with these concerns. I very much hope so, and I wish him well. In the meantime, we should take a stand now. To ignore the evil of gratuitous violence on our screens is to shirk our responsibilities to future generations and to society itself.

Baroness Thomas of Walliswood

My Lords, despite the fact that I am not entirely convinced by the drafting of the amendment—I am slightly more convinced than I was since the former vice-chairman of the BBFC spoke—it is absolutely ridiculous to suppose that the climate of violence which surrounds young children today does not affect them. It is like saying that an upbringing in the countryside surrounded by dogs and kind people produces exactly the same effect as an upbringing in a deprived urban home where violence is part of the domestic environment. It is beyond belief that the two can result in the same outcome.

The first 10 years of my life encompassed the Second World War, but I was not surrounded by the kind of images with which our television screens bombard us today; nor were my children, who are now in their middle and late thirties. The availability of such images, and the way in which they have overwhelmed the media, particularly via our television and computer screens, must exercise an effect on young people's perception of the world about them. That influence blurs the distinction that children should be able to make between fiction and reality. The noble Lord, Lord Alton, has already mentioned the Jonesboro incident to great effect. When we see young children committing acts that are not childlike, and apologise for what they have done, we realise that they do not understand at the start what they are doing. They do not perceive where their actions will take them. However, when eventually they realise what they have done, they do what children do when they have done something naughty at home: they apologise, as though somehow that gets rid of the problem.

A noble friend on these Benches asked whether anyone was going to stand up for freedom of speech. I read Milton's Areopagitica when I was a girl. A copy used to be handed down from president to president of my party. It is part of our instinct and is written into our constitution. The question arises as to the limit of that free speech, and how government can affect it.

I am not satisfied that the amendment is quite what is required. I want to hear the Minister acknowledge that there is grave concern among people from many different backgrounds about the problem that I have tried to describe. People are deeply disturbed. We do not need the Sun or any other organs of the press to tell us about it; we know in our hearts and from conversations with colleagues and friends that there is unease about this widespread phenomenon.

I want the Minister to acknowledge the importance of the issue, and I want to hear how the Government, in their hundreds of reviews, intend to respond to the unease about this real problem. If I do not hear that, and the noble Lord, Lord Alton, puts his amendment to a vote. I may very well support it.

Viscount Brentford

My Lords, I support the clear statements made by the noble Baroness. I support the amendment on the grounds that it is unethical for this Government, who stress their ethical approach, to provide no appeal on behalf of the general public. It does not enable those who believe that a classification is too low to appeal against it. It is unbalanced for there to be no right of appeal from the offended side. Surely that is totally unjust. That, is pre-eminently my reason for supporting the amendment.

If the Minister believes the amendment to be unworkable, as has already been said by the vice-president of the BBFC, I wish to hear how there can be a workable form of appeal. It is unjust for there to be no right of appeal by any organisation on behalf of the public or by those who believe that an age classification is too low.

The Lord Bishop of Hereford

My Lords, I rise to speak in favour of the amendment. I hope that much of what was said by the noble Lord, Lord Alton, and others has convinced your Lordships that the amendment is desirable. When the Bill was published there was much in it to be welcomed. When I spoke at Second Reading, I congratulated the Government on many aspects of it. However, I also pointed out that much of the content, admirable as it is, is concerned with the consequences of crime and better ways of coping with existing crime and disorder.

Crime and disorder are symptoms of a sick society. Most of what is in the Bill relates to ambulance work. I believe that if we vote for the amendment we shall be doing something modest but nevertheless worthwhile towards the provision of preventive medicine.

Lord Milverton

My Lords, I support the amendment, as I have told the noble Lord, Lord Alton. It is one way of showing that many of us are not afraid to say that the human body is to be respected. One is tired of saying, "We must not be abused". Such an amendment should be a light to people who say, "No, it cannot be helped", and such nonsense. We can show them that some of us believe that there is no reason for the human body to be abused and not given work and dignity.

That is one aspect of the amendment and it is why I am ready to support it. I hope that the Government will support it too, but, if not, that they will look at the matter, stating that they have respect for the human body. I believe that anything that destroys, destroys life. If work and respect are not given to a human body, we are destroying life—the mind, the soul and the body. That is what is happening in the world today.

Let us stand up with courage against those who say, "We cannot do anything about it. We have to accept it". We do not have to accept it. We have life: mind, soul and body. Anything which harms, destroys or abuses that life is wrong. Videos may not directly influence us, but in time they deaden us because we see so much of them. We must have the spirit of light within us to say, "No, we are not going to be deadened by all the rotten violence which we see before us". We need a strong character to turn it off.

Baroness Wharton

My Lords, I have great sympathy with all noble Lords who have spoken. We have discussed the matter many times in this House. However, I have reservations about the amendment. It is open to every member of the public to lay a complaint should there be an appeals process, but I should like to know more of the detail. Who will comprise the appeals committee? If there is a request to the BBFC to re-classify videos, how will that affect films? Will there be one classification for videos and another for films?

Once a complaint has been lodged and is being considered, will the videos be taken off the market? What will happen to the videos in homes? How will the procedure be enforced, since there are hundreds of shops throughout the country selling videos? It will be difficult to enforce the measure. Will the BBFC be asked to reclassify a video?

I presume that the Home Secretary will select members of the committee. Therefore, are we not carrying out the work of the BBFC and laying a contentious issue at the door of the Home Office for it to make the final decision as to whether a video receives classification, is re-classified or is taken off the market?

While I sympathise with the amendment, I wish to know more of the detail, control and make-up of the committee. I shall reserve judgment until I have heard the Minister's reply.

Lord Henley

My Lords, I, too, have a degree of sympathy with the intentions behind the amendment, in particular subsection (2), which suggests a wider system of appeal. At present. the appeal system applies only to the makers of a film or video and not to the general public.

This is the third time that the noble Lord, Lord Alton, has tabled this or a similar amendment: in Committee, on Report and again today. However, because of the lateness of the hour on earlier occasions, we were unfortunately unable to debate those matters and to debate them in the Committee atmosphere which allows one to pose the sort of questions which the noble Baroness, Lady Wharton, has asked. In Committee one can receive answers and question the Government and the mover of the amendment further in relation to the issues arising. To debate such a matter for the first time, ab initio, and to have to wait on the government response is a fairly unsatisfactory position for the House.

The matters which are being discussed go extremely wide and it would not be right for either the Government or myself to advise those who sit behind us on how to vote. It is a matter which should be left to conscience. But I shall certainly wish to hear the Minister's response and I shall listen carefully to it. If I were the noble Lord, Lord Alton, I should be extremely reluctant to press the amendment to a vote at this stage. The Bill has yet to be discussed in another place. Moreover, we have not had an adequate opportunity to discuss it in the Committee atmosphere to which I referred earlier.

Having said that, I shall be very interested to hear what the noble Lord, Lord Williams, has to say about the Secretary of State's attitude to such an amendment and what he believes should be done to ensure that the public have an opportunity to make heard their views on videos of the sort that we are discussing and on occasions, if it is appropriate, to be able to appeal against the designation of a particular video work.

Lord Williams of Mostyn

My Lords, I am most grateful to everyone who has spoken on this matter because plainly there are serious issues to be addressed.

If one looks at the phraseology of the amendment, the first part is not needed for the reason that has already been identified. It is expressed in an extremely broad way that the board must classify, having special regard to the likelihood of video works … inciting their viewers to anti-social behaviour, crime or disorder". Antisocial behaviour is very widely put there and there is no attempt subsequently to define it.

Lord Simon of Glaisdale

My Lords, is that not already in the Bill?

Lord Williams of Mostyn

My Lords, yes, but in an entirely different context, as I was about to indicate. If that definition were to be the definition attached here, I do not believe that that would satisfy the noble Lord, Lord Alton, in the slightest way. Therefore, that is not merely a technical or tendentious point. However, it may be helpful were I to reiterate what is the present state of the law before I deal with specific invitations in relation to the government stance.

Under the 1994 Criminal Justice and Public Order Act, the board has a duty—which is in the Act, significantly, because of the efforts of the noble Lord when he was a Member of another place—to have special regard to any harm which may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with criminal behaviour, illegal drugs, violent behaviour or incidents, horrific behaviour or incidents or human sexual activity. I take the noble Lord's point about his stance on principle and, indeed, the stance adopted by the right reverend Prelate. It goes further, and I am glad to be able to repeat this. "Potential viewer" means any person, including a child or young person, who is likely to view a video work if a classification certificate were issued.

Therefore, I suggest to your Lordships that the first part of the amendment is of no value—I do not say that disagreeably to the noble Lord—because provision is already made by the criminal law to deal with that aspect. I recognise that that is not the fundamental question at issue because it seems to me that your Lordships' attention has been focused more on what one should do about the appeal procedure. Therefore, I shall spend a few moments on that.

I am not sure what lessons one can draw from Jonesboro. I do not know the facts except that I know that very small children, hardly more than infants or babies to most of us, had a diet of the use of guns at a disgracefully irresponsibly early age. What their exposure was to film, I do not know. I do not know what was their exposure to videos. But I take the point made by the noble Baroness, Lady Young, that one has a diet of material on television which many of us believe is unsuitable for unsupervised children. Alas, that is a fact.

I agree entirely with the noble Lord, Lord Alton, that we must ensure that the interests of the child are heard and that there is the opportunity for better protection. I do not believe that this proposed appeal system is capable of working, first, because there is no reference here to designated organisations. The point was made, rightly I believe, that at present the amendment allows an appeal at large. The appeal at large by any member of the public would be on the basis that the classification should not be given, or should be amended on a preliminary basis, on the basis that it was likely to, incite its viewers to anti-social behaviour". That is extraordinarily wide. I do not know who did whisper from the Liberal Democrat Benches, "What about free speech?". There may be one or two usual suspects, but it is an extraordinarily wide provision and I accept the whispered encouragement.

To many of us, not least myself, antisocial behaviour includes smoking. I find it grotesquely antisocial, as I constantly remind my wife when she is standing outside the kitchen door having a furtive cigarette. (I must not take Hansard home with me tomorrow.) Therefore, one must see how we can achieve something which is workable.

The noble Lord has been kind enough to say that we have had a lot of discussion and correspondence. Indeed, I had a lengthy talk with him and his colleagues and I wrote to him on 30th March, yesterday. It may be helpful if I indicate what is our stance, because I have now received that request from a number of your Lordships.

I said to the noble Lord yesterday: The first point I would like to establish is that Mr. Whittam Smith is not in principle opposed to broadening the appeals process, as I said at our meeting", that is, the meeting I had with the noble Lord, Lord Alton. The letter goes on: Indeed, as his comments in the Daily Telegraph show, he believes that there are substantial practical problems with the proposals you outlined in your amendment". I was asked where the Government stand. I do not believe that my right honourable friend the Home Secretary could have made his stance plainer. The whole underpinning theme of the Crime and Disorder Bill is the protection of small children. He has been quite unambiguous in his expression of concerns and his determination to achieve that protection.

He appointed Andreas Whittam Smith recently. I do not believe that there was a single noble Lord in this House who spoke in the debate who did not welcome his appointment. He is just now in place. He has made it perfectly plain that he regards the concerns expressed this evening with great seriousness.

Mr. Whittam Smith has made a suggestion which I hope commends itself to those of your Lordships who put the inquiry. He is certainly not of a closed mind as regards an appeals procedure. He is now undertaking a review as the first aspect of his stewardship. He is in an extremely difficult position because it is one of the few activities whereby whatever he does, he knows he will be assailed by someone. In a sense, whatever is done will only be as little wrong as you can establish. He has said that he is content to consider the setting up—and I hope this will commend itself to your Lordships—of an advisory panel for the interests of children.

I believe that that would meet the concerns expressed by the NSPCC and those expressed by the noble Lord, Lord Alton, because we would then have children's interests on an informed basis feeding into the classification procedure at an early stage. I would commend that to your Lordships as being, first, open-minded on the part of Andreas Whittam Smith; and, secondly, being a proposal of practical utility. I cannot see that the amendment would work. Indeed, I cannot see that the appeals mechanism is workable in the form suggested. However, I do not wish to be negative and simply say that the wording is wrong. I return to the proposition that if one has an input, any voice—

6 p.m.

Lord Hamilton of Dalzell

My Lords, I am sorry to interrupt the Minister, but can he give us some indication as to who would appoint the members of such an advisory panel?

Lord Williams of Mostyn

My Lords, it seems to me that it ought to be Andreas Whittam Smith, who made the suggestion. However, there is no doubt in my mind, although I have not specifically consulted him in this respect, but that he would welcome suggestions from all interested parties, including the Children's Society and, not least, those of your Lordships who had a long-term interest in such matters. I believe that it would be a useful step. It would be a source of expertise at the time when it is needed; that is to say, right at the very beginning.

I recognise—indeed, we all have to—that this is only part of a problem. The video classification does not deal with violent comics or with television in the home. From the little television that I watch in my own home, I am rather surprised on some occasions to see that it is readily available to unsupervised children as young as seven or eight. Whether or not such programmes are screened before or after the nine o'clock watershed, the situation strikes me as being rather artificial. However, I should point out that that is my own personal view rather than a governmental one. It seems to me that the watershed may have its deficiencies. I stress again that that is my view and not necessarily that of the Government. Indeed, the two are always coincident, except on certain occasions.

I hope that I have dealt with your Lordships' concerns. I see that the noble Lord wishes to intervene.

Lord Elton

My Lords, I am much obliged. The Minister cannot give a commitment; indeed, it is not his to give. However, will he bear in mind the great importance of publishing the advice of such an advisory panel on children's interests? If it is merely a closed machine, one will not know what influence it is having and that in itself will diminish its influence. However, if its advice is known, it would be reassuring to the public.

Lord Dholakia

My Lords, can the Minister indicate the time-scale that he has in mind within which such an advisory committee would be established?

Lord Williams of Mostyn

My Lords, the noble Lord, Lord Elton, is quite right; I cannot give the commitment. All I can say is that the Government believe in openness. I further believe that, if those who give advice know that it will be public, that would be an important internal structure of discipline because it would make the quality of the advice better.

As regards the request of the noble Lord, Lord Dholakia, I am afraid that I cannot give him that information. I have had discussions with the noble Lord, Lord Alton, quite recently; indeed, as recently as my letter of yesterday. I do not know what the noble Lord's definitive view will be. However, I believe that, given a fair wind and determination, there ought to be no real difficulty. Certainly, Andreas Whittam Smith is determined. Therefore, I do not see why such a panel should not be adopted within a few months; and, indeed, one of practical utility.

Baroness Blatch

My Lords, I am most grateful to the Minister for giving way. Perhaps he could clarify one point as regards the Government's justification for the following. On the one hand, if the BBFC did its work properly and honoured its obligations to take into consideration the effect on children and all the requirements that are already an obligation for it, even taking advice from the advisory committee that could be set up under the promise of Andreas Whittam Smith, and found in favour of not giving the video a licence, there is a right of appeal by the industry. Alternatively, if the BBFC, still taking all those things into account and still being advised by an advisory committee—that is, if there were to be one—took the view that a film should be licensed which, in turn, gave rise to great concern and disquiet among parents and those interested and worried about children watching such a video, there is no right of appeal. I do not understand how the Government can justify that state of affairs.

Lord Williams of Mostyn

My Lords, as is notoriously well known, there is no right of appeal at present by anyone other than the producer or the distributor. However, that is the scheme of the legislation which we inherited. We are looking into the situation at the moment. I have said that Andreas Whittam Smith has been put in place to do a specific job. His appointment was roundly welcomed by everyone who spoke in our debate on the subject. He has said that he is not in principle opposed to broadening the appeals process. When he reaches his conclusion, the Government will obviously give it proper consideration. However, I cannot commit the Government before I know the nature of his conclusion.

For the reasons that I set out fully in my letter to the noble Lord, Lord Alton, which he was courteous enough to refer to, Andreas Whittam Smith does not believe that the amendments will work; neither do the Government. On the basis of the explanations that I have given, not least the further invitation to consider the input of a children's advisory group, I hope that the noble Lord will feel able to withdraw the amendment. As I said, the proposal is not workable.

Lord Alton of Liverpool

My Lords, I have a sense of history almost repeating itself because precisely the same arguments which the Minister has put so eloquently today were put forward in 1984 when I moved amendments in the other place to provide for the very points to which the noble Lord, Lord Birkett, referred during his earlier contribution. It was the amendment that I moved for the Video Recordings Act 1984 (which was ultimately incorporated by the Government) which provided for special regard to be given to harm through behaviour. The noble Lord with whom I jousted on the subject before will be well aware that that was introduced into law for that very reason. The noble Lord is also no doubt aware that, following the enactment of that legislation, where people have tried to challenge decisions of the BBFC it has been a virtual impossibility.

Perhaps I may give the House one example in that respect. A young single black woman, a single parent, who was living in Brentford decided that it was against the interests of her child for the film "Natural Born Killers" to be made available on video for home viewing. She sought to take her case to the courts, but the entire wealth of the industry would have been stacked against her. She was advised ultimately that it would be impossible for her to take her case through a court of law. Therefore, the law provided no justice for her at all.

In answer to the noble Baroness, Lady Wharton, I should point out that the situation will not arise where every member of the public will want to exercise his or her right in the way that the young single parent to whom I referred attempted to do. We are seeking to provide that prescribed organisations—that is, those designated by the Home Secretary; indeed. I have suggested that they might include children's organisations such as the NSPCC—should simply have the same right of appeal that already exists for the industry. The noble Viscount, Lord Brentford, pointed that out and the noble Baroness, Lady Blatch, incisively made that point in her recent intervention. Your Lordships would be ill-advised to accept as a substitute for that an advisory panel for the interests of children. Indeed, such panels already exist; for example, organisations like the NSPCC do that job admirably. As I said earlier, the society very much welcomes the amendment before the House today.

The noble Lord, Lord Henley, said that it would have been better had these debates taken place on Report. Of course I agree with him. However, he will recall that on Report a vote had been taken only moments earlier and the time was fast approaching midnight. Indeed, if it had not been for my own vote being cast with the Government on that occasion, I do not believe that the 30 votes which comprise a quorum necessary to keep the House sitting would have been managed. Therefore, in the circumstances, it was not practicable to proceed with the amendment on that occasion.

I withdrew the amendment in Committee precisely so that the Government could come forward with workable proposals if they did not feel that my amendment was workable. Indeed, I went to see the noble Lord and we had a productive meeting. I am grateful to him for the way in which he has dealt with me personally and for the courteous way in which he has dealt with the points with which he has been acquainted. However, the Government have not come forward with an alternative. Simply to reply on the good offices of Mr. Andreas Whittam Smith, as much as I welcomed his appointment in February when we had a short debate on the matter in this House, is really not good enough.

For instance, last week Mr. Andreas Whittam Smith personally supported the decision of the board to release "Crash", "Lolita" and "Kiss". He said of "Crash" that the subject matter was too obscure to generate antisocial behaviour. Many of us would wish to disagree with that decision, but what good is it to be able to approach an advisory committee on children's affairs? We need some sort of appeals mechanism so that we, as well as the industry, can say that a decision will not stand up and that the materials in question ought not to be available for home viewing. At the moment we have a lopsided system. As my noble friend Lord Tenby said, the advertising industry does not believe that videos and TV have no effect on those who watch them. The industry would not have spent £4,000 million last year trying to sell wares through TV advertisements if it thought that what we saw had no effect whatsoever upon us.

I do not pretend that everyone who views this kind of material behaves in an antisocial or violent manner. However, a child who is living on the edge may be tipped over the edge. If a child who is brought up in a home where there is no love, support or parental help is exposed solely to a diet of gratuitous violence we should not be surprised if that child subsequently behaves in that manner. The noble Baroness, Lady Thomas of Walliswood, made that point. There have been many telling interventions during this debate. I am grateful to noble Lords for debating these points.

My experience in 1994 was that, if we do not take the Government to the wire, they will continue to rely on advisory committees and nothing will be done to regulate an industry that is allowed to regulate itself. Vast amounts of money are involved in that industry, as the noble Lord, Lord Puttnam, said on a previous occasion. If you think that a child is in danger of being run over by a railway engine, you do not wait until that happens before you put up a fence to protect that child. That is all that I ask your Lordships to do today. If the Government feel that the amendment is in any way unworkable, there will be plenty of opportunity in another place to put that right. I wish to test the opinion of the House.

6.11 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 81; Not-Contents, 122.

Division No. 2
Ackner, L. Leigh, L.
Aldington, L. Linklater of Butterstone, B.
Alton of Liverpool, L. [Teller.] Longford, E.
Ashbourne, L. Lucas of Chilworth, L.
Bath and Wells, Bp. Masham of Ilton, B.
Beaumont of Whitley, L. Massereene and Ferrard, V.
Beloff, L. Meston, L.
Blatch, B. Milverton, L.
Braine of Wheatley, L. Minto, E.
Brentford, V. Molyneaux of Killead, L.
Brookes, L. Monckton of Brenchley, V.
Caithness, E. Monro of Langholm, L.
Calverley, L. Nelson, E.
Carlisle, Bp. Newall, L.
Carnock, L. O'Cathain, B.
Chalker of Wallasey, B. Orr-Ewing, L.
Coleraine, L. Park of Monmouth, B.
Cranbrook, E. Pearson of Rannoch, L.
Cuckney, L. Perth, E.
Dean of Harptree, L. Peyton of Yeovil, L.
Dholakia, L. Powis, E.
Dixon-Smith, L. Prior, L.
Elton, L. Renton, L.
Gisborough, L. Renton of Mount Harry, L.
Rochester, L.
Greenway, L. Saltoun of Abernethy, Ly.
Halsbury, E. Sandwich, E.
Hamilton of Dalzell, L. Seccombe, B.
Harmar-Nicholls, L. Simon of Glaisdale, L.
Hayhoe, L. Stewartby, L.
Hemphill, L. Stoddart of Swindon, L.
Hereford, Bp. Swansea, L.
Holderness, L. Swinfen, L.
Hooper, B. Taverne, L.
Hooson, L. Tenby, V.
Howell of Guildford, L. Thomas of Walliswood, B.
Hylton, L. Trefgarne, L.
Hylton-Foster, B. Waddington, L.
Jeffreys, L. Weatherill, L.
Kenilworth, L. Wynford, L.
Leicester, Bp. Young, B. [Teller.]
Acton, L. Chandos, V.
Addington, L. Clancarty, E.
Allenby of Megiddo, V. Cledwyn of Penrhos, L.
Alport, L. Clinton-Davis, L.
Archer of Sandwell, L. Cocks of Hartcliffe, L.
Ashley of Stoke, L. David, B.
Barnett, L. Davies of Oldham, L.
Berkeley, L. Dean of Thornton-le-Fylde, B
Birdwood, L. Diamond, L.
Birkett, L. Dixon, L.
Blackstone, B. Dormand of Easington, L.
Bledisloe, V. Evans of Parkside, L.
Borrie, L. Falconer of Thoroton, L.
Brooks of Tremorfa, L. Falkland, V.
Burlison, L. Farrington of Ribbleton, B.
Carew, L. Fitt, L.
Carlisle, E. Gallacher, L.
Carmichael of Kelvingrove, L. Geraint, L.
Carter, L. [Teller.] Gilbert, L.
Castle of Blackburn, B. Gladwin of Clee, L.
Glenamara, L. Newby, L.
Gordon of Strathblane, L. Nicol, B.
Gould of Potternewton, B. Onslow, E.
Graham of Edmonton, L. Orme, L.
Gregson, L. Paul, L.
Grenfell, L. Peston, L.
Hardie, L. Pitkeathley, B.
Hayman, B. Plant of Highfield, L.
Henderson of Brompton, L. Ponsonby of Shulbrede, L.
Hilton of Eggardon, B. Prys-Davies, L.
Hollis of Heigham, B. Ramsay of Cartvale, B.
Howell, L. Randall of St. Budeaux, L.
Howie of Troon, L. Rea, L.
Hoyle, L. Rendell of Babergh, B.
Hughes of Woodside, L. Renwick of Clifton, L.
Hunt of Kings Heath, L. Richard, L. [Lord Privy Seal.]
Irvine of Lairg, L. [Lord Chancellor.] Rogers of Riverside, L.
Russell, E.
Islwyn, L. Sefton of Garston, L.
Janner of Braunstone, L. Sewel, L.
Jay of Paddington, B. Shepherd, L.
Jenkins of Putney, L. Shore of Stepney, L.
Kennedy of The Shaws, B. Simon, V.
Kilbracken, L. Simon of Highbury, L.
Lester of Herne Hill, L. Smith of Gilmorehill, B.
Lockwood, B. Symons of Vernham Dean, B.
Lofthouse of Pontefract, L. Taylor of Blackburn, L.
Lovell-Davis, L. Taylor of Gryfe, L.
McIntosh of Haringey, L. [Teller.] Thomas of Gresford, L.
Thomas of Macclesfield, L.
McNair, L. Varley, L.
McNally, L. Walker of Doncaster, L.
Maddock, B. Wallace of Coslany, L.
Mallalieu, B. Walpole, L.
Mar and Kellie, E. Watson of Invergowrie, L.
Mason of Barnsley, L. Wedderburn of Charlton, L.
Milner of Leeds, L. Wharton, B.
Molloy, L. Whitty, L.
Monkswell, L. Williams of Elvel, L.
Monson, L. Williams of Mostyn, L.
Montague of Oxford, L. Young of Dartington, L.
Murray of Epping Forest, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 20 [Procedural provisions with respect to orders]:

6.20 p.m.

The Lord Advocate (Lord Hardie)

moved Amendment No. 7: Page 17, line 21, after ("shall") and insert (", without prejudice to the determination of an application under subsection (7)(b) above made after the lodging of the appeal."). The noble and learned Lord said: My Lords, the purpose and effect of this government amendment is to make it clear that a sheriff may determine an application to vary or revoke an antisocial behaviour or sex offender order even where an appeal against the original order has been lodged.

At Report stage we discussed in some detail the amendments laid by the noble Earl, Lord Mar and Kellie, and the noble and learned Lord, Lord Mackay of Drumadoon, which would have allowed the court to suspend antisocial behaviour and sex offender orders pending the disposal of an appeal. I indicated at that time that there was no need for such an amendment because the subject of an order may at any time apply to the sheriff on a summary application to have an order varied or revoked.

The noble and learned Lord, Lord Mackay of Drumadoon, was kind enough to agree that there was no need for his amendment if that was the case, and I undertook to consider the matter further to ensure that there could be no doubt about this. Having looked at the matter in detail, I agree that it would be helpful to make it explicit on the face of the Bill that the provision in Clause 20(10) that orders continue to have effect pending the disposal of the appeal is without prejudice to the provision in Clause 20(7)(b) that orders may at any time be varied or revoked on a summary application by the applicant or the person against whom the order is made. This amendment does that. I beg to move.

The Earl of Mar and Kellie

My Lords, I am grateful to the noble and learned Lord. I laid the amendment; I am now content with what he has proposed.

Lord Henley

My Lords, in the absence of my noble and learned friend Lord Mackay of Drumadoon, and confessing to a total absence of any knowledge of Scots law, I gained the impression that this was responding to some of the concerns of my noble and learned friend. That being the case, on behalf of my noble and learned friend I thank the noble and learned Lord the Lord Advocate for the amendment and have no objections to it.

On Question, amendment agreed to.

The Earl of Mar and Kellie

moved Amendment No. 8: After Clause 20, insert the following new clause— SUPERVISED ATTENDANCE ORDERS FOR THOSE CONVICTED OUTWITH SCOTLAND (" .—(1) A court shall make a supervised attendance order under section 235 of the Criminal Procedure (Scotland) Act 1995 in the circumstances specified in subsection (2) below. (2) The circumstances referred to in subsection (1) above are that the offender—

  1. (a) is of over 18 years of age; and
  2. (b) has been convicted of an offence in a jurisdiction outwith Scotland in respect of which the penalty was a period of imprisonment.").
The noble Earl said: My Lords, the purpose of Amendment No. 8 is one that I have drawn to your Lordships' attention on previous occasions, particularly during the passage of the Crime and Punishment (Scotland) Bill last year.

There is a real need for powers of supervision over offenders convicted and imprisoned overseas and who are deported back to Scotland. This situation has been highlighted by the case of Mr. Archibald McCafferty who was deported to Scotland from Australia at the end of a life sentence for murder. There is another similar case about to evolve in Australia. As international mobility and freedom of passage becomes more prevalent, so will the number of Scots being gaoled abroad become equally so.

It has been said to me that there may be injustice and technical difficulty in matching offences and sentences from other jurisdictions. The Secretary of State will be able to identify the circumstances in which an ex-prisoner would qualify for and benefit from supervision. Supervision may have some benefits by way of a commitment by the local authority social work department to assist that person in his resettlement in Scotland. Mr. McCafferty seems not to have received any help from the local authority but, curiously, was assisted by an ex-prisoner.

The problem of Scots being imprisoned abroad and deported back to Scotland on liberation will grow. It would be sensible to take this action now rather than waiting until such an offender unrepentantly reoffends in Scotland, thereby causing a public outcry. It would also send out a useful message to all Scots that their actions abroad will not be without consequence on their return to Scotland. I beg to move.

Lord Hardie

My Lords, I regret that I cannot accept this amendment because, apart from anything else, it is technically flawed. It does not make clear the circumstances in which a supervised attendance order might be made or the category of persons that it is intended to affect. As it stands, it is simply a blanket power for the court to make a supervised attendance order against anyone convicted of an offence outwith Scotland in whatever circumstances.

Your Lordships will be aware that supervised attendance orders are restricted by statute to fine default. In these circumstances, I would invite the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie

My Lords, I will withdraw the amendment because I admit that the wrong wording was used and that a supervised attendance order is too junior a level of supervision. It is necessary that the courts or the Secretary of State, and subsequently the Scottish Parliament, should have the power to apply for post-release supervision of someone who has been convicted and imprisoned for serious offences abroad and who is then deported back to Scotland.

I had hoped that the noble and learned Lord the Lord Advocate would take it away and think again about it but I did not get that message. I do not promise that my honourable friends in another place will not bring it back. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 9: After Clause 25, insert the following new clause—


(".—(1) A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging property belonging to another) which is racially aggravated for the purposes of this section. (2) A person guilty of an offence under this section shall be liable—

  1. (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
  2. (b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or to a tine, or to both.
(3) For the purposes of this section, section 24(1)(a) above shall have effect as if the person to whom the property belongs or is treated as belonging for the purposes of that Act were the victim of the offence.").

The noble and learned Lord said: My Lords, the Government have listened carefully to the views expressed by noble Lords during the progress of the Bill and to the views of other interested parties regarding the need for a specific racially-aggravated criminal damage offence. We understand the strength of feeling that this issue has provoked and we recognise that it is important that this Bill should send a strong message that such behaviour is unacceptable. My noble friend Lord Williams of Mostyn indicated to the noble Lord, Lord Dholakia, at Report that we would accept in principle the creation of a specific offence and that we would look very carefully at his amendment and attempt to overcome the technical problems that both he and the Government had identified. This amendment will, I believe, address the concerns of the noble Lords who have spoken in the previous debates.

This new clause will create a new offence of racially aggravated criminal damage based on the existing offence contained in Section 1(1) of the Criminal Damage Act 1971. The new offence will carry a maximum sentence of 14 years' imprisonment.

The maximum has been set at 14 years not 12 years for two reasons. First, as the current offence carries a 10-year maximum, the next scale in the normal sentencing ladder is 14 years. We do not normally create offences which carry a 12-year maximum. Secondly, as the noble Viscount, Lord Colville, indicated during Report, if the case is a serious one and the offender is under 18 then unless the maximum sentence is 14 years the offender cannot be dealt with under Section 53 of the Children and Young Persons Act 1963.

The other potential problem with this offence was reconciling the victim of the offence with the victim of the racial hostility. To take the example cited in earlier debates, in cases where racial hostility was demonstrated to tenants of a house which was damaged, there had been doubts about whether the tenants could always be said to be victims of the damage itself.

The definition of those to whom damaged property belongs for the purposes of the 1971 Act is, however, wide enough to cover all those who have custody, control, a proprietary interest, or a charge over property that is destroyed or damaged. This is the definition that is adopted in subsection (3) of the new clause.

As I have said, we have listened to the views expressed by noble Lords. I believe that this clause will address the concerns of all those who have called for a specific offence of racially aggravated criminal damage. I beg to move.

6.30 p.m.

Lord McNally

My Lords, the Minister will be aware that my noble friend Lord Dholakia was concerned at earlier stages about this issue. At that point our criticism was that, although technically we could understand that various offences were already covered by existing law, if one were at the receiving end of such an offence—if one were from an ethnic minority and suffered this kind of criminal damage—it would not look or feel, and indeed was not, like run of the mill criminal damage.

I believe that I speak for all on these Benches in welcoming the Government's flexibility on the matter, and the way in which they have approached it. That is welcome to us. Perhaps more importantly, it will be welcomed by ethnic minorities who have undoubtedly been victims of racially motivated criminal damage.

Lord Henley

My Lords, we also raised this concern both in Committee and on Report. I am grateful to the noble and learned Lord for coming forward with the new clause. We give it our wholehearted support.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 10: After Clause 29, insert the following new clause—


(" . In section 35 (effect of accused's silence at trial) of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), the following provisions shall cease to have effect, namely—

  1. (a) in subsection (1), the words "who has attained the age of fourteen years"; and
  2. (b) subsection (6).").

The noble Lord said: My Lords, with Amendment No. 10 are grouped Amendments Nos. 31, 100, 104 and 105. It may be convenient if in moving Amendment No. 10 I speak to those amendments.

Amendment No. 10 deals with the inferences which a court or jury may draw if a defendant fails to give evidence at his trial, or refuses without good reason to answer any question. On 19th March on Report, I indicated to your Lordships that I would bring forward such an amendment, and the related amendments are consequential.

The purpose of the new clause is to amend Section 35 of the Criminal Justice and Public Order Act 1994 which deals with inferences to be drawn. They remain to be drawn at the moment when the defendant is under the age of 14, when the guilt of the accused is not an issue, or when the defendant's physical or mental condition makes it undesirable that he should give evidence. We wish to remove the age restriction from Section 35, but the remaining restrictions in Section 35—this may be of importance—will not be affected.

There are two principal reasons. The first is consistency with the intention to abolish the presumption of doli incapax, as indicated in Clause 29 of the Bill. Therefore a court or jury will be able to draw the inferences I mentioned. In most cases it is reasonable to conclude that a child of this age, if the circumstances are clearly explained to him or her, will be able to understand the consequences of refusing to answer a question, or of refusing to speak up on his own behalf. It is not unreasonable to expect someone who has an innocent explanation to provide that explanation. When it seems to the court or the jury that that is not the case, the child will be protected by the provision in Section 35 which allows the court not to draw inferences if it considers that the child's mental or physical state makes this undesirable. We would expect the magistrates, or in rarer cases a Crown Court jury properly directed by the Crown Court judge, to bear these matters carefully in account.

The second reason for introducing the amendment is to achieve consistency, not with the new legislation to which I referred a moment ago, but with existing legislation. There are no restrictions on drawing inferences from the failure of 10 to 13 year-olds to mention facts when charged or questioned. That is Section 34 of the 1994 Act. All children above the age of criminal responsibility are already treated equally under Section 36 of that Act which is the failure or refusal to account for objects, substances or marks; and Section 37, the related failure or refusal to account for presence at a particular place. What we are doing is to bring the position of those young people in court into line with existing related provisions.

We look to treat all juveniles in the same way except where individual circumstances clearly merit different treatment. I beg to move.

Lord Henley

My Lords, I thank the noble Lord for his introduction of the new clause as set out in Amendment No. 10. We have no objection to that. We welcome the change of heart that it seems to indicate on the part of the Government. I seem to remember that in Opposition they firmly opposed the removal of the so-called right to silence.

I intervene on this occasion to speak not to Amendment No. 10 but to Amendment No. 105 in the group. I have a number of concerns raised by that amendment. The noble Lord presumably grouped Amendment No. 10 with Amendment No. 105 because it would not be possible to have the new clause unless one amended the Long Title of the Bill, as does Amendment No. 105. As well as adding in the Long Title, and to make provision as to the effect of a child's failure to give evidence at his trial". Amendment No. 105 also includes, to abolish the death penalty for treason and piracy". That seems to be an admission that the amendments originally moved at Report stage by the noble and learned Lord, Lord Archer of Sandwell, were not within the scope of the Bill. I shall be grateful for confirmation as to whether or not that is the case.

That brings me to another point. It is a point which arose from remarks made by the noble Lord, Lord Hylton, when he spoke to but did not move Amendment No. 3 earlier. He seemed to imply when speaking to that amendment that he had received advice from the Lord Privy Seal that it was not appropriate to move Amendment No. 3 and one or two others. I presume from that the Lord Privy Seal was advising him that those amendments were not within the scope of the Bill and that therefore it would not be right for him to move them at Third Reading.

If that is so, it raises some concerns. By what right does the Lord Privy Seal offer advice on these matters? If an amendment has been tabled, and accepted by the Public Bill Office, surely it is a matter for the House, and the House alone, to decide whether an amendment is within the scope of the Bill. I appreciate that this argument goes somewhat wider than Amendment No. 10 and the amendments grouped with it. However, I should be grateful for a response. We shall be able to come back to Amendment No. 3 when the noble Lord speaks to his Amendment No. 16, on which he wished to test the opinion of the House. It would be useful if we could hear exactly what advice the Lord Privy Seal was offering on this occasion, and by what right he offered such advice. For example, will he offer similar advice when we come to the amendment in the name of my noble friend Lord Renton? Alternatively, will that now be within the scope of the Bill because it has been dealt with by Amendment No. 105 which includes the words, to abolish the death penalty for treason and piracy"?

Baroness Mallalieu

My Lords, I wonder whether my noble friend could give me some reassurance in relation to Amendment No. 10. This amendment was introduced for the first time at Third Reading, although it is right to say that the noble Lord, Lord Williams of Mostyn, did trail it as a "forthcoming attraction" at the Committee stage. However, I am concerned to know whether there has been any consultation with the Bar Council, the Law Society or the Criminal Bar Association.

When a defendant is aged between 10 and 14, in reality the decision on whether to give evidence is not taken by the child. It is the decision of the advocate. The child does what he is advised to do. Indeed he is usually quite incapable, no matter how carefully it is explained, of understanding the meaning of "adverse inferences" or what the consequences of the choices open to him are. There may be very good reasons that fall short of those given by the noble Lord for advising the child not to give evidence. He may be inarticulate and not able to give a proper account of himself. He may be frankly terrified and likely to be an appalling witness. It may be that the effects of giving evidence and being cross-examined are, in the view of his family although not perhaps of a psychologist, personally likely to be damaging.

In practice I suspect that there will be few cases where a magistrate or a judge would think it right to direct a jury or indeed to direct themselves that adverse inferences should be drawn from a child's failure to give evidence where counsel has so advised. However, I wonder whether the noble Lord could tell me where the pressure for this change comes from. I am not aware of any difficulties. Ten year-olds were expressly and for good reasons excluded from this part of the 1994 Act. Why is this change now considered to be necessary?

Lord Renton

My Lords, I am grateful to my noble friend Lord Henley for mentioning that if my Amendment No. 30 is to be accepted, as I hope it may be, the amendment concerning the Long Title in Amendment No. 105, the last on the Marshalled List, would have to be amended either this evening by a manuscript amendment—and there is no problem about that—or when the Bill reaches another place.

Lord Meston

My Lords, it is perhaps unfortunate that the noble Lord, Lord Henley, referred to the advice which the noble Lord, Lord Hylton, I think has received in respect of his amendments when the noble Lord is not in the Chamber. Of course that is an accident and nothing more. But, as I understand it, the noble Lord, Lord Hylton, has taken the course he has decided to take in respect of most of his amendments on the Marshalled List for Third Reading not for any reason other than that they apparently are not sufficiently different from those amendments which failed at the Report stage, suffering as they did the procedural mishap—

Lord Henley

My Lords, I think we divided on those amendments at Report stage.

Lord Meston

My Lords, the noble Lord. Lord Hylton, is now in his place and perhaps he can put us right if he has had a chance to catch up with the debate. I certainly understood there were procedural reasons why he felt unable to proceed with at least some of his amendments at this stage.

The Lord Bishop of Bath and Wells

My Lords, I should like to ask a question about this provision which supports the question which the noble Baroness has put, so to speak, from the legal environment. I should like to ask a question from the moral environment, not that that is in contrast to the legal environment, but just to give it a further dimension.

The Minister stated that one of the priorities of the Bill has been the protection of small children. Indeed, it includes legislation which intervenes in the lives of children at risk to bring them into the sphere of greater care and support and to try to prevent the brutalisation of children that takes place in their lives both at home and on the street. At various places in the Bill we see children exposed to the adult world, its procedures and expectations. The removal of the doli incapax is one part of this, and I understand the reasons why that has been removed. However, this further removal of the right to be silent seems to me to be a further exposure to that adult world. If the purpose of the Bill in a very deep way is to protect children, I cannot understand how this provision furthers that protection.

The childhood of a person seems to be a very fluid idea and one which is quite difficult to grasp sometimes as we tackle this Bill. It would be wrong not to register the fears that we have that this provision, with certain others, removes boundaries of protection from children which are necessary. The Minister said that the two reasons why this further amendment was needed was, first, not to be inconsistent with the removal of the doli incapax. The other was to achieve consistency with other laws. My question is: how is this consistent with the purpose and priorities stated in the Bill to protect children?

Lord Hylton

My Lords, for the removal of doubt, it may be appropriate to say that the reason why I am not moving two or three amendments standing in my name today has nothing to do with the Long Title of the Bill but rather that I have been advised that they touch on matters which have already been decided by your Lordships at an earlier stage.

6.45 p.m.

Lord Thomas of Gresford

My Lords, following upon the comments of the noble Baroness, Lady Mallalieu, would the Minister confirm that there is no reason why an advocate appearing for a child between the ages of 10 and 14 should not reveal to the magistrates or to a jury that he had given advice to the child not to give evidence in a particular case? If that were not to happen, it would be quite unfair for a tribunal of fact to draw an adverse inference against a child who had been so advised. I hope the Minister can help me with that.

Lord Williams of Mostyn

My Lords, I do not think that it is professionally proper to tell a court what advice one has given to one's client, whether an adult or child—not directly. It seems to me it would be perfectly proper to say either to the magistrates or to the jury in the Crown Court: "This is a young child and you have to bear in mind that I have been acting for him or her and I would ask you not to draw any adverse inferences against the child". I do not think one would be entitled to go further than that.

However, I do not think it is my present duty to be giving legal opinions on how advocates, solicitors or counsel address juries or magistrates. The noble Baroness, Lady Mallalieu, asked me what consultation there had been. There was no consultation on this because, as I have said, this is simply making it consistent with what already obtains in Sections 34, 36 and 37 of the 1994 Act. I am bound to say that I would tend to agree with her that in practice adverse inferences would be perhaps relatively rarely drawn and of course the nature of the inference might differ. Sometimes an inference may be heavily adverse and sometimes almost vestigial, if existing at all.

The right reverend Prelate asked about the boundaries of protection. We do not wish to take them away but simply to introduce a harmony and consistency with what presently obtains and has obtained since the passage of the 1994 Act. I respectfully repeat, in other words, that there are no restrictions at all on drawing inferences from the failure to mention those matters which are specified in Sections 34, 36 and 37.

I do not think it is appropriate for me to say anything about what the noble Lord, Lord Hylton, said. It is unfortunate, I agree with the noble Lord, Lord Meston, that the noble Lord, Lord Hylton, was not able to be present in the Chamber when the question was raised, but of course it was not I who raised it. In respect of Amendment No. 105, the death penalty amendments which were put down by my noble and learned friend Lord Archer of Sandwell were not outside the scope of the Bill. The amendment concerning the Long Title is simply consequential, which is not the same matter as "scope". I entirely agree with the thrust of what was said; it is for the House to decide what is or is not within the scope.

Lord Henley

My Lords, if the amendments of the noble and learned Lord, Lord Archer, which have gone through were not outside the scope of the Bill, why is the second part of Amendment No. 105 necessary when the noble Lord says that it is merely consequential? Either it was necessary or it was not. If the noble Lord includes it, it implies that it was necessary, which implies that the amendments were outside the scope of the Bill at the time we discussed them.

Lord Williams of Mostyn

My Lords, it was a consequential amendment; it was not necessary to make the amendments within the scope of the Bill. The noble and learned Lord, Lord Archer of Sandwell, could move his amendments successfully.

On Question, amendment agreed to.

Clause 30 [Abolition of death penalty for treason and piracy, etc.]:

Lord Williams of Mostyn

moved Amendment No. 11: Page 24, line 5, at beginning insert— ("(A1) In section I of the Treason Act (Ireland) 1537 (practising any harm etc. to, or slandering, the King, Queen or heirs apparent punishable as high treason), for the words "have and suffer such pains of death and" there shall be substituted the words "he liable to imprisonment for life and to such". (A2) In the following enactments, namely—

  1. (a) section II of the Crown of Ireland Act 1542 (occasioning disturbance etc. to the crown of Ireland punishable as high treason);
  2. (b) section XII of the Act of Supremacy (Ireland) 1560 (penalties for maintaining or defending foreign authority);
  3. (c) section 3 of the Treason Act 1702 (endeavouring to hinder the succession to the Crown etc. punishable as high treason);
  4. (d) section I of the Treason Act (Ireland) 1703 (which makes corresponding provision),
for the words "suffer pains of death- there shall be substituted the words "he liable to imprisonment for life". (A3) The following enactments shall cease to have effect, namely—
  1. (a) the Treason Act 1790;
  2. (b) the Treason Act 1795.").
The noble Lord said: My Lords, we come now to the matters to which the noble Lord, Lord Henley, referred a moment ago. As your Lordships will remember, I undertook to do any further necessary work consequent on the overwhelming adoption by your Lordships of the amendments put forward in the name of the noble and learned Lord, Lord Archer of Sandwell. There are a number of amendments in this group, which I may perhaps summarise briefly by way of explanation.

The Treason Act (Ireland) 1537, Crown of Ireland Act 1542, Act of Supremacy (Ireland) 1560, Treason Act 1702 and Treason Act (Ireland) 1703 all need to be amended to insert a maximum penalty of life imprisonment because they provide for the death penalty for treason-like offences. Clause 103 is to be amended to provide for the extension of these provisions to Northern Ireland and Scotland.

The repeal of the Treason Act 1817 and Section 2 of the Treason Felony Act 1848 are consequential to the repeal of the Treason Act 1795 in Clause 30. The Treason Act 1790 and Treason by Women Act 1796 are repealed because they do no more than provide for the death penalty for women convicted of treason. The Sentence of Death (Expectant Mothers) Act 1931 and Sections 32 and 33 of the Criminal Justice Act (Northern Ireland) 1945 which provide that pregnant women may be imprisoned for life rather than executed are repealed because the death penalty will no longer be available.

I hope that that brief summary of the researches nobly carried out by the officials will be of assistance. I beg to move.

The Earl of Onslow

My Lords, this is the most glorious piece of information one could possibly come across. It has been worth waiting 30 years in your Lordships' House to know that slandering the sovereign in Ireland is still a hanging offence. When was anybody last prosecuted under the Treason Act (Ireland) 1537, the Crown of Ireland Act 1542—introduced, incidentally, by King Henry VIII, who probably had about as much control over the House of Commons as does the present First Lord of the Treasury—or the Act of Supremacy (Ireland) 1560? Surely we should not have Acts of Parliament on the statute book which are never used and which contain vast and draconian penalties? It is fun to laugh at them, but it is a serious matter to have Acts on the statute book with this level of punishment which no one in their right mind would dream of using.

Lord Archer of Sandwell

My Lords, I wholly agree with the noble Earl, Lord Onslow. I cannot answer his question; I can only say that this exercise was precisely in order to remove from the statute book Acts with draconian penalties which were never used. What he said we should be doing, we have done, at least in this regard.

The Earl of Onslow

My Lords, we have left in life imprisonment.

Lord Archer of Sandwell

My Lords, I see. The noble Earl wants to take me further than I was prepared to go, because I prefer to go one step at a time. I do not believe there is anything between us. It may be that he and I can hatch a plot together to implement his suggestion.

I wish to thank my noble friend Lord Williams for perfecting that which was already good. I should place on record his generous help throughout this exercise in enabling your Lordships to take an effective decision. I would not seek to improve either on his draft or on what he said in introducing it. He stationed the Government firmly on the side of the angels, and I am most grateful. I add only that I apologise for the deficiencies in my own research which made some of his researches necessary.

Lord Renton

My Lords, for the sake of clarity, may I say that I too welcome these amendments. I believe it is right to point out that the law of treason is not only ancient and confusing but contains a certain amount of nonsense as well. The noble Lord, Lord Williams, has eliminated not all but a great deal of that nonsense. I am fully in favour of abolishing the death penalty for acts of treason in time of peace; but, as I shall say when we come to Amendment No. 30, for two serious reasons I believe it should be retained in time of war.

The Earl of Mar and Kellie

My Lords, I wonder whether the Minister can help me with regard to which of these Acts relate to Scotland. It has been widely trailed that in the Scotland Bill one of the matters to be devolved to the Scottish parliament will be the death penalty. At the same time, we know that treason will not be devolved but will be a reserved subject. Since the Scottish parliament could presumably have dealt with the death penalty for piracy if devolution had already taken place, I wonder whether, if these amendments are accepted, it will be possible to devolve the death sentence to the Scottish parliament.

Lord Thomas of Gresford

My Lords, perhaps I might invite the Minister to consider whether there needs to be a redefinition of treason. That exercise is currently taking place in Hong Kong. The Provisional Legislative Council has wisely not grasped that nettle but it is a matter outstanding under the basic law and one which will shortly be addressed by the elected legislative council which will come into being after 4th May. As your Lordships can well understand, there are considerable difficulties in Hong Kong in defining what treason is, having regard to the handover of sovereignty to the People's Republic of China. There are people in Hong Kong who are concerned about what treason is in today's terms. I invite the Minister not to stop at this point but to bring forward a modern, up-to-date definition of treason.

Lord Williams of Mostyn

My Lords, the point made by the noble Lord, Lord Thomas of Gresford, is an interesting one. We shall take note of it and consider it.

Lord Archer of Sandwell

My Lords, before my noble friend leaves that point, he may recollect that in 1977 the Law Commission published a working paper on reform of the law of treason. I wonder whether it will be possible to invite them to take up this work again? I think a great deal of the work may already have been done.

Lord Williams of Mostyn

My Lords, as always, I am most grateful for the helpful suggestion put forward by the noble and learned Lord, Lord Archer of Sandwell, and will similarly consider that.

In respect of the questions asked by the noble Earl, Lord Mar and Kellie, I anticipated that he might ask them and I am able to say with total authority that by Amendment No. 81 the 1790 and 1795 Acts are repealed in Scotland. The 1814 and 1837 Acts, as amended by Clause 30, do extend to Scotland. Happily, I am able to tell your Lordships that I shall have no part in the impending consideration in your Lordships' House of the Government of Scotland Bill; I intend to have a day off. I am sure that the noble and learned Lord the Lord Advocate will be more than happy to correspond vigorously and energetically with the noble Earl, Lord Mar and Kellie, on that matter.

I am most grateful to the noble and learned Lord, Lord Archer, who is, as always, generous.

In respect of what was said by the noble Earl, Lord Onslow, it is almost as though the whole of my life has been a preparation for this moment. To have been able to make him happy, after 30 years in your Lordships' House, is a pleasure indeed and a treat that falls to very few. What I would suggest, in the spirit of amity which always informs our discussions across the Floor of your Lordships' House, is that he should not go precipitately for any further reforms because he is bound to have a significant second income by winning questions at Trivial Pursuit. I beg to move.

On Question, amendment agreed to.

7 p.m.

Lord Renton

moved Amendment No. 12: Page 24, line 5, leave out subsection (1) and insert— ("(1) When high treason is committed in time of war by any citizen of, or person resident in, the United Kingdom against Her Majesty by assaulting or threatening to assault her, or by giving aid to the enemy in the realm or elsewhere, the sentence for such high treason shall be that laid down in Section 1 of the Treason Act 1814 (form of sentence in case of high treason), namely that "such person shall be hanged by the neck until such person be dead". (1A) Any person found guilty of high treason in circumstances other than those set out in subsection (1) shall he liable to imprisonment for life."). The noble Lord said: My Lords, the purpose of this amendment is to provide an alternative to subsection (1) of Clause 30 as it stands. The effect of the amendment would be to retain the death penalty in time of war—I stress "only in time of war"—for two particular types of high treason. The first is assault or attempted assault upon the Queen or whoever is the reigning monarch. The other is aiding the enemy.

At the Committee stage the noble Lord, Lord Goodhart, from the Liberal Democrat Benches said that he would retain the death penalty for acts of treason in time of war. At the Report stage the noble and learned Lord, Lord Archer of Sandwell, for whom I have always had a very high regard both as a parliamentarian and as a colleague at the Bar, in moving what is now Clause 30, said: What it seeks to do"— that is, his new clause, which is now Clause 30— is to remove finally from the statute hook the last remnants of capital punishment in time of peace, that is, for certain types of piracy and treason".—[Official Report, 19/3/98; col. 841.] However, subsection (1) as it stands abolishes capital punishment for any high treason, in time of war as well as in peacetime. As I said just now on the other amendment, I, like most other noble Lords, wish to get rid of the death penalty in peacetime for every offence. Now I must mention that in a conversation I had with the noble and learned Lord, Lord Archer, this afternoon—he agreed that I should mention it—he told me that he did not intend that the death penalty should be retained even in time of war. However, I suggest that, technically speaking, subsection (1) as it stands does not fulfil the purpose which he had in mind. That is one reason why I have put forward Amendment No. 12 to replace subsection (1) of Clause 30.

However, my main reason for moving the amendment is that when members of our Armed Forces in time of war are sacrificing their lives it would be disgraceful if anyone in this country who assassinated the Queen, or perhaps her successor, or who aided the enemy, perhaps by giving vital information which reveals, for example, a necessary code used by the Armed Forces and on which so much can depend, or by blowing up a factory in this country where armaments are made, were merely sent to prison. That would not be enough to protect our sovereign and to protect our country. Anyone who behaves so treacherously when the future of our nation may be at stake and when our soldiers, sailors and airmen are risking their lives deserves to die. Furthermore, I suggest that they should be deterred. In most cases the death penalty would be a deterrent. I agree that there are cases where people are not deterred by the death penalty. That is common knowledge and stands to reason.

I must confess that the drafting of my amendment has been difficult. It has been difficult because of the confusion in the ancient law. I have had to use phrases which not only achieve the purpose I had in mind but which dovetail with the ancient statutes. Perhaps I may refer to my amendment. The phrase "in time of war" does not mean historically that war has had to be declared. Indeed in many of the wars of our history, including the recent war in the Falklands and the Gulf War, I understand, although I did not know about it until my noble friend mentioned it to me this morning, we made no declaration of war. But there was a war and we were involved.

We then come to the words, any citizen of, or person resident in, the United Kingdom". It would be absurd if a citizen of the United Kingdom could be convicted of treason in these circumstances but someone we had allowed to settle here—perhaps as a refugee—who had turned treacherously against us got off scot-free.

The Earl of Onslow

My Lords, I thank my noble friend for giving way. There is a judgment by Lord Justice Coke in the early 17th century which assumes that the moment someone comes to this country he owes a duty of loyalty to the Crown and is therefore capable of committing high treason; and people have been executed. That is set out in an Answer given several years ago to a Question I raised on treason with the then Lord Chancellor, the noble and learned Lord, Lord Hailsham.

Lord Renton

My Lords, perhaps I may express my gratitude to my noble friend, a layman. He has reminded me of something which I learnt years ago but had not remembered. I am grateful to him. He has strengthened my argument.

I should mention the words, assaulting or threatening to assault", Her Majesty. I confess that those are my words. They are my simple attempt in modern English to summarise the vast amount of verbiage that there is when the previous treason Acts have referred to acts against the person of the sovereign. "Assaulting or threatening to assault" is a fair way of putting it. If the attempt were a trivial matter the sovereign would have the power to grant mercy, so no problem would arise with that. However, a really serious attempt should carry the death penalty.

I should mention subsection (1A), because there I have come to express in effect what the noble and learned Lord, Lord Archer, really intended by the present subsection (1), which goes much further. I shall attempt to answer any questions on the drafting when I reply to the debate.

In conclusion, I share the widely held view that the use of the death penalty in peacetime in civilised countries today is undesirable but I hope that noble Lords will agree with me that the need to protect our sovereign and our country in time of war is paramount. I beg to move.

Lord Archer of Sandwell

My Lords, I am most grateful to the noble Lord, Lord Renton, who, with his customary courtesy, pointed out to me yesterday that he had set down this amendment and he very kindly discussed it with me. The words which he attributed to me at Report stage are accurately reported. I did say that the purpose was, to remove finally from the statute hook the last remnants of capital punishment in time of peace".—[Official Report, 19/3/98; col. 841.] The reason for that was because it does not purport to remove the last remnants of capital punishment in time of war. As I believe I explained at Report stage, we have limited the amendment by excluding from it offences against military law in time of war. If I remember accurately, the noble Lord, Lord Renton, was delayed in coming into the Chamber in that debate. I believe that he missed what I said so that may be the explanation. What your Lordships approved of was precisely what I had intended.

I excluded offences against military law not because I believe that our country is any safer for shooting soldiers for cowardice, but for two quite different reasons. First, because this is a Bill about civil law: and, secondly, because I accept that the arguments are different. I wanted to keep the debate as simple as possible. For those reasons my intention was to exempt offences against military law in time of war, and I said that we were not removing the last remnants except in time of peace. In fact, as I understand it, it is now reported that the authorities are considering whether the death penalty should be retained even for offences against military law, but that is not a matter with which we are concerned today.

I also said at Report stage that I thought that we could dispense with the death penalty for civilians even in time of war because I do not believe that that is how civilians are best motivated. I say at once that if I believed that Her Majesty's personal safety depended on retaining the Treason Act 1814 in its present form, together with the death penalty, I would certainly reconsider. But I do not believe that anyone who offered violence to Her Majesty today would be prosecuted for treason; there are better provisions on the statute book. Neither do I believe that we are best protected against spies and saboteurs by the fear of hanging. When arson in Royal dockyards was abolished as an offence, followed by capital punishment, in 1977, and almost unnoticed, there was no epidemic of incendiarism in dockyards.

I proposed, and your Lordships agreed, to clear the statute book of something which the noble Earl and I agree was a relic of a darker age, if only so that when my right honourable friend the Foreign Secretary speaks on our behalf to other countries in favour of civilised behaviour, he will do so with greater authority because this country will no longer be open to the reply, "But on your own statute book you have retained hanging". I wonder what history would say of us if in 1998 we almost abolished the death penalty, which for these offences has not been used for 50 years, but we did not quite do so.

I do not propose to develop further the differences between the noble Lord and myself. Some noble Lords may wish to do that. I believe that they are well known. Noble Lords will make up their own minds. I hold the noble Lord, Lord Renton, in as high regard as he very kindly said that he holds me. On this occasion I have the misfortune to differ from him.

7.15 p.m.

Lord Thomas of Gresford

My Lords, there are many reasons for wanting to see the end of the death penalty. One of them is that if a person is wrongly convicted there is nothing that can be done about it. I believe that has been one of the motivations for the abolition of the death penalty in this country and which has persuaded many people that it is a barbaric institution which must go.

The noble Lord, Lord Renton, has done great service, as he always does, in bringing forward this amendment. I deeply appreciate the strong feelings that are held by those who took an active part during wartime and saw events at first hand. The difficulty with drafting lends weight to the point that I was making earlier that treason should be looked at again. It also highlights a particular issue.

It is curious that on the definition of high treason in the noble Lord's amendment, the last person to be hanged in this country for that crime—namely, William Joyce—would not have been guilty of that offence. The curious thing about his case is that he was born in America; that he came to this country, pretended that he had been born in Galway, which was then part of the United Kingdom, and then obtained a British passport. His offences of giving aid to the enemy did not occur in this country. He did not spy in this country. The aid that he gave to the enemy was in Germany through the broadcasts he made during the war. Therefore, he was not a citizen of the United Kingdom nor was he resident here. He was not giving aid to the enemy in the realm. He was certainly giving it elsewhere, but not within the realm itself. William Joyce would not have been caught by this provision.

Your Lordships will remember that it was a case that eventually went to appeal to the Judicial Committee of your Lordships' House. The case gave rise to great controversy at the time. Had the trial not been held in the immediate aftermath of war when no doubt emotions were greatly involved, it is very likely that the decision could have gone a different way. It seems curious that a person is guilty of high treason simply because he has fraudulently obtained a British passport. It is with great regret that I must oppose this amendment.

Lord Waddington

My Lords, I shall speak very briefly in support of my noble friend Lord Renton. I do not expect for one moment that my oratory will carry the day, but I am sure that I am not alone in feeling very strongly about these matters. In time of war people are expected to die for their country. In World War II people who had no wish at all to serve in the Armed Forces were required to do so and were expected to die for their country. In such a war traitors can make it more likely that those soldiers, sailors and airmen serving in the Armed Forces, but not wishing to serve and doing their duty to their country, suffer the ultimate penalty and die.

It is quite wrong that such traitors should be treated more favourably than those members of the Armed Forces, the lives of whom traitors are prepared to see snuffed out. If another war were to occur in the course of which a traitor was arrested, tried, convicted and then merely sentenced to imprisonment, the situation would be treated with disdain and contempt by the members of our Armed Forces who at that time were risking death every day during which they continued to serve their country. It is an understatement—it is almost absurd—to say that that would be damaging to morale.

The noble and learned Lord, Lord Archer of Sandwell, said that the death penalty is not the best way to protect a country against spies and saboteurs. I am not suggesting for one moment that this amendment ought to be carried in order to give the necessary protection against spies and saboteurs. I am saying that it is a case of simple justice and common sense that in wartime, when people are facing death every day, they should know that if somebody commits acts which makes death more likely for them, that person will suffer the ultimate penalty himself.

Although I listened with great attention to the interesting speech of the noble Lord, Lord Thomas of Gresford, and to his argument that William Joyce would not suffer the death penalty if he were to act now as he did at that time, I must point out that it is not only people in the situation of William Joyce who do, and can, commit treason in time of war. With the greatest respect, I do not think that the noble Lord's argument impinged on this argument. I feel in my bones that it is not right in time of war to treat a traitor better than the soldiers whose lives he has imperilled.

Lord Grenfell

My Lords, I rise to oppose the amendment and to support the arguments which have been so eloquently made by my noble and learned friend Lord Archer and the noble Lord, Lord Thomas of Gresford. The national campaign for the abolition of capital punishment was the first national campaign in which I participated. I was a young undergraduate then and I do not regret participating in it for a moment. Either you are in favour of capital punishment or you are against it. I do not believe that you can be for it in some instances and against it in others. In my book, you are either for it or against it—and I am against it.

I should like to make one point about deterrence in relation to this clause. I recall reading that during the war a number of spies and saboteurs who were captured were offered the choice of either becoming spies for our side—that is, double agents—or being hanged. It is surprising how many (for reasons which only they can know) preferred to die rather than to change sides. That seems to indicate that the death penalty does not have quite the deterrence that is sometimes imputed to it.

I should like to refer to a point that was made by the noble Lords, Lord Renton and Lord Waddington, that it is simply unfair to fighting troops that they should die and that people who may be jeopardising their lives should be spared. That is a rather extreme argument. Soldiers die for many reasons, not least because there may be a failure of equipment or poor command. Soldiers die for many reasons other than the fact of being killed by the enemy. I find that a weak argument.

The greatest argument that I can marshal against the amendment—I declare an interest as a delegate to the Council of Europe—is that I find it very difficult as a British delegate at the Council of Europe to have to admit that we have not yet removed capital punishment from the statutes. It is high time that we did. Barring the fact that we still have the proviso at the moment for the retention of capital punishment under military law, I believe that in relation to civilian law it is high time that we got rid of the provision once and for all and completely.

Lord Monson

My Lords, I cannot agree that either one is in favour of capital punishment or one is against it. It is possible to be against it for the most part but in favour of it in rare instances. I had not intended to intervene, but surely the prospect of a long term of imprisonment is no deterrent to a civilian spy or saboteur in time of war because, even if he is caught, he will be expecting the enemy to win, upon which he will expect to be released and even rewarded. It is for that reason that I support the amendment.

Lord Lester of Herne Hill

My Lords, the issue before the House is whether it makes a crucial difference to the penalty of death if the crime is committed in time of peace or in time of war. Speaking for myself, I do not understand any principled basis on which we can make that distinction as law-makers.

The noble Lord, Lord Renton, for whom I have the same affection as the noble and learned Lord, Lord Archer of Sandwell, and the same respect, suggested that there were two tests. One is whether someone deserves to die and the other is whether the penalty will be a deterrent. If we are considering who deserves to die, most of us might think, leaving aside our objections to the death penalty, that George Blake, the traitor who was responsible for the deaths of 42 members of our secret service and got 42 years' imprisonment, deserved to die for that offence in peacetime. Most of us might think that those who murdered Airey Neave, MP—an act of cowardly terrorist murder—deserved to die. That was an act committed in peacetime. If we are talking about those who deserve to die, most of us might think that those who commit the crime of genocide, wiping out a whole people because of their racial origins, deserve to die. All of those offences committed in peacetime are subject to mandatory life imprisonment. Parliament enacted the Genocide Act in 1969 providing that as a penalty.

I happen to be against the death penalty on principle, like the noble Lord, Lord Grenfell, and others who have spoken. However, whether one is or is not against it in principle, we would have to have a sensible, rational basis for preserving the death penalty for any offences. I suggest that the vague offence of, giving aid to the enemy", would not be a sufficient basis for distinguishing an offence punishable by capital punishment by hanging, by the neck until … dead", from the other heinous crimes to which I have referred. Therefore, I am strongly opposed to the amendment which I think would disfigure the statute book. I am in favour of what is happening across the Council of Europe from Ireland in the West to Turkey in the East, which is wiping out the death penalty.

The Earl of Onslow

My Lords, it is awfully difficult to argue against my noble friend Lord Renton, who has been a real and genuine friend for a very long time. I come from a family who had, for want of a better phrase, "good wars" in both World War I and World War II. My grandfather walked round Eaton Square with Leo Amery on the night that John Amery was hanged. John Foster was a friend of my parents-in-law. He was the solicitor who defended Joyce.

I oppose the amendment in the name of my noble friend Lord Renton because I think that this decision ought to be made not, funnily enough, by those who knew the war, who remember it, who were deeply scarred by it, who fought in it, who risked their lives so that we can continue to bang on here, and who fought for our freedom, but by those who stood back and can take a judgment which is perhaps much more detached.

I end with another little family story. I had a forebear who was shooting partridges in Oxfordshire. Across the field came some drunken Irish agricultural labourers. My forebear said, "Where have you been"? They said, "We have been to the hanging". He said, "Good God, I've got the man's reprieve in my pocket". I see that the noble Lord, Lord Williams of Mostyn, is laughing. That happened in 1840, so one is entitled to a small grin now. However, as the noble Lord on the Liberal Benches said, such an error is something with which our consciences cannot be allowed to live. Therefore, with very much regret, I must oppose my noble friend's amendment.

7.30 p.m.

Lord Henley

My Lords, in speaking from this Dispatch Box, I remind the House that on these Benches and, I imagine, in all parts of the House, this is a matter best left to our consciences without the guidance of the Whips. In other words, this is a matter on which there should be a free vote. I also make clear, as I did at Report stage when the noble and learned Lord, Lord Archer, last moved his amendment, that I am opposed to all forms of capital punishment. They are impractical and increase the difficulty of obtaining convictions when one makes use of trial by jury and they are inhumane in a civilised society.

Nevertheless, the noble and learned Lord, Lord Archer, in moving his amendment on that occasion made it clear that he was doing so to remove the last vestiges of capital punishment in time of peace. It is right therefore that my noble friend Lord Renton should table his amendment on this occasion to allow the House an opportunity to put the case for retaining capital punishment in certain circumstances.

Lord Archer of Sandwell

My Lords, I thought that I had already explained and made perfectly clear at Report stage that I wished to abolish capital punishment for treason in time of peace or war. It was offences against military law in time of war that I excepted.

Lord Henley

My Lords, I entirely accept what the noble and learned Lord has said and I have no quibble with it. I believe that it is right for my noble friend to table this amendment because the understanding of many noble Lords was that the noble and learned Lord was trying to remove capital punishment in time of peace. As a result of this debate—it is unnecessary for the noble and learned Lord, dare I say it, to intervene—the noble and learned Lord has quite rightly made it clear to the House exactly what he means. That was not quite as clear at Report stage. Many noble Lords were left with the impression that he was simply trying to remove it in all cases in time of peace. There is no need for the noble and learned Lord to intervene.

Lord Archer of Sandwell

My Lords, I am grateful to the noble Lord for allowing me to intervene. At the risk of being tiresome, I said expressly virtually in words of one syllable—and certainly in the English language—that I proposed to abolish capital punishment for treason whether in time of peace or war. What was ambiguous about that?

Lord Henley

My Lords, I must look carefully at what the noble and learned Lord said. However, some noble Lords remained under a misapprehension. We have devoted 31 minutes to this subject, which is quite a long time in what is a fairly busy Third Reading. I believe that it is perfectly legitimate for my noble friend to bring this matter back on this occasion. We have had a useful discussion on it which has clarified some points. What my noble friend does with his amendment is a matter for him and him alone.

I believe that I have made clear my personal views on capital punishment. I believe that it is right, fair and proper to debate this amendment, but that does not imply any form of criticism of the noble and learned Lord, Lord Archer. If anything, it is probably a criticism of myself if I misunderstood the position on that occasion. I shall look carefully at the precise words used by the noble and learned Lord. However, some noble Lords understood the noble and learned Lord as I did.

Lord Williams of Mostyn

My Lords, when the amendment of my noble and learned friend Lord Archer was carried he made it plain that he wanted to abolish the death penalty for treason and piracy with violence. It made no provision for offences committed in times of war, and that is what the noble Lord, Lord Renton, addresses here. Certainly, the international conventions allow for the death penalty in times of war. As far as I could detect there was virtual unanimity on the last occasion when my noble and learned friend Lord Archer moved his amendment. The noble Lord, Lord Henley, is quite right: it is a matter for individual conscience. If this is put to the vote I shall vote against it.

It may be of interest that the Treachery Act 1940 was passed specifically to provide the death penalty for treacherous acts committed during the Second World War, but it applied only to that period of emergency. It is possible that similar legislation may be sought in future. I would not vote for it, but I simply put that as an alternative that may satisfy the troubles that have been expressed by the noble Lords, Lord Renton and Lord Waddington. The current Armed Forces legislation allows for the death penalty in certain circumstances. That is presently under review, but it would not be appropriate for me to comment further on that.

Lord Renton

My Lords, I am grateful to all who have spoken in this debate. This is a very important matter. In the sense that we should be changing our opinion as to what needs to be done to protect our sovereign and country it is a turning point in our history.

I am quite old but I shall not be 90 until August. I have lived through both world wars. My father served in the Army as a surgeon in the First World War from August 1914. I served as a territorial throughout the Second World War. When I was at Oxford in the late 1920s the talk was that another war would be unthinkable. There was a good deal of talk about disarmament not only in this country but elsewhere. In the Oxford Union in 1932 a majority voted in favour of declining to serve their King and country. Very soon after that Hitler came to power.

Fifty-three years have elapsed since the end of the Second World War. Admittedly, we have had some very tragic wars in between but they have not been on the same scale. I am concerned about the complacency that has recurred in the past few years in this country. It was there in the 1920s and the early 1930s between the First and Second World Wars. That is not my only motive. I felt that it was right to air this matter.

I should like to comment on just one or two of the contributions to the debate. The noble Lord, Lord Thomas of Gresford, made the powerful point that sometimes miscarriages of justice occurred. But we have a very thorough method of appeal in this country. I do not believe that anyone in this century who has been convicted of treason—there have been only a few such cases—has suffered a miscarriage of justice. No one can say that. As for William Joyce, he was the last of those to be hanged for treason but he was not the only one, as has been said by my noble friend Lord Onslow. I am grateful to my noble friend Lord Waddington. He put the point clearly and forcefully.

I was a little surprised by the comments of the noble Lord, Lord Grenfell, for whom all noble Lords have respect, about attitudes during and since the last war. It was a terrible war and it was the longest in what could be termed modern history. There was great loss of life all over the world. There was a determination everywhere except in the Soviet Union to try to attain peace. Now the Soviet Union has broken up through the resistance of the United States and ourselves. Let us never be complacent. One does not go as far as the Romans, who said that if one wanted peace one should prepare for war. I think that that may be going too far even today. However, we should be vigilant and prepared.

One could go on and attempt to answer the various points that have been made. I hope that noble Lords accept that this debate has been useful and that their views on this vital matter should be aired. I should like to test the opinion of the House.

On Question, amendment negatived.

Lord Williams of Mostyn

moved Amendments Nos. 13 and 14: Page 24, line 9, leave out subsections (2) and (3). Page 24, line 16, leave out subsection (5) and insert— ("(5) The following enactments shall cease to have effect, namely—

  1. (a) the Sentence of Death (Expectant Mothers) Act 1931; and
  2. (b) sections 32 and 33 of the Criminal Justice Act (Northern Ireland) 1945 (which make corresponding provision).").
On Question, amendments agreed to.

[Amendment No. 15 not moved.]

Lord Hylton moved Amendment No. 16: After Clause 30, insert the following new clause—


(". In paragraph 10 of Schedule 2 to the Sexual Offences Act 1956 (penalty for offence committed under section 6 (intercourse with girl under sixteen)), for the words "Two years", in both places in which they occur, substitute "Four years, or to a fine, or to both".").

The noble Lord said: My Lords, I have already spoken to these amendments at what seems a long time ago. I invite those noble Lords who wish to express their views to do so now. I beg to move.

The Earl of Mar and Kellie

My Lords, Amendments Nos. 17 and 79 which I have tabled are grouped with the English amendments of similar hue. If we are to have an age limit designed to protect young girls, that age limit should be well marked out as one which can be punished by a substantial period of imprisonment.

This measure is aimed at two groups: first, it draws the matter to the attention of those individuals who do not believe that the legal age of consent matters; and, secondly, to those who are contemplating the commission of a second or repeat offence.

I presume that the current maximum of two years is given out only to mature adults and not to 16 year-old boys offending with compliant 15 year-old girls, or vice versa, and that that practice will continue. There is of course a case for not imprisoning offenders whose sustained relationship has led to the birth of a child. The conflict of interests between punishing the parent and keeping the embryonic family together has somewhat crystallised this part of the debate. However, the amendment would be a useful one to the Scottish criminal law.

Lord Meston

My Lords, my name is to these amendments. On Report we had a debate which suggested that, whether or not the amendments tabled by the noble Lord, Lord Hylton, were acceptable in any form, the whole problem of child prostitution now requires fuller and wider scrutiny. I understood from the Minister's reply on Report that the Government are looking at that matter.

It was common ground that there are children who are especially vulnerable: those who run away from home and those who are in care. The Minister suggested that there was a serious risk that, if the noble Lord's amendments were carried at that stage, there would be an increase in child prostitution.

It was suggested that, whereas at present some men are deterred by the existing illegality of intercourse with a child under 16, they and others would take advantage of the removal of the criminal deterrent operating against a child. The main concern, which I believe all noble Lords shared and still share, is that the user and exploiter of child prostitutes should be punished, and that, wherever possible, the child concerned should be protected rather than penalised.

The Children Act machinery is already there. As the Children's Society has said in a valuable briefing, the provisions of the Children Act are a good reason for changing the law, and for looking again at the way in which, perhaps unfortunately, there is this link between consideration of the age of consent for sexual intercourse and the wider issuer of child prostitution. If nothing else, I hope that the noble Lord, Lord Hylton, despite the procedural difficulties which he has undoubtedly experienced, will continue the debate beyond the Bill's ambit.

7.45 p.m.

Lord Williams of Mostyn

My Lords, I was especially grateful to the noble Lord, Lord Hylton, for raising this subject. When we last discussed the matter there were difficulties, which I pointed out to your Lordships, which the noble Lord may well have accepted, in the form of his then amendments.

The only amendments that fall to be considered now—unless I have misunderstood the noble Lord's position—are his Amendment No. 16 and the parallel proposal from the noble Earl, Lord Mar and Kellie, relating to jurisdiction in Scotland. In response to the noble Lord, Lord Meston, I should say that I said to the noble Lord, Lord Hylton, in last week's debate, that we will be issuing new guidance which will draw on the outcome of consultation. The Department of Health has issued a consultation paper entitled Working Together to Safeguard Children; New Government Proposals for inter-agency Co-operation.

There will be new guidelines about how to deal with young girls who have been drawn into prostitution. The guidance—I hope that this will be of some comfort to the noble Lord, Lord Meston—will be joint Home Office/Department of Health guidance—I believe that to be important—for the police and social service departments. We hope and aim to publish that guidance in the autumn.

On the particular proposals, I am sympathetic to the amendments because, in effect, they double the term of imprisonment from two years to four years. We have to ensure that we have a penalty framework for sexual offences which is as coherent as we can make it. There are undoubtedly some existing anomalies. We believe that the proposals would create even more anomalies. We should consider penalties for other comparable offences to ensure that relative gravity is properly reflected.

We need to look at other consensual sexual offences such as sexual intercourse with boys under the age of consent. We do not want to increase this penalty in isolation. At a very late stage in the Bill's passage—this is not a reproach—it is difficult to look at all the complex interrelating offences. We should look at the matter in the round rather than merely wishing to send a signal—the signal that we all want to send—which is not the way to do it. On the basis of that explanation of the Government's position, and, in particular, the fuller news upon the guidelines that I was able to give, I hope that on this occasion the noble Lord will feel able to withdraw the amendment.

Lord Hylton

My Lords, I am grateful to the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Meston, for what they have just said. I thank the Minister for his letter to me of 29th March, for his Written Answer of yesterday, and for what he has just said about future guidance to professionals about the great need for inter-agency co-operation.

It seems to me that enough has been said on Report and today to alert both Houses of Parliament and the wider public to the serious evils of child prostitution in England and Wales, and, I think I can confidently say, in Scotland also.

The problems connected with child prostitution often start with suspension or exclusion from school, as I tried to indicate in a letter to The Times which was published soon after the Bill's Second Reading. Family violence, family break-up, remarriage and bullying of all kinds, all contribute to running away from home or other places, which often ends in prostitution. The taking into care of children, alas, does not always solve the problems that it seeks to address.

There is need for more sensitivity and listening and for better inter-agency and inter-professional team work. Relationships of trust are needed to prevent juvenile crime. I commend to your Lordships and to Her Majesty's Government the conclusions of the 1996 Stockholm Conference (World Congress against the Sexual Exploitation of Children) together with recent publications by the Children's Society and Barnardos, particularly Child Prostitution in Britain, edited by David Barrett.

I do not believe that it can be left to voluntary organisations alone to meet all the needs which are not covered by the provisions made by central and local government. An existing network is available to prevent and cope with child prostitution; namely, the area child protection committees which cover the whole country. Will the Government give them new and wider guidelines and greater resources in those places where child prostitution is most concentrated? Will they strengthen those groups set up by the Association of Chief Police Officers, which include the Department of Health, the Crown Prosecution Service and the Home Office? Will they ask that group to report as a matter of urgency?

At this time of day and in this situation, I do not intend to press the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Clause 35 [The Youth Justice Board]:

Lord Williams of Mostyn

moved Amendment No. 18: Page 27, line 20, at end insert ("following matters, namely—(i) the"). The noble Lord said: My Lords, my noble and learned friend Lord Falconer indicated on 19th March, responding to an amendment tabled by the noble Earl, Lord Mar and Kellie, that the Government wish to broaden the functions of the youth justice board established under Clause 35 in identifying and promoting good practice and commissioning research.

As currently drafted, subsections (5)(f), (g) and (h) of Clause 35 enable the board to identify and promote good practice in the operation of the youth justice system and the provision of youth justice services; to make grants to local authorities and other bodies to develop, or commission research into, good practice in working with young offenders; and itself to commission such research.

Amendments Nos. 18, 19 and 20 will extend these provisions to enable the board to identify and promote, and make grants and commission research in respect of, good practice in the operation of the youth justice system and the provision of youth justice services; preventing offending by children and young people; and working with children and young people who are, or are at risk of becoming, offenders. This will give the board a broad scope to identify and support good practice in the youth justice field and thereby raise standards in work to prevent and address youth offending. I beg to move.

The Earl of Mar and Kellie

My Lords, I am pleased to see this group of amendments. I must thank my noble friend Lord Thomas of Gresford for drafting Amendment No. 19. It is better than my solution, which was to reprint all 16 pages of Part III of the Social Work (Scotland) Act 1968. Another rainforest has been saved. The amendments do not quite implement the children's panel in England, but I am pleased that some aspects may be incorporated because research into the Scottish system is allowed.

I wish to pose two questions, although I know that they cannot be answered today because we must watch what happens after the enactment of the Bill. Fast tracking is an intention of the Bill as regards youth justice. Is it possible to have a fast track without by-passing the due process? I continue to cite the children's panel as a system able to by-pass that.

As regards paragraph (g), can a local authority study the children's panel system and implement it? I realise that that question cannot yet be answered, but it will be interesting to see how many varieties of the youth justice system evolve.

On Question, amendment agreed to.

Lord Williams of Mostyn

moved Amendments Nos. 19 and 20: Page 27, line 22, at end insert—

  1. ("(ii) the prevention of offending by children and young persons; and
  2. (iii) working with children and young persons who are or are at risk of becoming offenders;").
Page 27, line 24, leave out from ("develop") to second ("and") in line 26 and insert ("such practice, or to commission research in connection with such practice;"). The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 37 [Time limits]:

Lord Falconer of Thoroton

moved Amendment No. 21: Page 28, line 43, after ("magistrate") insert— (ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences;"). The noble and learned Lord said: My Lords, this is an amendment to Clause 37 which makes provision in relation to time limits. We believe that time limits can serve as a effective reinforcement of the new improved case management measures which we are also introducing in this Bill. We plan to introduce the new regime of time limits, after piloting, once those new procedures are in place.

One of the essential changes we are making to the existing regime is to tighten the court's discretion to grant extensions to time limits. The existing provisions in the 1985 Act allow the court a wide discretion in deciding whether to extend time limits. We know from the operation of existing custody time limits that extensions are not infrequently granted.

We believe that the criteria for extension need to be made more prescriptive for the new time limits regime to have any teeth. That is why Clause 37 as it stands prevents the court from granting an extension unless it is satisfied that the cause of any delay is due to illness or absence of the accused, a necessary witness or a magistrate or judge, or to some similar situation covered by the interpretation of "good and sufficient cause", and that the prosecution has acted with all due diligence as well as expedition.

However, this amendment introduces an additional specific reason which we consider might legitimately justify an extension to a time limit, and that is the court's ordering of separate trials for a single defendant charged with more than one offence or for co-defendants jointly charged. The discretionary power to order separate trials is exercised where, for example, the court considers that defendants may be prejudiced or embarrassed in their defence as a result of a single trial. Without the proposed amendment, where the court orders separate trials, there is a risk that the time limit might expire before the later trial. The effect of that would be that the proceedings would be stayed or, if the defendant were in custody, he would be released on bail. The ordering of separate trials is an issue over which the prosecution has no control and it is only right that the proceedings should not be stayed or the defendant released if a trial were postponed for that reason.

We believe that, with the inclusion of this amendment, the new provisions for extending time limits strike the proper balance between tightening up the existing criteria to ensure that time limits genuinely bite, and allowing the courts the necessary flexibility to allow more time. No extension to time limits should be granted unless the court is satisfied that the need for an extension is due to one of the specified reasons, or to a similar situation, or to a real difficulty which is not the result of any inefficiencies of practitioners or of the courts themselves. This is an important point. There may be good and sufficient reasons other than those specified on the face of the Bill for granting extensions in individual cases. For example, any court which did not allow more time at the proper request of the defence, where any delay was not due to time wasting or inefficiency, would be liable to be in breach of the European Convention on Human Rights. But we want courts to take a tough line on adjournments, and we do not expect the stringency of the new time limits regime to be eroded by routine granting of adjournments at the request of either of the parties. I beg to move.

On Question, amendment agreed to.

Clause 43 [Powers of magistrates' courts exercisable by single justice etc.]:

Lord Williams of Mostyn

moved Amendment No. 22: Page 33, line 37, leave out ("the probation service"). The noble Lord said: My Lords, when on Report we debated what is now Clause 43, I promised to bring forward amendments to deal with many of the points which had caused concern. I was grateful to have had useful conversations with the noble Baroness, Lady Anelay, with the Lord Chief Justice by letter and with the Magistrates' Association and the Justices' Clerks' Society. Because of those conversations, and because we promised to look carefully at these matters and to take into account real concerns, we have brought forward these amendments. The most significant is that which adds new subsection (2A) to Clause 43.

It limits the powers which are capable of being made available to justices' clerks. Clerks will have no power to remand a defendant in custody, and will have the power to remand on bail only on the same conditions as those previously imposed, unless the prosecution and the accused consent to their being varied or to new ones being imposed. The same restrictions apply to the power to remand defendants at an early administrative hearing, which now appears in Clause 44. The result is that there are no circumstances in which a clerk will be able to remand a defendant in custody.

The other restrictions on Clause 43 powers are that a clerk cannot impose reporting restrictions; he may make orders for separate or joint trials only with the consent of all the parties; and while he may request a pre-sentence report, he cannot give an indication of seriousness. Those latter matters were raised in particular by the noble Lord, Lord Goodhart, whose presence I was looking for and have now discovered to my surprise, because I was going to make those remarks in his absence.

In the debate on Report the noble Baroness, Lady Anelay, wondered whether the effect of this would be that pre-sentence reports would be ordered almost as a matter of course, with unfortunate implications for resources. I see no reason to fear such an outcome, since clerks should be as well able as magistrates to assess whether a PSR is likely to be required. The other amendments are drafting improvements only.

I hope that noble Lords who expressed concern about those matters will feel that we have reasonably met those concerns. It may be that Amendment No. 25 will no longer prove necessary, although it was a useful spur to action. I beg to move.

8 p.m.

Baroness Anelay of St Johns

My Lords, I thank the Minister for bringing forward these amendments. They meet many, if not all, of the concerns that I have expressed throughout our debates on the Bill.

I was very grateful to the Minister for agreeing to my request for a meeting between Committee and Report stages, a meeting at which the Magistrates' Association, the Justices' Clerks' Society, the noble Baroness, Lady David, the noble Lord, Lord Goodhart, and I were able to discuss Clause 43 with the Minister and his officials. We all thoroughly appreciated that opportunity. I am sure that the Minister was left in no doubt as to the strength of our views. Those views were expressed throughout in a non-party, non-partisan manner.

I am grateful also for all the efforts made on behalf of those who had concerns about the clause. I am grateful for the work done by my noble friend Lord Kingsland and by the noble and learned Lord the Lord Chief Justice.

I welcomed the Minister's statement on Report that he would bring forward amendments at Third Reading to make clear the extent of the powers which clerks would be capable of exercising, subject to rules. I recognise that the undertakings that he gave on Report are met within the amendments that he is moving today.

However, I place it on record that I have never called into question throughout these debates the competence of experienced justices' clerks to perform all the functions listed in Clause 43. I have simply questioned whether it is appropriate for them to do so. There has been a general principle underlying my anxieties about Clause 43. It is simply that the lay magistracy performs valuable judicial functions which should not in themselves be devolved to justices' clerks. In particular, I had in mind the granting of bail and the ordering of pre-sentence reports, by which the clerk is involved in giving the Probation Service an indication of the seriousness of the offence and thereby involved in the sentencing process.

I certainly welcome now the changes that the Government have introduced, whereby they have restricted some of the bail-granting powers which were to be devolved and have removed from the ordering of the pre-sentence report the requirement that the clerk should give an indication of the seriousness of the offence. That was most welcome.

The Minister made reference to a worry which I voiced on Report; namely, that the ordering of the PSR would become merely mechanical and automatic. I perhaps did not explain sufficiently effectively on Report my real concern in that regard. It is that, when a clerk now orders a report without giving an indication of the seriousness of the offence, it means that on each and every occasion when the clerk makes such an order, the Probation Service will be required to make an all-options report; and that must be assessed individually as against every single available sentencing option.

I have been reminded by the Magistrates' Association that that could work counter to the efforts it has been making with the Probation Service to work out a system by which the Probation Service's mind and efforts are focused more closely upon what might be more appropriate in an individual case. However, I place on record as a caveat the fact that we on these Benches note that there may be an unintended outcome to the way in which the Government have phrased the amendments.

As I mentioned earlier, I certainly welcome the fact that the Government have thought again on the way in which Clause 43 should operate. I thank the Minister for the concessions which have been made.

Lord Goodhart

My Lords, this matter was originally raised at Second Reading by the noble and learned Lord the Lord Chief Justice as a matter of concern. It has been handled in a very non-partisan way. I am most grateful to the Minister for the way in which he has listened, not only to the noble and learned Lord the Lord Chief Justice but also to those matters put forward by the noble Baronesses, Lady Anelay and Lady David, and myself at the meeting which we had some weeks ago in his office.

The provisions of Amendment No. 27 substantially meet all the problems which I felt were created by the original version of this clause. In particular, I am grateful for the fact that among the matters with which a justices' clerk cannot deal is the point that I raised about the prohibition on the publication of matters disclosed in court.

The noble Baroness, Lady Anelay, indicated that this was in no sense intended as a criticism of the capacity of justices' clerks. Indeed, as I said in Committee, if anything, this is the opposite problem, since justices' clerks are professionally qualified and trained whereas lay magistrates are not. It is a matter of some importance to ensure that the role of justices' clerks is not allowed to take over from the role which is properly that of magistrates.

However, this is one matter that has clearly had a happy ending. I am most grateful to the Minister for the action he has taken.

Viscount Tenby

My Lords, as someone involved in a somewhat desultory way with the original Clause 40 of the Bill but who was unable, alas, to attend the very important meeting at the Home Office at a later date, I wish to associate myself with the remarks of the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart. I thank the Minister for being so approachable and so accommodating on this subject.

On Question, amendment agreed to.

Lord Williams of Mostyn

moved Amendments Nos. 23 and 24: Page 34, line 18, leave out from ("informations") to end of line 20. Page 34, line 23, after ("may") insert (", subject to subsection (2A) below,"). On Question, amendments agreed to.

[Amendments Nos. 25 and 26 not moved.]

Lord Williams of Mostyn

moved Amendments Nos. 27 and 28: Page 34, line 30, at end insert— ("(2A) Rules under that section which make such provision as is mentioned in subsection (2) above shall not authorise a justices' clerk—

  1. (a) without the consent of the prosecutor and the accused, to extend bail on conditions other than those (if any) previously imposed, or to impose or vary conditions of bail;
  2. (b) to give an indication of the seriousness of an offence for the purposes of a pre-sentence report;
  3. (c) to remand the accused in custody for the purposes of a medical report or, without the consent of the prosecutor and the accused, to remand the accused on bail for those purposes on conditions other than those (if any) previously imposed;
  4. (d) to give a direction prohibiting the publication of matters disclosed or exempted from disclosure in court; or
  5. (e) without the consent of the parties, to give, vary or revoke orders for separate or joint trials in the case of two or more accused or two or more informations.").
Page 34, line 34, at end insert— ("( ) In this section and section 44 below "justices' clerk" has the same meaning as in section 144 of the 1980 Act.").

On Question, amendments agreed to.

Clause 44 [Early administrative hearings]:

Lord Williams of Mostyn

moved Amendments Nos. 29 and 30: Page 35, line 1, leave out subsection (3) and insert— ("(3) At such a hearing the single justice—

  1. (a) may exercise, subject to subsection (2) above, such of his powers as a single justice as he thinks fit; and
  2. (b) on adjourning the hearing, may remand the accused in custody or on bail.
( ) This section applies in relation to a justices' clerk as it applies in relation to a single justice; but nothing in subsection (3)(b) above authorises such a clerk to remand the accused in custody or, without the consent of the prosecutor and the accused, to remand the accused on bail on conditions other than those (if any) previously imposed."). Page 35, leave out lines 4 to 7.

On Question, amendments agreed to.

Clause 46 [Provisions supplementing section 45]:

Lord Falconer of Thoroton

moved Amendment No. 31: Page 36, line 44, leave out ("Criminal Justice and Public Order Act 1994 ("the 1994 Act"),") and insert ("1994 Act,").

On Question, amendment agreed to.

Clause 47 [Crown Prosecution Service: powers of non-legal staff]:

Lord Falconer of Thoroton

moved Amendment No. 32: Page 37, leave out lines 35 to 37. The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 33 to 37. The main objective of this new Clause 47 is to enable designated lay staff to deal with the sort of case which Narey described as a, "straightforward guilty plea". It is also intended that they should be able to present motoring cases which fall to be proved in the defendant's absence. Unfortunately, it is not open to us to adopt here in the Bill the expression used by Narey. Although we know what we mean by a "straightforward guilty plea"—that is, cases where there is no dispute as to the facts—it is rather difficult to define it on the face of the Bill. As a result, we must proceed by way of exclusion.

On Report, I said that we would be willing to exclude from the scope of the clause cases involving indictable-only offences. That is one of the effects of the amendments. CPS staff who are not legally qualified will not be capable of undertaking the review of indictable-only cases or their presentation in the magistrates' courts (which will in future, owing to Clause 45, be a very brief stage in the proceedings).

Indeed, in excluding indictable-only cases, the amendment will actually remove an existing power of lay staff. The current Section 7A of the Prosecution of Offences Act 1985 is subject to no restriction as to the offences in respect of which a bail application may be made, and there is nothing to prevent lay staff from dealing with bail applications in indictable-only cases. Those critics who have referred to this possibility as though it were the result of this clause are, therefore, mistaken: it represents the present theoretical position, although in practice lay staff do not deal with such cases. The amendment brings the provision and the practice into line by making it clear that lay presenters will perform no functions in respect of indictable-only cases.

I also said on Report that we would examine whether further drafting improvements could be made to the clause. The amendments will exclude from Clause 47 the powers of a Crown prosecutor in relation to decisions whether to institute proceedings. The decision to institute proceedings is usually taken by the police, and the sort of case in which it falls to the CPS to take that decision would certainly not be suitable for lay staff to deal with but should be reserved to a Crown prosecutor.

There is a further category of business which we believe it will be possible to exclude; namely, the review of cases which are to be committed to the Crown Court, or dealing with committal proceedings. With your Lordships' approval, we shall return to those matters in another place.

The amendment tabled in the name of the noble Baroness, Lady Anelay, would restrict lay staff to dealing with non-imprisonable offences. As I commented on Report, such a restriction would have the disadvantage of preventing lay staff from dealing with some offences which, though imprisonable, would be entirely within the range of the lay staff. I do not believe that that represents the right way forward.

I know that the degree of supervision which is to be exercised over lay staff by Crown prosecutors is a matter of concern. I am advised that the current formula, subject to instructions given by the Director", is sufficient to cover the supervision which it is certainly intended should be exercised by legally-qualified Crown prosecutors. However, if there is any doubt on the subject, we should of course be ready to dispel it.

I should also like to reiterate the assurances that I gave previously about guidance and training. There will be a requirement on the face of the Bill that the guidance which the director issues as to the deployment of lay staff should be published in the annual report of the CPS, and that any changes which may subsequently be made to that guidance should be publicised in the same way. We intend to ensure that lay staff who are designated under this clause are given thorough training in the law, practice and procedure in magistrates' courts and in how to present the facts of a case. This is a substantial programme which will take some time to complete, but, as the provision is to be piloted in a few areas before it is adopted nationwide, the training initially required will be on a manageable scale.

Finally, perhaps I may deal with one matter which I know has caused concern to certain people; namely, the prospect of a case being heard by a court consisting entirely of laymen where an unrepresented defendant pleads guilty before a lay Bench and a lay presenter appears for the Crown. That fails to take into account the court clerk. By virtue of the Justices' Clerks (Qualifications of Assistants) Rules 1979, clerks in courts must either be professionally qualified or be qualified by reason of experience.

I believe that we have taken very largely on board the many legitimate concerns raised about the drafting of Section 7A of the Prosecution of Offences Act 1985. I very much hope that we have met all the legitimate concerns of noble Lords. I also hope that I have said enough to persuade your Lordships that our broad aim here is one that we all share; namely, to implement the Narey proposal and not to introduce a more general provision. I beg to move.

8.15 p.m.

Baroness Anelay of St Johns

My Lords, with the leave of the House, I hope that I may speak now to my amendment as the Minister made mention of it. I am certainly grateful for the fact that, since the Committee stage, the Minister has had further meetings with regard to how the clause may be amended. I am grateful to him for the invitation to attend the meeting which was held yesterday afternoon. I know that the meeting was attended not only by the noble and learned Lord, Lord Falconer of Thoroton, but also by the noble Lord, Lord Williams of Mostyn, the noble Lord, Lord Meston, and representatives of the Bar Council. I apologise for the fact that I was unable to attend that meeting, but I was one of the very few Members of this House who were in the Chamber yesterday for the proceedings on the Social Security Bill until late last night. I was certainly pleased to hear that some modest but, nonetheless, important progress was made at that meeting.

My amendment refers to the remaining area of concern whereby it was felt that it would not be appropriate for lay presenters to be able to prosecute cases which consisted of offences triable either way or offences which may only be summary in themselves but which, on conviction, could leave the convicted person open to a sentence of imprisonment. I noted what the Minister said about the potential competence of lay people to deal with such cases, the provision of training which is intended to be put in place and, indeed, the piloting which is to be carried forward before the system is established nationwide.

However, I have some residual concerns about whether sufficient attention has been paid to some of the complexities which may arise quite unexpectedly in what may appear to be the most simple and straightforward of cases. Indeed, I recall debates in this Chamber yesterday evening during proceedings on the Social Security Bill—and the noble and learned Lord the Lord Advocate will remember because he was one of the select band concerned—when we discussed the fact that one could have at an appeal tribunal a case which simply seemed to be an open and shut matter until, for example, something like an administrative announcement had to be made, or the production of a document which had not hitherto been produced was required, or an explanation needed to be given, which had not been given to the person at the tribunal.

I believe that that reads across to the kind of situation that one can have in what appears to be a straightforward summary matter. I have concerns which I hope the Minister will be able to quell tonight as regards how the cases will be allocated to lay people. Of course I am aware that there will be qualified justices' clerks in magistrates' courts. Indeed, from the discussion on the last amendment, I recognise the experience that they have. However, the person who is acting on behalf of the CPS—the lay person—could find that he is at a distinct disadvantage if something unexpected occurred. It could well be that the experienced justices' clerk notices something that is wrong with a particular document which has been served. From my own past experience as a magistrate, I know that that is not an uncommon feature of life in such courts. For example, it may well be that the justices' clerk notices that someone has decided on a particular plea which is not appropriate. Indeed, justices' clerks have some knowledge of documents that magistrates do not and yet they are in a position where they cannot, as justices' clerks, advise defendants.

I do not believe that there is in every sense a way of predicting what is a simple, straightforward case. I should be grateful if today the Government could say how they hope to ensure that only simple, uncontested cases will be involved. I have expressed that badly. However, I hope that the Minister can reassure me that the Government and the public can be satisfied that lay persons will deal only with simple, uncontested cases. I hope he can give me some idea of what is meant by "simple". I should be happy if that could be explained. If I were satisfied on that point, I would not feel it necessary to move my amendment. Having sat as a magistrate, I know that lay justices do a valuable job. However, they should not be expected to deal with problems caused by the CPS having delegated the presentation of a case to a lay person. They have the right to expect a professional presentation of even the most simple, straightforward cases.

Lord Meston

My Lords, I, too, am most grateful to the Government for having moved as far as they have to meet the concerns which have been expressed both inside and outside the House as regards the proposed new clause. I record my thanks for the meeting yesterday with both the noble and learned Lord the Solicitor-General and the noble Lord, Lord Williams of Mostyn, and for the evident time and trouble both they and their officials have taken over these matters.

The three main areas of concern as regards delegation to non-legal staff are the following. First, I address the categories of offence which non-legal staff may handle. I recognise that the Government have moved at least half-way on this, but I support the request of the noble Baroness, Lady Anelay, for more clarification of how straightforward cases will in practice be predicted.

Secondly, there is concern about the functions which may be delegated. The decision to institute proceedings has now been removed from non-legal staff by the government amendments this evening. However, I understand that the subsequent conduct of proceedings will remain a matter capable of delegation. However, I should be grateful for confirmation on my next point, if possible, from the noble and learned Lord who is to reply. Will it still be mandatory, at least by some internal regulation, for certain decisions to be referred to legally qualified staff, for example whether to accept a plea of guilty to a lesser offence? There is also the problem of the Newton hearings, some of which can be remarkably straightforward but some of which can be remarkably complicated and long drawn out. How will these be allocated in practice as between lay presenters and legally qualified staff? My understanding is, again, that straightforward matters can be left to lay presenters, but how will this be determined in practice and anticipated in advance?

I have only two experiences of Newton hearings. One was when I represented a burglar charged with stealing a quantity of cutlery who insisted that, although he was guilty of taking the knives and the forks, he was not guilty of taking the spoons. This did not trouble the court for long or, I suspect, make any difference to the sentence which he received. On the other hand, I have also represented a woman of good character who was charged with taking a large sum of money from her employers. She would not explain what had happened to the money, nor her reason for doing so. It emerged at the last moment that her real motivation had been extreme pressure and threats from unlawful money lenders. No doubt the Newton hearing in that case made a substantial difference to the sentence which was passed, which otherwise, almost inevitably, would have been a sentence of imprisonment for someone who had never been near a prison before. How will that work in practice?

The third area of concern is, of course, supervision and training. I hope that it is now accepted by the Government that the general phrase in the Bill providing for instructions to be given does not of itself require there to be direct supervision of individual staff to whom these functions are to be delegated. I suggest it remains a failing of the Bill that there is no reference on the face of the Bill to direct supervision. However, I understand that there will in practice be supervision in place. I understood the noble and learned Lord in introducing these amendments to say that this is a matter which will be covered in the annual reports, presumably to allow for a degree of flexibility.

We are left with the promise that more is to come in another place. It is perhaps unfortunate that we are having to debate these matters and consider these amendments in advance of the report by Sir Iain Glidewell. At Committee stage I understood that there was at least a possibility that that report would be with the Government before this Bill completed its passage through the House. However, that may not now be the case. Can the noble and learned Lord give an indication when the Glidewell report is to be expected?

Lord Falconer of Thoroton

My Lords, I am grateful for the contributions that have been made to the debate on these government amendments. I shall deal with the three main points. First, as regards categories of offence that will be dealt with by lay presenters, as I indicated, the Narey Report deals with the question of uncontested cases which it has in mind for lay presenters. Narey states, One of the things which most struck me on visiting CPS offices was the amount of entirely straightforward work being handled in the office and at court by lawyers. Much of this work must he dispiriting. I am convinced that administrative staff, managed by lawyers and dealing exclusively with uncontested cases, could successfully and efficiently present cases at court, freeing lawyers to concentrate on contested cases". Narey does not go further than that. One category of case we have in mind is where there is a simple series of facts and where a guilty plea is anticipated. The other category is where there is the need to prove the case against the defendant in a motoring case in the absence of the defendant. I think I mentioned at Report that I had visited the Abingdon Crown Prosecution Service where a lawyer had returned from Banbury having spent the whole day reading out computer print-outs which proved speeding offences had been committed when motorists passed the "boxes" set up at the roadside. I believe it is that kind of case and the simple guilty plea where the defendant does turn up which will be the kind of uncontested case that the lay presenter will deal with.

Secondly, I turn to function. As the noble Lord, Lord Meston, said, non-legal staff will no longer be entitled to initiate proceedings. He asked whether they would have to refer any kinds of decision to a legally qualified person. Plainly they will have to do so in certain situations, for example when deciding whether to accept a plea to a lesser charge. The noble Lord mentioned that example. The noble Lord referred to Newton hearings. These are not strictly contested matters. However, if there is any substantial issue which affects the basis of the plea, we would normally expect that that would not be dealt with by a lay presenter. As the noble Lord said, some Newton hearings simply involve the production of a letter to show, for example, that an insurance was only five days out of date as opposed to 15 days out of date. We see no reason why the lay presenter should not be present in the room when the letter is produced to show what the position is.

In regard to the important point made by the noble Baroness, Lady Anelay, it is absolutely right that one cannot predict whether a case which looks straightforward will be straightforward. All that one can do is make a reasonable judgment in that regard. In my experience, most cases that look straightforward—I emphasise the word "most"—are straightforward. However, as regards those which go wrong, as it were, or become more complicated at the magistrates' court, we hope that eventuality will be provided for in the guidance that is to be issued. The noble Lord, Lord Meston, referred to the important point of supervision. That will be dealt with in the guidance. Following a future amendment, the Crown Prosecution Service will be under an obligation to publish that guidance as a result of a requirement to be placed in the Bill.

The noble Lord, Lord Meston, referred to the Glidewell Report. It is anticipated that this Bill will complete its passage through this House during the course of this evening. The bad news is that Sir Iain Glidewell has not yet produced his report. Unless it arrived when I was out—and I have reason to believe that it did not—it will not be produced before the Bill has gone through this House. I have not checked Hansard, but I do not think that I said it would come before the Bill went through this House but before the Bill came into force. I hope that will remain the position.

8.30 p.m.

Lord Meston

My Lords, I may have misunderstood the position. I believe the noble and learned Lord said at an earlier stage that it might be produced before the Bill completes its passage through Parliament, not through this House.

Lord Falconer of Thoroton

My Lords, I am not sure when the Bill will complete its passage through Parliament as a whole. I am not sure when Glidewell will appear, either. I cannot tell you which will come first. I did say that we would see it before the Bill was brought into force, and I am sure that that will remain the position. I think I have dealt with the noble Lord's concerns.

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendments Nos. 33 to 35: Page 37, line 38, leave out ("such a") and insert ("a Crown"). Page 37, line 43, at end insert— ("( ) the powers of such a Prosecutor in relation to the conduct of criminal proceedings not falling within paragraph (b)(ii) above."). Page 38, line 5, leave out ("has") and insert ("would have").

On Question, amendments agreed to.

Lord Falconer of Thoroton

moved Amendment No. 36: Page 38, line 6, after ("Act") insert ("if in that section "offence" did not include an offence triable only on indictment; 3 "criminal proceedings" does not include proceedings for an offence triable only on indictment;").

[Amendment No. 37, as an amendment to Amendment No. 36, not moved.]

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 38: After Clause 48, insert the following new clause—


(" . For subsections (1) and (2) of section 120 of the 1980 Act (forfeiture of recognizances) there shall be substituted the following subsections— (1) This section applies where—

  1. (a) a recognizance to keep the peace or to be of good behaviour has been entered into before a magistrates' court; or
  2. (b) any recognizance is conditioned for the appearance of a person before a magistrates' court, or for his doing any other thing connected with a proceeding before a magistrates' court.
(1A) If, in the case of a recognizance which is conditioned for the appearance of an accused before a magistrates' court, the accused fails to appear in accordance with the condition, the court shall—
  1. (a) declare the recognizance to be forfeited;
  2. (b) issue a summons directed to each person bound by the recognizance as surety, requiring him to appear before the court on a date specified in the summons to show cause why he should not be adjudged to pay the sum in which he is bound;
and on that date the court may proceed in the absence of any surety if it is satisfied that he has been served with the summons.
(2) If, in any other case falling within subsection (1) above, the recognizance appears to the magistrates' court to be forfeited, the court may—
  1. (a) declare the recognizance to be forfeited; and
  2. (b) adjudge each person bound by it, whether as principal or surety, to pay the sum in which he is bound;
but in a case falling within subsection (1)(a) above, the court shall not declare the recognizance to be forfeited except by order made on complaint." ").

The noble and learned Lord said: My Lords, this clause seeks to strengthen the use of sureties in bail cases. A surety is a person who undertakes to hand over an agreed sum to the court if a bailed defendant fails to attend a court hearing. The new measure gives the magistrates' courts a new power to declare a recognizance—that is, the agreed sum—to be forfeited immediately and automatically where a defendant fails to appear at a court hearing. The new clause deals only with the procedure in the magistrates' courts only because it is only those courts to which the existing provisions apply. Forfeiture of a surety's recognizance in other courts is dealt with by rules of court, which may be amended by subordinate legislation.

The aim of this measure is to make sureties take their responsibilities more seriously. In too many cases, delay is caused by adjournments due to the non-appearance of the defendant. Stricter enforcement is needed to ensure that defendants who are released on bail surrender to the custody of the court at the next hearing.

Sureties are an important part of the bail process. The court may release a defendant on bail subject to providing a surety in cases where it considers that the defendant may not otherwise answer to bail. The particular advantage of the use of a surety, of course, is that that person can be with the defendant between hearings ready to remind him that it is in the best interest of the defendant, and indeed of the surety, for the defendant to attend court. In addition, where despite the surety's best efforts it seems that the defendant is intending to abscond, the surety is obliged to contact the police. The surety will generally be a friend or relative, but principally someone with influence over the defendant, who will promise to pay a sum to the court in the event that the defendant fails to appear at his next court hearing. This is a heavy responsibility and the surety should be certain that he or she would be able to ensure the defendant's appearance before making such an undertaking.

At present, where a defendant fails to answer to bail the court must first consider the extent to which the surety was at fault before deciding whether the sum should be forfeited and whether the person bound should pay the whole sum or only part of it. In some cases we believe that this approach may encourage the surety to enter into this contract recklessly, perhaps in the belief that he will easily be able to persuade the court that he did all that he could and that his money is never in danger.

The new measure which we are proposing will scotch that mistaken belief and send a strong signal to prospective sureties about the seriousness of the undertaking and the consequences of failing to keep to their side of the bargain. On the non-appearance of the defendant, the court will immediately declare automatic forfeiture of the sum. Notice of the forfeiture will then be sent to the surety together with a summons to attend court for the purpose of showing why the sum should not be paid. The court will then make a decision whether to order payment of the sum in whole or in part or whether to remit it to the surety. If the surety fails to answer the summons, the court may proceed in his or her absence provided that it is satisfied that the summons has been correctly served. This will enable the collection process to begin at an earlier stage than at present.

Under the new system, sureties will still have the opportunity to explain why they were unable to keep their side of the contract and the court retains the discretion to decide whether the sum should in fact be paid, in the light of the particular circumstances. But the important difference is that the onus for establishing lack of culpability is shifted fairly and squarely onto the surety. The fact that the declaration of forfeiture is automatic upon the defendant's failure to appear creates a much stronger link between the defendant's absconding and the surety losing his money. For this reason the surety will take his responsibilities more seriously and ensure that the defendant appears in more cases, thereby reducing adjournments and delay. I beg to move.

Lord Henley

My Lords, I speak to this amendment and the subsequent amendment that the noble Lord will be moving shortly. I speak not of the substance of the two amendments but to thank the noble Lord, Lord Williams of Mostyn, for writing to me on the 26th of March about these amendments and a number of other government amendments and offering some explanation as to what they are about. This is the first opportunity I have had to thank him for that.

Having listened to the noble and learned Lord and having read the letter of the noble Lord, Lord Williams, at first glance we entirely accept these two amendments. It might be, however, that my honourable and right honourable friends in another place, on looking at the amendments more closely, will have other concerns which they may wish to come back to when the Bill proceeds through their House. At this stage, so far as we can see, we would accept the purpose behind this new clause and have no objection to it.

Lord Thomas of Gresford

My Lords, it frequently happens that the sureties do appear and it is the defendant who is missing. This clause is so drafted that the court must first of all declare a recognizance to be forfeited and then issue a summons to each person bound by the recognizance as surety requiring him to appear. If he is already there, the provision that a summons must be issued to him is unnecessary. I would respectfully suggest that the Minister could look at that wording again.

Lord Falconer of Thoroton

My Lords, I am grateful for the qualified welcome that the noble Lord, Lord Henley, has given to this amendment and the next one. Regarding the point made by the noble Lord, Lord Thomas of Gresford, I will take note of what he says about whether there is a need for a summons if the surety is there.

The format of the clause is that once there is a non-appearance by the defendant then the recognizance is automatically forfeit. That is what happens at that stage. The next stage is for the summons to be issued so that he can have an opportunity at a later stage to come and say whether there is any good reason why it should not remain forfeit. It is a two-stage process. The first stage is intended to underline that that happens immediately with an opportunity at a subsequent date to come and say why he should be relieved from his responsibilities. Subject to that, I beg to move.

Lord Thomas of Gresford

My Lords, I do not think that the noble and learned Lord has followed what I said. New Section 1A(b) refers to issuing. a summons directed to each person bound by the recognizance as surety". That may of course be a person bound in his own recognizance. But sureties are normally independent people who frequently are there. They simply tell the court that they have no idea where the defendant is; they have done their best; but that is it. It seems excessive that they should then be summonsed to appear to give an explanation at a later date and to be put to all the expense and trouble of such an appearance. That is my point.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 39: After Clause 48, insert the following new clause—


(" . In subsection (1) of section 25 of the 1994 Act (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences), for the words "shall not be granted hail in those proceedings" there shall be substituted the words "shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it".").

The noble and learned Lord said: My Lords, this amendment will restore to the police and to the courts their rightful discretion in relation to the granting of bail in certain cases, a discretion which was removed by Section 25 of the Criminal Justice and Public Order Act 1994.

Section 25 of the 1994 Act prohibits the grant of bail to a person charged with or convicted of murder, attempted murder, manslaughter, rape or attempted rape if he has previously been convicted in the United Kingdom of any such offence and was, in the case of manslaughter, sentenced to imprisonment or, in the case of a child, detention. This means that, regardless of the particular circumstances of the case, the police and the courts are prevented by law from considering whether a person in those circumstances should be released on bail. The new clause amends Section 25 so that, instead of a complete ban on the grant of bail in those circumstances, there is in effect a rebuttable presumption that bail should not be granted in such cases.

The offences concerned here are very serious and the fact that a person charged with or convicted of one of those offences has previously been convicted of any such offence cannot and should not be ignored by those who have to consider whether that individual should be placed in custody or whether he should be released on bail. But to remove the ability of the police and the courts to make that decision is not in the interests of justice. It cannot be right to fetter the judicial discretion of the court in this way. It is possible, although I would suggest most unlikely, that there may be very exceptional circumstances where a release on bail in such cases might be the more appropriate option. The police and the courts should not be denied a statutory discretion to enable them to take account of those circumstances where appropriate.

In providing for such discretion, this amendment does not of course mean that defendants with previous convictions for these very serious offences will now be released on bail. As I have said, given the very serious nature of the offences and the associated risk to the public, this is highly unlikely to be the case. It was certainly not the case before the introduction of Section 25, which is one of the reasons why, when in Opposition, we argued that that provision was unnecessary. Indeed I recall that, during the passage of the Bill that became the 1994 Act, when we pressed the then government to give examples of cases which demonstrated the need for such an extreme provision, they had a very difficult time of it. They were unable to cite a single case where such a defendant had been granted bail, let alone an example of such a bailed defendant committing an offence while on hail, thereby casting doubt on the bail decision. The fact is that, as with any remand decision, the court will have to consider, in accordance with the provisions of the Bail Act 1976, whether the person before the court would, if released on bail, abscond, commit an offence or interfere with the course of justice. In reaching that decision, they must have regard, among other matters, to the nature and seriousness of the offence and to the defendant's antecedents.

There are also existing safeguards to insure against any unacceptable risk to the public as a result of the judicial discretion which we are proposing to restore. The Bail (Amendment) Act 1993, which applies to cases involving any offence attracting a maximum penalty of five years' imprisonment or more, gives the prosecution a right of appeal to a Crown Court judge against a magistrates' court decision to grant bail. The defendant must be kept in custody pending the outcome of the appeal. In addition, the Bail Act indicates that if a defendant who has been charged with any such offence is granted bail and representations have been made that he should be denied bail, the court must state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.

When in Opposition we argued against the introduction of Section 25 in 1994, but we were mindful then and remain aware of public concern about some bail decisions. While it is important that the bail decision remains with those who are in possession of the full facts of the particular case, the public must have confidence in the bail process as a whole. Section 25 as amended will ensure that where the police or the courts are dealing with cases of what might well be repeat homicide or rape, the presumption will be that the defendant is taken into custody. We consider that, in the exceptional cases at which Section 25 is targeted, it is right to reverse the general presumption in favour of bail and shift the onus onto the defence to provide good and sufficient reason why bail should not be denied. We do not envisage that this new burden on the defence will be easily overcome in most cases, but to rule out the possibility of granting bail cannot be justified.

We see this new provision as allowing some flexibility to prevent injustice, while ensuring that the protection of the public remains the primary concern and providing a tough additional safeguard against bad bail decisions in these particularly serious circumstances. I beg to move.

8.45 p.m.

Lord Thomas of Gresford

My Lords, I feel like a spectator on the road to Damascus. I reached for my very dark glasses because light appears to have dawned upon the Government in two specific ways. First, they are going back to a position that they adopted in Opposition; and I cannot remember that happening before in all the eight or nine days that we have spent on this Bill. Secondly, I could hardly believe my ears when I heard the noble and learned Lord talk about flexibility to prevent injustice: that it cannot be right to fetter the discretion of the court. The whole thrust of the Bill so far has been to remove discretion from the courts and to seek to impose limitations upon their powers.

I hope that this is a genuine conversion and that we see Ministers turning again towards what I regard as the true light of justice and flexibility. I support the amendment.

Baroness Mallalieu

My Lords, I congratulate the noble and learned Lord on bringing forward the amendment and thank him. Hard laws can be bad laws. I am grateful to the Government for taking the courageous view that it is right to reintroduce this discretion.

On Question, amendment agreed to.

[Amendment No. 40 not moved.]

Baroness Masham of Ilton moved Amendment No. 41: After Clause 55, insert the following new clause—

("Young female offenders: detention


An offender who is convicted of any offence punishable with detention and who is a girl under the age of 18 shall he kept separate from adults and shall he 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 he in the best interests of the offender to he held with adults for a temporary period.").

The noble Baroness said: My Lords, I return to your Lordships about young girls in prison. I hope that the third attempt will be lucky.

At Report stage, the amendment came very late and some of the loyal supporters had had to go home. I was grateful to the noble Baroness, Lady Mallalieu, who stayed to support and to speak to the amendment, especially as she was still recovering from 'flu, the noble Baroness, Lady Gould, who feels that it is an important matter, and the noble Lord, Lord Judd, who has supported it throughout.

The amendment 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 entered a reservation. I do not know why. It requires that juveniles and adults would be held separately.

The separation of the under-18s from the adults in women's gaols since the Howard League's report amounts merely to providing separate sleeping accommodation. Daily activities are still shared with adults except in the minority of cases. While these wings operate under the young offenders institution rules, in practice this has made no difference to the mixed regime culture and environment which the girls continue to experience. The YOI rules are virtually the same as the prison rules.

When I chaired the Howard League inquiry into young girls in prison, I went into it with an open mind. Having spoken to many governors, two only last week, and prison chaplains, I have not found one who said that the under-l7 girls should be in adult prisons.

Young males under 21 are held separately in young offender institutions. They do not go to adult prisons. Why then discriminate against girls? There are far fewer of them. Adolescent girls need skilled people to help them out of a very difficult period in their lives. Are girls pushed into prison and doomed to a life of crime, being institutionalised at the ages of 15 and 16 because they are a problem not worth bothering about?

I wonder how many of your Lordships agree with the Howard League and the Chief Inspector of Prisons that there are hardly any circumstances in which prison is a better option for a child than a secure local authority unit. If there should be specialised circumstances such as a young mother wanting to have her baby with her, or any special treatment, the amendment allows for this.

I am most concerned about 15 year-old and 16 year-old girls who are of statutory school age. When the Howard League visited a women's prison last week which has created a separate unit for the under 21s, it was found that maths, English, first aid and crafts were available from 9.30 to 11 a.m. and there was nothing specially available for young people under school leaving age, for those with special needs, or for those wanting to take exams such as GCSEs or NVQs.

It is a good idea that the Government are trying to get young people who have left school into training and work. Is this short period of education in prison going to fit these girls into a working life? Also, they are locked up in their cells by 5 or 5.30 p.m. until 8 a.m. on most days. What hope are they going to have when they leave prison? Some of them may be returning to school and, having been in an adult prison, what is that going to be like for them? In a secure unit a full day of education is provided. The national curriculum is available for children under school leaving age. Special needs teaching is available for those who need it. Older children can do A-levels if suitable. At the end of the school day various individual and group therapy work is provided, which covers offending behaviour, drug and alcohol abuse, anger management, bereavement counselling, and sexual and physical abuse counselling; and special help is brought in if needed for individuals.

The environment of a secure unit lacks the austerity, aggression and drug culture which exists in most of the prisons. Secure units have a wealth of experience of mixing children who are there on welfare grounds with children of different ages who have come to the unit via the criminal justice system. Most units encompass flexible usage and have the facilities to separate groups of children into living accommodation according to their suitability and compatibility.

There are some secure units which do not provide the high level of care that they should, but they rarely drop to the level of regimes provided in prison. If they do, the social services inspectorate has the power to withdraw the unit's licence to operate—a sanction which is not available for prisons. The chances are that the young girls will be nearer to their homes in a regional secure unit.

Last Wednesday, during a debate on prisons, concern was voiced about the increase in women going to prison; the figure seems to be growing all the time. Your Lordships will now have to decide whether prison is the best place for under-17 adolescent girls, who are the most complex, difficult and vulnerable group in the criminal justice system. I beg to move.

Baroness Mallalieu

My Lords, I wish again to support the noble Baroness, who, as I think all those who have listened to this debate will know—it has now taken place on three separate occasions—has championed a particular group who, frankly, are a blot on our penal system. Indeed, so long as the situation continues whereby we send these young girls to adult prisons, they will continue, I am bound to say, to be a blot on our Government, who have pledged themselves to equal treatment for men and women, boys and girls.

I say that, fully appreciating that the noble Lord, Lord Williams of Mostyn, both understands and sympathises with my remarks. In what I am about to say, in no way do I minimise the difficulties which he and the Home Office face in making suitable provision for these girls. I hope that my remarks are realistic. It seemed clear from earlier debates that there was no immediate prospect of this wholly unsatisfactory situation being resolved, and I very much appreciated the noble Lord's offer on the previous occasion to return to this House in due course and report progress. I hope that he may be able to go a little further than that tonight. If he cannot, perhaps I may simply say this. There must be real concern that, in the meantime, so long as this deplorable state of affairs continues, the girls who are detained in this way should at the very least not receive not less favourable treatment than their male contemporaries, at least in relation to education and training.

I hope that, at the very least, this evening the noble Lord may be able to go further than he has gone on previous occasions and give us some assurance that there will be an immediate improvement in relation to those matters. The costs, given the numbers of girls involved, cannot be that great, and it is surely the very least that we should be doing.

Viscount Tenby

My Lords, I rise to support the amendment in the name of my noble friend Lady Masham, if I may so describe her, and others. We surely all agree that to deny young girls in prison the facilities available to boys, as the noble Baroness, Lady Mallalieu, has just said—namely, accommodation separate from adults—is bizarre in the extreme. I am not persuaded by arguments about the usefulness of "mother figures" and by phrases like that. Of course these girls should not be in adult prisons at all. The fact that at any one time only a comparative few are involved does not in any way mitigate a sense of disbelief that such a state of affairs should exist in this country.

No one doubts the commitment and compassion of the noble Lord the Minister in these and related matters. Indeed, the care and detail with which, on Report, he produced the figures relating to the situation as it was as recently as the 10th of this month, is an indication of that concern. However, we have the extraordinary anomaly that, while girls detained under Section 53 are, for the most part, housed in secure local accommodation, 13 out of 17 in the 15 to 17 age group—those charged with lesser offences—are in prison.

The noble Lord, faced as he is, I appreciate, with an inherited situation, with little money and the prospect of even less likelihood of additional funds, seeks to put a gloss on matters, extolling the virtues of flexibility and even going so far as to say, in the debate on 19th March, not all local authority secure units provide as good a level of care as is desirable"—[Official Report, 19/3/98; col. 913.] Be that as it may, they will almost inevitably be nearer a prisoner's friendly family and support probation service, and will additionally have greater educational resources—probably almost twice as many as will be available within a senior establishment. In passing, I might add that I found the noble Lord's remark very revealing and a justification for the remarks I made on Second Reading about the need for a national inspectorate and national standards so far as local secure accommodation is concerned.

All the arguments have already been advanced by this stage of the Bill. We understand the problems the Government have in this regard, but we believe that, if humanly possible, young females should be kept in local secure accommodation and, where that is not possible, should be housed in separate accommodation in adult prisons. Like other speakers tonight, I very much hope that the Minister will be able to give us some assurances.

9 p.m.

Lord Goodhart

My Lords, the noble Baroness, Lady Masham, has been most persistent in bringing forward the issue covered by this amendment which now comes before your Lordships for the third time. Her persistence is fully justified. She has been most persuasive; she has certainly persuaded me that we should not put 16 and 17 year-old girls in custody together with more mature women, many of whom will be experienced in crime and addicted to drugs.

It is a fundamental principle of several international human rights covenants that juvenile prisoners should not be detained together with adults. That principle has never been adequately recognised by British governments, of whatever complexion. I shall be very sorry if the present Government do not take the opportunity this evening to take a step in the right direction by accepting the noble Baroness's amendment.

Lord Judd

My Lords, I join those who have congratulated the noble Baroness on her firmness and resolve in staying with this amendment. I am sorry that it has not been possible for me to be present for more of the deliberations today because the issues raised in the Bill profoundly interest me. I should explain to the House that, paradoxically, I have today been participating, in the context of my work outside the House, in an international seminar in Stockholm on ethics in governments and issues of human rights. I cannot stress how much the world is looking, with hope, to the regeneration of enlightenment under the new Government in this country.

What saddens me about the need for this amendment is that, knowing of my noble friend's deep personal commitment, I believe that this is precisely the kind of measure that the Government themselves should have advocated. Of course, I understand the difficulties and the expense. But it is not just a matter of rights for the girls, although I do not in any way dissent from what my noble friend Lady Mallalieu and others have said about that. What is so sad about the inability of the Government to respond on this point is the future cost to society of not implementing this measure. We all know that, in the environment that surrounds a prison, with all its inevitable connotations, the chances of successful rehabilitation are diminished, and we shall therefore face future costs as young people who could have had a chance to be rehabilitated and play a positive part in society have less chance to do so.

Like my noble friend Lady Mallalieu and others, I appreciate the difficulties in which my noble friend the Minister must find himself on this matter. I hope that he will be able to say something to reassure the House on the issue of education, and so on, for these girls. Whatever he is able to say about that will be no substitute for the Government's recognising that, whatever the cost, to have responded positively to this amendment by default—in the sense they did not put the proposition forward themselves—will be a negative step not only at present for the girls who are there but for the future consequences for society. I hope that, even at the 11th hour, the Minister will be able to find it in his heart, on behalf of the Government, to accept the very strong case repeatedly argued by the noble Baroness.

Lord Hooson

My Lords, I should like to remind the noble Lord, Lord Williams of Mostyn, of the Answer he gave to a Parliamentary Question of mine on this subject in January of this year when he indicated his view that the present position was unacceptable. I have known the noble Lord long enough to know that he meant every word he said then. I believe that what the House is looking for this evening is some indication of progress from the Government, who have inherited a difficult situation. It may be impossible to solve this problem in an acceptable way in the immediate future, but surely, at the very least, those at the lower end of the scale, the 15 and 16 year-olds, should not be subjected to this treatment in the future.

Lord Hylton

My Lords, there is little to add to what has been said in support of this amendment. I simply question whether the words, or in a separate part of the institution also housing adults", are sufficiently strong. Perhaps the Minister can say whether such a provision would avoid the day-time sharing of facilities and regimes, which is what we so much object to in the present situation.

Lord Henley

My Lords, from these Benches I offer our support for the amendment proposed by the noble Baroness, Lady Masham. Noble Lords opposite will be aware that at Report stage, both from these Benches and the Government Back Benches, in particular by the noble Baroness, Lady Hilton, considerable concern was expressed about the idea that the Home Secretary was taking powers to send 10 and 11 year-olds to prison in future. For various procedural reasons, the amendment to deal with that matter did not find favour with the House. I believe that that is a matter to which my right honourable and honourable friends in another place will wish to return when the Bill goes to another place.

I believe that it would be right for this House to send the appropriate messages to the other place and that the best way of doing that is by offering support to the noble Baroness, Lady Masham, for her amendment. I believe she is quite right in saying that it is inappropriate that young girls can be sent to prison because of the lack of suitable local authority secure accommodation and that the Government should make it clear that such girls should be detained in separate institutions. For those reasons, we on these Benches offer our support to the noble Baroness.

Lord Williams of Mostyn

My Lords. I have great sympathy with the overall aim of the amendment and have never pretended differently. I believe that we all share a common goal. The question is what I can offer to your Lordships this evening, bearing in mind the legitimate and courteous pressure that has come from all sides. I should mention, not least, a very well argued letter from the noble Baroness, Lady Gould, which I received this afternoon.

What we want to get to with the placement of the youngsters spoken about is to meet their needs, to address offending and to make the most effective use of the juvenile secure estate. That is where we want to go. We are not there yet. It seems to me that, rather than for me to recite what I have already cited on a number of earlier occasions either in debate or in answer to questions or in private conversation and letters, your Lordships want to know about two things: where we are getting to on separation and where we are getting to on educational provision.

We have now agreed plans for a further two physically separate units. One is at Holloway, with 40 places, and another is at New Hall near Wakefield, with 96 places. Those two establishments at the moment hold about 25 of the 90 or so sentenced juveniles—girls under the age of 18. So that will be 40 physically separate places at Holloway and 96 at New Hall. The unit at New Hall is scheduled to open in April. In Holloway there are difficulties because of the nature of the prison itself. We hope that the separate unit at Holloway will be open by the autumn.

Both of those establishments set up multi-disciplinary working groups to consider in detail the sort of regime to which a number of your Lordships have referred; that is, what can best meet the needs of the young offenders in these units. That includes staffing, the selection and training of staff, education and training, offending behaviour programmes, and what level, not least, of psychological support these young women need while being detained. New Hall already runs a modular young offender course. Eight of the 10 modules have been accredited to national standards. The remaining modules are to be submitted as soon as is practicable.

There are fewer than 20 girls detained under Section 53 powers. All of those under 15 are in local authority secure accommodation and most of the rest are. There are very few in Prison Service accommodation: some are in mother and baby units, which have their own difficulties in a small unit, or because they were severely disruptive, having already been placed in local authority secure accommodation. It is a fact that not all local authority secure accommodation can deal with all young girls of this age group.

From 1st April £3 million will be available to develop the kind of regimes that the Prison Service aspires to deliver: addressing offending behaviour and providing a full constructive day for inmates. I take the noble Baroness's point that one needs a full, demanding and stretching day. We are developing a framework within the Prison Service that provides the care and supervision that these juveniles need. We want to try to keep them close to home, with access to probation and other services in their home areas. Governors have been asked to submit plans on how they intend to spread the money which is available from tomorrow. It is likely that the plans will include better staff training and deployment as well as improved education and training facilities for young offenders. I know that the noble Baronesses, Lady Kennedy, Lady Mallalieu and Lady Gould, have all contacted me to express their concern about the need for improved education.

Juveniles under 17 have a minimum of 15 hours academic education per week, including English, mathematics, life skills relevant to their age and information technology. They have five hours a week physical education. The Prison Service is working at adapting the curriculum to the needs of juveniles to take into account that their academic achievement is generally of a low level, that they have a generally short attention span and that frequently, as the noble Baroness, Lady Masham, has said on earlier occasions, they have very poor self-esteem. We are planning for an individual plan for each juvenile based on a thorough assessment of individual need. Education departments in establishments liaise with schools or training establishments to facilitate continuing education and prisoners eligible to take examinations are enabled to do so.

The noble Lord, Lord Hylton, asked whether there is a perfect physical separation in these institutions. I cannot say that that is true on every occasion. Indeed, I recognise the deficiencies to which he referred.

I hope that I have been able to provide more detail. It will not be sufficient detail to satisfy the concerns that your Lordships have expressed. This is not my concern alone. It is a government concern. The Home Secretary is particularly engaged in this matter. I have been able to give your Lordships rather more full detail than I was able to give on the last occasion. I repeat my earlier commitment, which I recognise is intended to be a discipline upon us in government, that I am happy to report hack to your Lordships, bearing in mind the strictures from which I do not dissent, when we introduce the new detention and training order, which will be in the summer of next year.

I do not claim to have satisfied all your Lordships' concerns. I have not satisfied the concerns that I or my colleagues in government have had. I have set out in as much detail as I could obtain the present circumstances and the way in which we hope to progress. For my own part, I am most grateful for the tone in which everyone has directed their criticisms and complaints because I do not believe that they are unreasonably based.

Baroness Masham of Ilton

My Lords, I thank all noble Lords who have supported this amendment. I also thank those who have worked behind the scenes. The Minister knows who they are. I thank the noble Lord for his charm and sincerity over this matter.

I am very concerned about something he said tonight. I believe that there has been a step backwards and I shall say now what I believe it to be. Having these specialised units in Holloway and New Hall, particularly in Holloway, is a retrograde step because at the moment the governor of Holloway will not have girls of 15 and 16 years of age there. They are not even allowed to get out of the van. They are sent on to the young offenders' unit at Bullwood Hall. The governor told us that when we visited Holloway a short time ago. One must think of the psychological aspects for a moment for the parents having a 15 year-old in Holloway. They will have to face up to the fact that a 15 or 16 year-old is in a very secure adult prison.

The decision—it may not have been taken by this Government—to have the units there presents a very worrying situation. I visited New Hall. There is another very worrying situation there. I suppose it is because of the lack of funds that they are lacking in probation officers. They had only 50 per cent. of the probation officers required. The ones that I met were very tired, were exhausted and very worried. It is a busy prison with many disturbed women there. There is a great deal of bullying and drug abuse. It is not a place in which to put young girls.

Before I decide what to do perhaps I may ask the Minister this question. Will he say, "We shall put the 15 and 16 year-olds in a secure unit unless there are very special circumstances"? That would be a great relief. One would then know that they are receiving education and that they would not be in an adult prison. Two weeks ago there were only 30 of them, but when one considers the 17 year-olds, there were 88 of them. There were only 30 young girls. I am sure that the Government can find a way of accommodating them outside a large adult prison.

Lord Williams of Mostyn

My Lords, a number of your Lordships want me to say things which I cannot conscientiously do unless I am able to guarantee delivery. If there are so few 15 and 16 year-olds, as the noble Baroness said—and that is right—I still have to accommodate the point made by the noble Lord, Lord Hooson, about keeping young girls in appropriate units close to home. I am sorry to say this, but since the numbers are so small I am not going to be able to deliver those commitments.

All I can say is that I recognise the present circumstances are not satisfactory. I have demonstrated what we have done so far. I have given more detail since our last meeting together. Standing here I cannot give guarantees that I am not certain that I shall be able to deliver.

The noble Baroness made specific reference to Holloway, New Hall and the probation service. If she would give me more detail, I shall have it investigated immediately; but I cannot give responses to specific requests without knowing that there is ample resource so that we can deliver on it—not least on the question that some of the girls are serving quite small sentences. I recognise that for young people time travels in a different way than for those of us who are older. I can only repeat what I have already said. We wish to work towards an ending of this situation. I am wilfully putting myself under the yoke—I did it deliberately last time—of coming back to report on progress. I know that there is no one in this House who will not keep me to that.

Baroness Masham of Ilton

My Lords, I thank the Minister for his reply, but because I have seen some of these girls and because some of them are first-time offenders, I feel that I must seek to divide the House on this matter so that noble Lords may vote according to their consciences.

9.19 p.m.

On Question, Whether the said amendment (No. 41) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 69.

Division No. 3
Ackner, L. Lucas of Chilworth, L.
Allenby of Megiddo, V. Lyell, L.
Anelay of St. Johns, B. Mackay of Ardbrecknish, L.
Annaly, L. McNally, L.
Astor of Hever, L. Maddock, B.
Blatch, B. Mar and Kellie, E.
Byford, B. Masham of Ilton, B. [Teller.]
Carnegy of Lour, B. Munster, E.
Castle of Blackburn, B. Northesk, E.
Chesham, L. Palmer, L.
Darcy de Knayth, B. Pearson of Rannoch, L.
De Ramsey, L. Renton, L.
Dholakia, L. Renwick, L.
Dixon-Smith, L. Roberts of Conwy, L.
Elliott of Morpeth, L. Rodgers of Quarry Bank, L
Flather, B. Seccombe, B.
Fookes, B. Stodart of Leaston, L.
Goodhart, L. Swinfen, L.
Hampton, L. Taverne, L.
Harmar-Nicholls, L. Tenby, V. [Teller.]
Henley, L. Thomas of Gresford, L.
HolmPatrick, L. Thomas of Gwydir, L.
Hooson, L. Tordoff, L.
Hylton, L. Wharton, B.
Kinloss, Ly. Wigoder, L.
Archer of Sandwell, L. Islwyn, L.
Berkeley, L. Janner of Braunstone, L.
Blackstone, B. Jay of Paddington, B.
Brooke of Alverthorpe, L. Lofthouse of Pontefract, L.
Brooks of Tremorfa, L. McIntosh of Haringey, L. [Teller.]
Burlison, L. Merlyn-Rees, L.
Carmichael of Kelvingrove, L. Molloy, L.
Carter, L. [Teller.] Monkswell, L.
Chandos, V. Montague of Oxford, L.
Clinton-Davis, L. Murray of Epping Forest, L.
Cocks of Hartcliffe, L. Nicol, B.
Davies of Oldham, L. Paul, L.
Dixon, L. Pitkeathley, B.
Dormand of Easington, L. Ponsonby of Shulbrede, L.
Evans of Parkside, L. Prys-Davies, L.
Falconer of Thoroton, L. Ramsay of Cartvale, B.
Farrington of Ribbleton, B. Randall of St. Budeaux, L.
Fitt, L. Rendell of Babergh, B.
Gallacher, L. Renwick of Clifton, L.
Gilbert, L. Richard, L. [Lord Privy Seat.]
Gordon of Strathblane, L. Sewel, L.
Graham of Edmonton, L. Shepherd, L.
Shore of Stepney, L.
Grenfell, L. Simon, V.
Hardie, L. Simon of Highbury, L.
Hardy of Wath, L. Smith of Gilmorehill, B.
Haskel, L. Symons of Vernham Dean, B.
Hayman, B. Taylor of Blackburn, L.
Hilton of Eggardon, B. Thomas of Macclesfield, L.
Hollis of Heigham, B. Varley, L.
Howell. L. Watson of Invergowrie, L.
Howie of Troon, L. Whitty, L.
Hoyle, L. Williams of Mostyn, L.
Hughes of Woodside, L. Winston, L.
Hunt of Kings Heath. L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.27 p.m.

Clause 56 [Reprimands and warnings]:

Lord Falconer of Thoroton

moved Amendment No. 42: Page 44, line 38, leave out from ("been") to ("and") in line 40 and insert ("convicted of an offence"). The noble and learned Lord said: My Lords, this amendment is designed to clarify that where a young person has previously been convicted of an offence and goes on to commit a further offence, he or she may not in an circumstances receive a reprimand or warning. That has always been the position of the Government as set out originally in the consultation paper Tackling Youth Crime published last September. As currently drafted, subsection (1)(d) would prevent a young person from receiving a reprimand or warning not only where he or she had a prior conviction but also in a range of other situations where a prosecution had been initiated but had resulted in a technical outcome that fell short of conviction but was not formally an acquittal or discontinuance. These include, for example, situations where the case was withdrawn by the prosecution in court before a plea was entered, cases where the prosecution was stayed for abuse of process and cases where the young person was jointly charged with an adult and the examining justices considered that there was no case to answer and discharged the defendants.

The Government do not believe that it is appropriate that there should be an automatic prohibition on receiving a warning or reprimand for an offence following an earlier prosecution which resulted in one of these technical outcomes, which in their nature are far closer to acquittal than conviction. The amendment is designed to restrict the scope of the automatic statutory prohibition in subsection (1)(d) to circumstances where a young person has a prior conviction.

There is, however, a further category of cases involving a prior prosecution where the Government believe that a warning or reprimand will usually be inappropriate. That category includes cases where the young person has been charged with an offence and the proceedings are still ongoing and the young person commits a further offence while on bail. In those circumstances, the use of a warning or reprimand could undermine one of the basic principles of the final warning scheme—that the response to offending by young people should be progressive. We therefore intend to make it clear in guidance that further offences committed by a young person on bail following charge should not in the vast majority of cases receive a reprimand or warning. I beg to move.

9.30 p.m.

Lord Goodhart

My Lords, this is a small step in the right direction. One has to look on it as a correction of a defect in the drafting of the Bill rather than a movement of principle in the right direction. Obviously we will not oppose it, but we continue to be sorry that the Government have seen fit to impose the degree of rigidity which they have done upon the power to issue warnings.

On Question, amendment agreed to.

Baroness Flather moved Amendment No. 43: After Clause 72, insert the following new clause—


(".—(1) In relation to a prosecution for any offence it shall be the duty of the prosecution to bring to the attention of the court any information or material which contains evidence that the offence was racially aggravated. (2) Section 24 above applies for the purposes of this section as it applies for the purposes of sections 25 to 27 and 72 above.").

The noble Baroness said: My Lords, the Bill seeks to address the legitimate concerns of ethnic minorities and, I like to think, most right-thinking people in this country. There is far more racial violence than we should be willing to accept in a civilised country. In Clauses 25 to 27 the Government have sought to create new offences relating to racial violence and racial harassment, and with a catch-all clause, Clause 72, to ensure that everything else is covered.

I have never been certain that special offences needed to be created. I thought that a catch-all clause might have been sufficient, but having put this clause on the face of the Bill, there is an aspect which has not been addressed properly; that is, that a considerable amount of behind-the-scenes activity, commonly known as plea bargaining, takes place before cases come before the courts.

A defendant is often persuaded to plead guilty to a lesser offence, in which case the racial element of that offence might not then be produced before the courts. I am deeply worried that if that takes place, the very purpose of Clauses 25 to 27 and 72 will be lost. Sentences taking into account the element of aggravation will not be passed on the defendant, as the evidence of the racial element will not be produced before the courts.

An inquiry is going on into the Stephen Lawrence case at the moment. The biggest problem in that case is the way that not just the Lawrence family but everyone else from the black and Asian communities feel grossly aggrieved that the prosecution did not do all that it could have done. That is the feeling that the community has been left with. Over time, it is built up to such an extent that an inquiry has been set up to investigate the procedure followed by the prosecution. I contend that this is a weak link in the wonderful chain proposed by the Government. I fear that the link may prove too weak for the other clauses to be effective and provide the protection which the Bill purports to give the ethnic minorities.

It would be greatly disheartening if the Bill led ethnic minorities to believe that the Government had at last grasped the nettle and would pursue that unpleasant aspect of our society with full commitment, only then to find that few prosecutions came before the courts. They may then come to the conclusion that there is only a small element of racial harassment, racial crimes and racial violence. For that reason, I have tabled the amendment which I hope the Government will accept as an important part of the Bill. I beg to move.

Lord Dholakia

My Lords, I support the noble Baroness. However, perhaps I might deviate for one moment. When Amendment No. 9 was moved I was not in your Lordships' House. I was celebrating the success of Amendment No. I and in doing so I missed the opportunity to thank the noble Lord, Lord Williams of Mostyn, for accepting my amendment on Report relating to racially aggravated criminal damage.

I support the noble Baroness because there is a weak link and a missing piece of the jigsaw in the legislation on racial attacks and harassment. I had hoped that after discussing the matter on Report the Minister would have had time to consider it and return with the intention of accepting this important amendment.

Perhaps I might say why the amendment is important. One of the most difficult aspects of racial attacks and harassment is in their definition. They are based on the perception of the victims and the perception of investigating officers. But when in the ethnic minority community there is an adversarial relationship between the police and the black community one will find that in many cases some of the important aspects of the investigation are forgotten.

The noble Baroness is right in citing the case of Stephen Lawrence. Anyone studying the inquiry and the evidence that has been produced cannot help but be moved by the plight of the parents who repeatedly spoke of the extent of what they believe to be the weakness in the police investigation. We are putting a duty on the Crown Prosecution Service to ensure that it brings out racial motivation in the cases which are being handled.

Why is it important to bring that out? The noble and learned Lord the Solicitor-General accepted that according to a rough survey which was carried out, in 18 per cent. to 20 per cent. of cases before the courts, the Crown Prosecution Service failed to bring out the element of racial motivation. If that is not brought out, there is a problem. No amount of sentencing guidelines to the magistrates or judges will help in terms of sentencing those people because the racially aggravating feature has not been brought out. That was referred to some time ago by the Home Affairs Select Committee.

But there is another factor. Agents, as they are commonly called, are employed by the Crown Prosecution Service to be responsible for the conduct of cases in a court. Those agents are not trained. I have sat on case after case where I have known that there has been racial motivation and yet no reference has been made to that in the court.

That destroys the confidence of the minority in the system established by the state because those people know what has happened; they perceive that a racial motivation exists and yet that is not brought out. Therefore, it is right that such a duty should be imposed.

That is nothing new in terms of legislation. Let us consider the Race Relations Act. Under that Act, it is the duty of the Commission for Racial Equality to eliminate discrimination and promote equality. But it also places a duty on local authorities to do the same thing. That is what we seek with this amendment. Why cannot an obligation be placed upon the Crown Prosecution Service to bring out any racial factors in the court?

I give two examples of how good practice can help and how no reference to racial motivation can create a lot of damage. Some years ago a case came before the courts in which a Pakistani taxi driver was robbed of his takings and bundled into the river. Two people were convicted. The Crown Prosecution Service quite rightly raised racial motivation as an aggravating factor in that case. In sentencing, the judge made clear his abhorrence of the racial motivation on the part of the people who had robbed the taxi driver.

It was interesting that I received a telephone call from the family of the taxi driver who had been killed. They recognised that it is very difficult to accept the death of anybody but they felt that it was easier for them because the judge had understood what had happened in that case.

I take another case which arose in the court where I sit as a magistrate. A black person was beaten up by white people. Those people were brought before the court. And yet at no stage did the Crown Prosecution Service refer to the racial element present in the offence. The court then decided to bind over not only the perpetrators for the damage that they had caused to that individual but also the black person whom the court decided was responsible because he was there. The court decided that he too should be bound over. I have never heard of such a stupid way in which to deal with such an important issue.

What is it that the Government find unacceptable with this amendment? Throughout this legislation, they have shown sensitivity and concern in relation to how such matters should be handled. But when we seek to place a duty on the Crown Prosecution Service, that is rejected. I believe that the way to establish the confidence of the minority is not simply by way of the wheeling and dealing that goes on in terms of plea bargaining and the discontinuance of cases but positively so that all racial motivation is brought before the court which is to decide sentence. I support the amendment.

9.45 p.m.

Lord Hylton

My Lords, I have in the past advocated in this House much stronger measures to recruit people from the ethnic minorities into all branches of government service. I am delighted to say that the Brigade of Guards in which, once upon a time, I did National Service, is at last starting to do something effective in that direction. However, we are still in an interim situation and we know that in the police and the CPS there is still a considerable preponderance of white people. That is why the amendment so ably moved by the noble Baroness, Lady Flather, is necessary. I trust that the Government will feel able to accept it.

Lord Falconer of Thoroton

My Lords, I am grateful to the noble Baroness for returning to the issue. She has an estimable record in demanding that there be racially aggravated crimes. Indeed, Clause 72 in this Bill bears a striking resemblance to an amendment that the noble Baroness moved to the Criminal Justice and Public Order Bill 1994. Therefore, the noble Baroness speaks with special authority in relation to this matter. Equally, the noble Lord, Lord Dholakia, who moved an amendment on criminal damage with racial aggravation, which is now incorporated in the Bill, also speaks with special authority.

I do not believe that we have different aims. I believe that we are all aiming towards the same goal: namely, that there should be a racially aggravated crime and that it should be an aggravating matter in sentence; and, indeed, that such circumstances should, in every proper case, be brought before the court. I agree with all three speakers who have said that there is a missing link if such matters are not brought before the court.

However, I am sorry that I cannot agree to the terms of the amendment. I should like to explain briefly why that is. There will be cases where, although there is some evidence of a racial element to a crime, there will not be enough evidence to meet the racial aggravation test. There will also be cases where the evidence of a racial element will not be admissible, or where the evidence is uncorroborated and unreliable. In those circumstances, the prosecutor will, as he does in every case, have to use his discretion to judge whether it would be in the public interest to charge the racially aggravated offence, taking into account the likelihood of obtaining a conviction—or, in the kind of cases which I mentioned, an acquittal. That decision is guided by the Code for Crown Prosecutors. That same code already places a duty on the prosecution to bring a charge commensurate with the seriousness of the offence.

We cannot have special rules in relation to racially aggravated offences. There will also be cases where, during the course of the proceedings, it will become clear to the prosecution that the racially aggravated charge is unlikely to succeed. In those circumstances, it would be in the public interest for the prosecution to accept the guilty plea to the lesser charge, rather than pressing on—as he would be obliged to if any amendment of this sort were to be adopted—to a likely acquittal.

Having said that, perhaps I may assure the noble Baroness that we anticipate that it will be exceptional for such information not to be brought to the attention of the court, and only then for legally-supportable reasons. The CPS is acutely conscious of the importance of providing the court with all information of racial aggravation and has taken steps through the Racial Incidents Monitoring Scheme to monitor all cases where racial motivation is identified, either by the police at charge or by the CPS at review. We will be evaluating those provisions in due course. The CPS will continue to monitor closely the procedures for dealing with racial incidents, and to keep records in that respect. Moreover, as long as I am able, I intend to take a personal interest in that process.

As I said on Report, the creation of these new offences will focus the attention of the police and the CPS on the importance of gathering and assessing the evidence relating to the racial element. We want to send a strong message that racist crime is unacceptable but we also need to ensure that, so far as possible, these provisions are effective in practical terms. I hope that the noble Baroness, and the two noble Lords who spoke to the amendment, will accept that the Government are serious in their commitment to tackling racist crime and that they intend to ensure that that message is clear to everyone throughout the criminal justice system. I hope that the noble Baroness feels sufficiently reassured to withdraw her amendment.

Baroness Flather

My Lords, I thank the Minister for what he has said. I shall hold him to his promise to keep an eye on what is going on in the Crown Prosecution Service in this regard. I wish to mention a couple of matters which cause me concern. The Minister has referred to something which has also been mentioned to me in the past by members of the Crown Prosecution Service; namely, would you rather that someone got away with something, or would you rather that person was charged with a racially motivated crime? I fear that, in the hope of obtaining a conviction, the Crown Prosecution Service may prefer to fudge the racially motivated crime aspect and charge the defendant with another offence.

This is one of the reasons I have never supported the idea of special crimes with racial motivation as that creates a division between other crimes and specifically racially motivated crimes. In my opinion crimes are crimes and racial motivation can be part of any criminal incident. I hope that the noble and learned Lord the Solicitor-General and the Home Office Minister will both keep an eye on what happens in this respect and will at some stage produce a report on the functioning of these clauses, as I am not totally satisfied that they will achieve the end result that we all hope will and should be achieved. I shall not divide the House on this matter as it is not the appropriate time to do so, nor am I absolutely certain that this amendment is workable. Once again I am grateful to the Minister for at least considering it carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 74 [Extended sentences for sex and violent offenders]:

Lord Hardie

moved Amendment No. 44: Page 60, line 3, leave out from ("that") to ("the") and insert ("the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting"). The noble and learned Lord said: My Lords, in moving this amendment I wish to speak also to Amendments Nos. 45 to 63 inclusive, 80, 98 and 99. These amendments are technical amendments intended to improve the drafting of the clauses relating to extended sentences for Scotland. They bring the terms used into line with other relevant legislation, remove superfluous wording and clarify the effects of the provisions in relation to short-term and long-term prisoners. I should be happy to explain all or any of them in further detail to any of your Lordships who desire me to do so. I beg to move.

The Earl of Mar and Kellie

My Lords, I have one reservation which has arisen because Amendment No. 44 spells out more clearly what will happen. That reservation probably arises from a prediction as to how this provision will work. I see that the imposition of an extended sentence will be a judgment made at the time of sentence about the intentions of the offender with regard to reoffending after he or she has completed his or her imprisonment. I believe that extended sentences are not in fact mandatory. Therefore I wonder whether I am right that mistakes could be made either by predicting wrongly that the person will put the community in some danger or indeed by making a redundant order because the person proved to have no such intent whatsoever after he or she had left prison.

Lord Hardie

My Lords, let me explain. When a long-term prisoner is released from prison he is on licence until the end of his custodial sentence. In the case of a prisoner who has an extended sentence of four years or more, the intention is that the extension period of that sentence should start at the end of his custodial term. That is the point where he is no longer subject to parole or on parole licence following release.

The criteria in new Section 210(A)(1)(b), which the court would have regard to when considering imposing an extended sentence, is concerned with the purpose of protecting the public from serious harm by the offender on his release.

The reference to the words "on his release" are not entirely apt, since the prisoner may be released long before the extension period begins. In considering whether to impose the extended sentence, the court will consider whether the period during which the prisoner would, if not given a extended sentence, be subject to supervision is adequate for the purpose of protecting the public from serious harm by the offender. That needs to he more clearly expressed, and that is what the amendment seeks to do.

The Earl of Mar and Kellie

My Lords, with the leave of the House, I accept what the noble and learned Lord has said. I persist in the view that the decision as to whether an extended sentence is to be imposed is made before the custodial period. It does not seem that the extended sentence can be added on if during the licence period it is found that the person is fairly unrepentant and likely to reoffend. That is my only point.

On Question, amendment agreed to.

Lord Hardie

moved Amendments Nos. 45 to 48: Page 60, line 4, leave out ("on his release"). Page 60, leave out lines 15 and 16 and insert ("purpose mentioned in subsection (1)(b) above."). Page 60, line 26, leave out ("custodial"). Page 60, line 41, at end insert— ("( ) An extended sentence shall not be imposed where the sexual or violent offence was committed before the commencement of section 74 of the Crime and Disorder Act 1998.").

On Question, amendments agreed to.

Clause 75 [Further provision as to extended sentences]:

Lord Hardie

moved Amendments Nos. 49 to 63: Page 62, line 23, leave out ("an offender") and insert ("a prisoner"). Page 62, line 24, leave out ("this section") and insert ("section 75 of the Crime and Disorder Act 1998"). Page 62, line 24, leave out ("is") and insert ("has been"). Page 62, line 29, after first ("a") insert ("sentence or"). Page 62, line 29, leave out ("included") and insert ("was"). Page 62, line 31, leave out ("an offender") and insert ("a prisoner"). Page 62, line 34, at end insert ("; and (b) if he is recalled to prison, the Secretary of State may at any time thereafter, if recommended to do so by the Parole Board, release him on licence."). Page 62, line 35, leave out ("an offender") and insert ("a prisoner"). Page 62, line 44, after second ("the") insert ("day following the"). Page 62, line 46, leave out ("offender") and insert ("prisoner"). Page 63, line 3, at end insert— ("(5A) Subject to section 210A(3) of the 1995 Act and to any direction by the court which imposes an extended sentence, where a prisoner is subject to two or more extended sentences, the extension period which is taken to begin in accordance with subsection (5) above shall be the aggregate of the extension period of each of those sentences. (5B) For the purposes of sections 12(3) and 17(1) of this Act, and subject to subsection (5C) below, the question whether a prisoner is a long-term or short-term prisoner shall be determined by reference to the extended sentence. (5C) Where a short-term prisoner serving an extended sentence in respect of a sexual offence is released on licence under subsection (4)(a) above, the provisions of section 17 of this Act shall apply to him as if he was a long-term prisoner. (5D) In relation to a prisoner subject to an extended sentence, the reference in section 17(5) of this Act to his sentence shall be construed as a reference to the extended sentence."). Page 63, leave out lines 4 to 8. Page 63, line 13, leave out ("an offender") and insert ("a prisoner"). Page 63, line 14, leave out ("an offender") and insert ("a prisoner"). Page 63, line 16, leave out from ("expire") to end of line 21.

On Question, amendments agreed to.

Clause 76 [Drug treatment and testing orders]:

Lord Hardie

moved Amendment No. 64: Page 63, line 27, at end insert ("committed on or after the date on which section 76 of the Crime and Disorder Act 1998 comes into force"). The noble and learned Lord said: My Lords, in speaking to Amendment No. 64 I shall also speak to Amendments Nos. 64 to 66 inclusive and 86 to 96 inclusive. These amendments are of a technical nature and correct typographical errors and errors in cross-references to the Criminal Procedures (Scotland) Act 1995. The opportunity has also been taken to clarify that the new provisions for drug treatment and testing orders can only be applied in relation to offences committed after the commencement of the relevant sections of the Crime and Disorder Act 1998. I ask your Lordships to accept these amendments. I beg to move.

On Question, amendment agreed to.

Lord Hardie

moved Amendment No. 65: Page 64, line 28, leave out ("has been").

On Question, amendment agreed to.

Clause 78 [Procedural matters relating to drug treatment and testing orders]:

Lord Hardie

moved Amendment No. 66: Page 66, line 9, after ("234E") insert ("of this Act"). On Question, amendment agreed to.

Clause 83 [Offences racially aggravated]:

The Earl of Mar and Kellie

moved Amendment No. 67: Page 71, line 35, leave out ("racially"). The noble Earl said: My Lords, in this group of amendments, starting with Amendment No. 67 and running through to Amendment No. 73, we return to the question of religious intolerance, prejudice and bigotry and whether the matter should be included in the Bill. I had intended to raise this issue at the end of the Report stage but ran out of time and had to run for the sleeper.

I have read the official report of our late-night debate on the earlier section; and while we are debating the subject slightly earlier tonight, I am still not convinced that the case has been refuted.

I believe that our debate focused on religion as an intellectual activity. I referred to it as doctrinal differences. This is not the substance of the sectarianism that can be so prevalent in the cultural life of Scotland. Much of this sectarianism is rooted in intolerance and jealousy of immigrants from Ireland. As a child in the 1950s living in Scotland, I learned that the immigrant problem in Scotland was the Irish. Later I made the connection with their being Roman Catholic by cultural inheritance.

I acknowledge that there are many indigenous families in Scotland who have never adopted the reformed faith, but this discrimination against the Catholic population, and vice versa, is now based on historic and cultural grounds but has little to do with any doctrinal or philosophical beliefs. It is unfair and harmful to attack someone for their cultural background and their family's indigenous or immigrant status. They can do nothing about it.

For these reasons of discrimination over historic migration, I return to this subject. From this perspective I see no difference between an historic immigrant from Ireland or from anywhere else. I beg to move.

Lord Hardie

My Lords, the amendments have a similar intention to the amendments to Clause 28, which was formerly Clause 26, laid by the noble Earl, Lord Mar and Kellie, and the noble and learned Lord, Lord Mackay of Drumadoon, which we discussed in Committee and on Report. In responding to the debate on the amendments, I made clear that the Government abhor all crimes based on bigotry of any sort. However, I also explained our view that there would be difficulties associated with extending the scope of the clause, as the noble Earl suggests. The Bill deals with the particular problem on which we consulted, namely racial crime.

This measure is intended to reinforce the protection given to members of our society who are particularly vulnerable to the action of bigoted criminals and builds on long-standing legislation which seeks to protect individuals from prejudice on grounds of race. I reiterate the Government's condemnation of crimes motivated by religious bigotry. But for the reasons I have already explained, I ask the noble Earl to withdraw the amendments.

I should also deal with the point he mentioned specifically tonight. The amendments speak in general terms about religion. Religion is wider than the Roman Catholic religion based on Irish background. Indeed, there are many religions which are not based in Ireland. I remind the noble Earl that at an earlier stage in the passage of this Bill I referred to the Church of Scotland committee which accepted that there was a distinction between religious bigotry and racial discrimination and that the appropriate committee of the Church accepted that a distinction could and should be made. In those circumstances, that would give support to the approach that the Government have taken in consulting on racial discrimination.

Having said that, I wish to emphasise again that the Government disapprove and abhor religious bigotry as much as any other form of bigotry. I invite the noble Earl to withdraw the amendments.

The Earl of Mar and Kellie

My Lords, the discussion about white immigrants who are cast into the cultural guise of Roman Catholics could no doubt continue all night. I have no intention of doing so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 68 to 73 not moved.]

Clause 86 [Power to release short-term prisoners on licence]:

[Amendment No. 74 not moved.]

Clause 99 [General interpretation]:

Lord Williams of Mostyn

moved Amendment No. 75: Page 82, line 15, leave out ("1979") and insert ("1997"). The noble Lord said: My Lords, in moving Amendment No. 75, I speak also to Amendment No. 76. These are minor government amendments. A typographical error is corrected by Amendment No. 75. Amendment No. 76 defines the term "guardian" for the purposes of the Bill. The Bill has several references to a child guardian. We thought that a definition would be helpful. Therefore we have used the same meaning as is found in Section 107 of the Children and Young Persons Act 1933.

On Question, amendment agreed to.

Lord Williams of Mostyn

moved Amendment No. 76: Page 82, line 16, at end insert— (""guardian" has the same meaning as in the 1933 Act;"). The noble Lord said: My Lords, I have already spoken to this amendment. I now beg to move it formally.

On Question, amendment agreed to.

Clause 103 [Short title, commencement and extent]:

[Amendments Nos. 77, 78 and 79 not moved.]

Lord Hardie

moved Amendments Nos. 80 to 84: Page 83, line 20, leave out ("76") and insert ("51A, 75A"). Page 83, line 22, at end insert— ("( ) section 30(A3), (1) and (4);"). Page 83, line 31, leave out ("Section 100 above extends") and insert ("Section 30(A1), (A2)(a), (b) and (d) and (5)(b) and section 100 above extend"). Page 83, line 32, at beginning insert ("Section 30(A3)(b), (1) and (4) above,"). Page 83, line 40, at end insert— ("( ) The repeals in Schedule 10 to this Act, and section 102(2) above so far as relating to those repeals, have the same extent as the enactments on which the repeals operate."). The noble Lord said: My Lords, I beg to move these amendments formally en bloc.

On Question, amendments agreed to.

Schedule 3 [Procedure where persons are sent for trial under Section 45]:

Lord Hardie

moved Amendment No. 85: Page 90, line 10, leave out ("(5)") and insert ("(7)"). The noble Lord said: My Lords, I beg to move Amendment No. 85 formally.

On Question, amendment agreed to.

Schedule 6 [Drug treatment and testing orders: Amendment of the 1995 Act]:

Lord Hardie

moved Amendments Nos. 86 to 96: Page 103, line 46, leave out ("234H") and insert ("234J"). Page 104, line 10, leave out ("234H") and insert ("234J"). Page 104, line 20, leave out ("234A(2)") and insert ("234B(2)"). Page 104, line 30, leave out ("234A(2)") and insert ("234B(2)"). Page 104, line 46, leave out ("234B(1)") and insert ("234C(1)"). Page 104, line 49, leave out ("234B(6)") and insert ("234C(6)"). Page 105, line 13, leave out ("234F(2)(b)") and insert ("234G(2)(b)"). Page 105, line 20, leave out ("z234F(2)(b)") and insert ("234G(2)(b)"). Page 105, line 22, leave out ("233(2)(c)") and insert ("232(2)(c)"). Page 105, line 31, leave out ("234F(2)(b)") and insert ("234G(2)(b)"). Page 105, line 37, leave out ("234F") and insert ("234G"). The noble Lord said: My Lords, I beg to move Amendments Nos. 86 to 96 en bloc formally.

On Question, amendments agreed to.

Schedule 7 [Pre-consolidation amendments: powers of criminal courts]:

Lord Hardie

moved Amendment No. 97: Page 109, line 35, leave out from ("In") to ("for") and insert ("subsection (6) of section 1 of the 1973 Act (deferment of sentence), for the words "13(1), (2) and (5)" there shall be substituted the words "13(1) to (3) and (5). (2) In subsection (8) of that section."). The noble Lord said: My Lords, I beg leave to move Amendment No. 97 formally.

On Question, amendment agreed to.

Schedule 8 [Minor and consequential amendments]:

Lord Hardie

moved Amendments Nos. 98 and 99: Page 130, line 27, at end insert— ( "51A. In section 39 of that Act (rules for the management of prisons) after subsection (7) there shall be inserted the following subsection— (7A) In the application of subsection (7) above to a prisoner subject to an extended sentence within the meaning of section 210A of the 1995 Act, the reference to his sentence shall be construed as a reference to the custodial term of that extended sentence."."). Page 135, line 40, at end insert— ("75A. In subsection (1) of section 1 of the 1993 Act (release of short-term, long-term and life prisoners), at the beginning there shall be inserted the words "Subject to section 26A(5C) of this Act,"."). The noble Lord said: My Lords, I beg leave to move Amendments Nos. 98 and 99 formally.

On Question, amendments agreed to.

Schedule 9 [Transitional provisions and savings]:

Lord Hardie moved Amendment No. 100: Page 142, line 26, at end insert—

("Effect of child's silence at trial

Nothing in section (Effect of child's silence at trial) of this Act shall apply where the offence was committed before the commencement of that section.").

The noble Lord said: My Lords, I beg to move Amendment No. 100 formally.

On Question, amendment agreed to.

Schedule 10 [Repeals]:

Lord Hardie moved Amendments Nos. 101 to 104: Page 144, line 16, at beginning insert—

("30 Geo 3 c.48. Treason Act 1790. The whole Act.
36 Geo 3 c.7. Treason Act 1795. The whole Act.
36 Geo 3 c.31. Treason by Women Act(Ireland) 1796. The whole Act.
57 Gco 3 c.6. Treason Act 1817. The whole Act.
11 & 12 Vict c.12. Treason Felony Act 1848. Section 2.
21 & 22 Geo 5 c.24. Sentence of Death(Expectant Mothers) Act 1931. The whole Act.")

Page 144, line 25, at end insert—

("1945 c.15 (N.I.). Criminal Justice Act(Northern Ireland) 1945. Sections 32 and 33.")

Page 144, line 46, column 3, at beginning insert—

("In section 1, in subsections (8)(b) and (8A) the words "37 or".")

Page 146, line 50, column 3, at end insert—

("In section 35, in subsection (1), the words "who has attained the age of fourteen years" and subsection (6).")

The noble Lord said: My Lords, I beg leave to move Amendments Nos. 101 to 104 en bloc.

On Question, amendments agreed to.

In the Title:

Lord Hardie

moved Amendment No. 105: Line 3, after ("incapax") insert ("and to make provision as to the effect of a child's failure to give evidence at his trial: to abolish the death penalty for treason and piracy"). On Question, amendment agreed to.

An amendment (privilege) made.

Lord Williams of Mostyn

My Lords, I beg to move that the Bill do now pass.

I think that, historically, speeches on this particular occasion have become, I am told by colleagues on all sides of the House, too lengthy. I therefore will simply thank everyone who has participated in the debates on this Bill. We have had eight days of careful work. I do not think there has been a discourteous word spoken and I am bound to say that, apart from all the help I have had from all sides of the House, the discussions that we have had behind the scenes, either in correspondence or face to face, have been extremely helpful. The only last word I would say is that to produce a Bill of this quality and nature in so short a time is a real tribute to the quality of the officials who have worked tirelessly and have given all possible cheerful and willing support to all Members of your Lordships' House, whether the approaches have been made directly by agreement or indirectly through me. I therefore thank everyone who has participated in this generous-hearted way.

Moved, That the Bill do now pass.—(Lord Williams of Mostyn.)

Lord Henley

My Lords, I should like to start by saying that I am in total agreement with the noble Lord about the historical tradition and the fact that the Bill-do-now-pass speeches have grown too long over the years. I am very grateful that the noble Lord has done his bit to make them briefer. The Bill itself has grown somewhat in the course of its passage through this House. When we started we had a Bill of about 122 pages. After Report and before this stage we had grown to 148 pages. According to my reckoning that is a 20 per cent. increase. Similarly we have grown from 96 clauses to 103 clauses. Since then we have dealt with 85 government amendments at Third Reading, with at least five new clauses, admittedly one of which the Government themselves were not so keen on having, but no doubt that is a matter they can deal with in due course.

The Bill has grown, and I make that point merely to say that, first of all, I thank the noble Lord for the constructive way in which he has dealt with it. He has accepted a number of points which have been put to him from these Benches, from our colleagues on the Liberal Democrat Benches and from those on the Cross-Benches. I think that reflects well on the Government and it also shows the value of the work of this House in being able to make improvements to the Bill during the course of its passage here.

I also echo exactly what the noble Lord said in paying tribute to all those who have taken part in the debates on this Bill. I would only want to single out one particular individual, and that is my noble friend and Whip, Lady Anelay, who has taken on a far greater burden on this Bill than I should have imposed on her, especially in the light of her other responsibilities, and particularly in view of the fact that she and the noble Lord, Lord Williams, will be attending to further business after this particular business has ceased—at which point I suspect that I, and possibly the noble and learned Lord will have disappeared from the Chamber.

Lord McNally

My Lords, I will follow those examples of brevity. In many ways I feel like an English footballer at Chelsea football club because I have been surrounded by much superior talent during the passage of this Bill. I am most grateful for that talent and the way in which they have contributed from these Benches. The Government have sometimes used a rhetoric which we have found too robust and too reminiscent of the previous Home Secretary. At the heart of this Bill is a community approach to crime and disorder, which we very much welcome and wish to see encouraged. We appreciate the way that Ministers have treated us with courtesy and growing flexibility in listening to our arguments. The Bill has for me been an educative experience, and much of that education has come from the clear way that the Minister and his distinguished colleagues have dealt with our points. For that we are truly grateful.

Viscount Tenby

My Lords, I too rise to congratulate the Government on the passage of this important Bill. It has been an almost Sisyphean slog and the burden on the government team has been considerable. I understand the point about being brief on this occasion. Would that that thought had been mirrored during the passage of the Bill.

Two things have struck me about the proceedings. First, for a Bill which from the outset attracted a considerable amount of support from all sides of the House, an unconscionable number of amendments were put down. That surely shows this House in its most favourable light, as an amending Chamber of expert opinion and experience. Secondly, I say with great sincerity that I can rarely recall a Bill which has been conducted in an atmosphere of such good will and courtesy. Credit for that must principally go to the Front Bench spokesmen. I draw no inferences, but it may not be entirely without significance that it is an all-Celtic team. I wish this important measure every success in its passage through another place.

The Earl of Mar and Kellie

My Lords, I am extremely grateful for all the letters I have received. It was a great pleasure to be kept informed of where I was probably going wrong. Perhaps I may upstage the noble Lord, Lord Henley, by saying that in Scotland we have gone up from six measures to eight, which I believe constitutes a 33⅓ increase.

On Question, Bill passed, and sent to the Commons.