HL Deb 31 October 2000 vol 618 cc890-910

1.—(1) In this section, except where otherwise stated, "child" means a person under the age of sixteen years.

(2) Any person who—

  1. (a) knowingly commits an act of gross indecency with or towards a child, or who incites a child to commit such an act with that person, or with another;
  2. (b) travels with the intent of committing any act of gross indecency with or towards a child;
  3. (c) knowingly employs, uses, persuades, induces, entices or coerces a child to engage in, or to assist any other person to engage in, an act of gross indecency with or towards any child; or
  4. (d) transports a child with the intent that that child engage in an act of gross indecency,
is guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both.

(3) Any person who—

  1. (a) abducts, detains or otherwise restricts the liberty of a child for the purpose of sexually exploiting that child; or
  2. (b) organises or knowingly facilitates such abduction, detention or restriction,
is guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 15 years, or to a fine, or to both.

(4) Any parent, guardian or other person having for the time being custody or control of a child who knowingly permits that child to engage in, or to assist any other person to engage in, sexual activity, or who knowingly permits the sexual exploitation of that child, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both.

(5) References in the Children and Young Persons Act 1933 to the offences mentioned in the first Schedule to that Act shall include offences under this section.

(6) Offences under this section shall be deemed to be offences against the person for the purpose of section 3 of the Visiting Forces Act 1952 (which restricts the trial by the United Kingdom courts of offenders connected with visiting forces).".").

The noble Baroness said: My Lords, if I may be so presumptuous as to jump to a conclusion as to what the noble and learned Lord may say, I suspect that I shall probably receive the same type of answer from him in relation to this amendment as I did in relation to the previous one.

This amendment relates to a subject which also causes us great concern. It deals with a person who, knowingly commits an act of gross indecency with or towards a child, or who incites a child to commit such an act with that person, or with another; … travels with the intent of committing any act of gross indecency with or towards a child; … knowingly employs, uses, persuades, induces, entices or coerces a child to engage in, or to assist any other person to engage in, an act of gross indecency with or towards any child; or … transports a child with the intent that that child engage in an act of gross indecency, is guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both".

I understand that in America this is seen as an offence. It is dealt with by the courts. The person found guilty of any one of these activities can be dealt with by the courts.

Abduction is a very serious offence. We all know, and are painfully aware of, little Sarah Payne, who was abducted in the first instance before she met her cruel end. Just occasionally that kind of person is intercepted and the child's life is saved. That should be seen as an abduction that both restricts the child's liberty and is for the purposes of sexually exploiting the child. It is possible by policing methods to find out whether a person is organising or knowingly facilitating such an abduction, detention or restriction and whether that person is guilty of the offence of any of the activities I have enumerated today.

I hope that the noble Lord will see that this is a very real issue, that there ought to be an offence in these matters and it ought to be properly dealt with by the courts. Certainly, as the law stands, it is not strong enough. It is my view that it ought to be strengthened. I beg to move.

Earl Russell

My Lords, clearly there is a mischief here. It is my recollection that that mischief is dealt with by the Abduction Act 1489. I have not been able to check whether that Act is still in force, but were the Minister able to do so before the next stage I would be extremely grateful.

Lord Williams of Mostyn

Certainly I shall, my Lords. I have ample time in which to do these tasks. Abduction remains an offence. Kidnapping is an offence if it is associated with murder. Commonly, it will not be charged as a separate offence—sometimes it is—because the penalty for murder is mandatory life imprisonment, which I, for one, support.

One of the problems in the area of sexual offences is that the law is extremely unsatisfactory and confused. I remember the notable advice given by the Lord Chief Justice recently that we need, above all, in the criminal law clarity, coherence and understandability. That was why the sex offences review was set up. The recommendations to the Government were published in July 2000. The document is called Setting the Boundaries. The recommendations are in Volume 1 and the supporting evidence in Volume 2. The consultation period closes on 1st March 2001.

The point of the review is to get clear, coherent offences that are understandable and which can be prosecuted successfully. There are few things worse than criminal law that does not work. That does an awful amount of harm, not least to victims, complainants and their parents. The purpose of the review was to protect individuals, particularly children and other more vulnerable people, from abuse and exploitation and to enable abusers to be appropriately punished. The review has looked at all sex offences. The protection of children has been the central theme. The point is to get a coherent package of measures to protect all victims of sexual violation, particularly children and other vulnerable persons.

It has been a very extensive consultation. My own department has been involved, as have the Bar Council, the Law Society, the NSPCC, Victim Support and the former Chaplain to the Speaker. The advisory group represented a wide range of pressure groups, faith groups and other interests, including Rape Crisis and victims groups in addition to many others. If we have such a review, which has been long overdue, we really should see whether we cannot achieve coherence, consistency and appropriate sanctions in the law of sexual offences.

I hope that the noble Baroness will not say that that is a disappointing reply because it is intended to be constructive and to deal with a basis which is longer term than merely this year or next. We really need to achieve clarity and coherence in this area of the law.

Baroness Blatch

My Lords, I am sorry to disappoint the noble and learned Lord but I find his reply disappointing. Parliamentary time has been found, without waiting for the outcome of the sexual offences review, to lower the age of consent for homosexuals and even worse, to lower the age for buggery in relation to girls aged 16. Why has parliamentary time been found to bring in those measures and yet we cannot apply ourselves to do something about the sort of crimes we read about every day in our newspapers? There is great wringing of hands; statements are made; conferences are convened, but nothing is done.

I have seen the report to which the noble and learned Lord referred. Many of its recommendations could be implemented very quickly. A great deal of thought has gone into the matter but it is taking an insufferably long time for anything to be done about it. The sexual offences review was initiated when I was a Minister at the Home Office. Now, here we are, almost four years later, and the review has not formally reported, nor has it yet given rise to any draft measures for consideration.

I return to the letter which was sent to me by the Minister. It states, in relation to the scheme which has already been set up in the Bill, that, once it is up and running and operating well in practice, we could, if we thought it right. revisit it in future legislation to extend it further". What future legislation? We have a Bill before us now in which it is possible to address some of the very real and urgent issues which have arisen out of the death of little Sarah Payne and cases of Internet procurement for sex.

But then the Minister goes on to say in his letter: but to do so from the start would, in my view, weaken and complicate the measures". It certainly would not weaken them. It may make them more complicated but as the noble and learned Lord has said, such legislation is complicated. That should not be an argument for putting off the day to address it.

I believe that we should get on with this. This is a golden opportunity. We shall have a Queen's Speech in a very short space of time. I know that the noble and learned Lord is not allowed to say what is in it. However, it seems that other Ministers are allowed to say what measures will be brought forward. I understand that some draft Bills likely to be included in the Queen's Speech are already in public circulation. If the noble and learned Lord was able to break all the rules of convention and say that there will indeed be a Bill to deal with these matters in the coming Session of Parliament, then that would go some way towards relieving my fears. I am afraid that it will be some time before we see any resolution of these matters. This is extremely serious; it was a disappointing reply; but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 [Interpretation of Part II]:

Lord Williams of Mostyn moved Amendment No. 61: Page 20, line 40, at end insert— (""Class A drug" has the same meaning as in the Misuse of Drugs Act 1971,").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 62 and 63: Page 21, leave out lines 2 and 3. Page 21, line 30, leave out (""works"") and insert (""working").

On Question, amendments agreed to.

Clause 43 [Exclusion orders]:

Baroness Match moved Amendment No. 64: Page 25, leave out lines 31 to 43.

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 65, 66 and 67.

When the delegated powers committee looked at this Bill between Second Reading and Committee stage, it made an unequivocal recommendation. I referred to it previously and I said that the House should take a view about whether to accept that advice. If the House itself decided not to accept the recommendation, then the matters should be at least subject to the affirmative resolution procedure. The Government have gone that far and they have done that.

Subsequently, as I said at the previous stage of this Bill, I received a letter from the chairman of the Delegated Powers and Deregulation Committee which forcefully reminded me that when that recommendation was made it was the unequivocal recommendation of the committee that those powers should be omitted from the Bill and that secondary legislation should not be used to extend the parameters of sentencing. I strongly agree with that advice, as I believe the House should. As I said earlier, the committee went on to say that in the event of the House not accepting its recommendation, at least such matters should be subject to the affirmative resolution procedure. I believe that to be the case.

The noble Lord, Lord Bassam, in replying to these amendments in Committee did not see the necessity for omitting the powers, but he made reference to particular penalties where it is possible that a parameter of one or two years would not be enough and perhaps that ought to be increased. If we believe that that is the case, we should do that now. It does not mean that the courts will award tougher penalties because the maximum is increased; it means that at least the courts will have the flexibility to go to a higher sentence if they believe that to be appropriate.

Unless the Government have in mind a particular penalty where that kind of flexibility is needed, I believe that we should wait until the next opportunity to pass primary legislation before increasing the parameters of sentencing. I also believe that we should heed the advice of the committee on this matter.

My last point is one that I made in Committee. This could be the first time ever that this House has not accepted the advice of the Delegated Powers and Deregulation Committee. It takes its work seriously for which this House has been grateful. The committee tests the kind of powers that various Secretaries of State seek in legislation. I have been a Minister so I know the tendency of all departments to resort to either Henry VIII clauses or to general powers that give rise to secondary legislation. The temptation is enormous. I have sat in the same position as the noble and learned Lord, desperately trying to defend the situation, but in the end, under the previous government and, so far, under this Government, we have always accepted the advice and the recommendations of the Delegated Powers and Deregulation Committee. I believe that this matter should not be an exception and that we should accept that committee's advice today. I beg to move.

9.30 p.m.

Earl Russell

My Lords, I support this amendment to which I put my name. To be more precise, I support this string of amendments. The point that concerns us—the conferring of power to lengthen criminal sentences by regulation—is one that applies in a whole sequence of clauses.

I know something about the consultations that led to the setting up of the Delegated Powers and Deregulation Committee. As the noble Baroness has said, it has given this House extremely good service. It is extremely careful in its use of language. It does not seek to lay down the law to the House; it seeks to draw issues to the attention of the House. In the light of the way in which that committee usually uses language, I find these recommendations, by its normal style, particularly strongly worded.

I shall quote a few passages from the report of the committee because we should hear the flavour of the recommendations. It states: The committee … considers that it is inappropriate for Parliament to delegate the power to increase the severity of a sentencing power". That is sufficiently unambiguous. It also states: In so far as precedents do exist"— other than in one single Act of the year 2000— they date from before the establishment of this Committee, and so this issue has not come before us before". It continues: the order-making power should be deleted from the bill. If, contrary to our recommendation, the power is to remain, the bill should be amended to make it clear that only affirmative procedure applies". In the light of those words, I do not believe that it is possible to maintain that introducing an affirmative procedure constitutes compliance with the committee's recommendation.

I am reminded of the letter the King wrote to this House asking it to spare the life of the Earl of Strafford. He added at the end of the letter, "PS If he must die, it were charity to reprieve him till Saturday". Reprieving him till Saturday could not be regarded as complying with the letter; and I do not believe the House so understood it.

The reason why it is important, and has been regarded so for quite a long time, that criminal sentences should not be lengthened by regulation is that it is a basic principle that we are subject only to law to which we ourselves have consented. We do not have law made by the executive. We do not have imprisonment by administrative decree. How far regulations are law to which we have consented is a question it would be uncomfortable for us to go into at too great length. It might give rise to too many other interesting questions. And when we get to legislation, not all of those need raising.

It is much safer to have the lengthening of the maximum sentence that can be imposed done clearly, in primary legislation, with everybody knowing what is going on. That is a principle which goes back to the Donoughmore committee of 1932. Certainly, when I was first briefed on this subject by the noble and learned Lord, Lord Simon of Glaisdale, and others when I arrived, they regarded it as one of the absolutely fixed points; that that was something which simply did not happen. They took exactly the same view which the committee has taken.

I am the last person in the matter of regulations to say that nothing should ever change. But I shall repeat to the House the advice that was given to me when I started raising the question of this House voting on regulations. I was told that if that was ever to happen it was something which required the most exhaustive preparation and that there should be the fullest consultation and consideration by all the relevant organs of the House over a long period, which indeed it had. It was considered by the Procedure Committee. It was upheld in 1994 by a resolution of this House, and it was not until six years after that that it actually happened.

So if the noble and learned Lord is to tell us that the convention that criminal sentences cannot be lengthened by regulation is to be changed, it would require, before that could be done, that element of preparation. And it would have to be a necessary condition of any such preparation that it would be understood that voting against regulations would become a great deal more frequent than anybody suggested it should be when we discussed the Greater London regulations. I am not sure that that is quite what the noble and learned Lord the Attorney-General would like. But if he were to persist with ignoring the advice of the committee in this matter, that is the direction in which his action would lead. I hope between now and the later stages of the Bill he will consider whether that is really what he wants.

Lord Carlisle of Bucklow

My Lords, I realise that the hour is getting late. But, like the noble Earl, Lord Russell, there is a fundamental principle behind the amendments proposed by my noble friend Lady Blatch, and I am delighted to see that the Attorney-General has been good enough to attend to reply to this debate.

I did not take part in the Committee stage and therefore I want to set out, I hope briefly, what I understand it is the Government are proposing and the effect of this amendment. As I understand it, if one looks at the clauses referred to, the Bill provides four new orders for a court to make: first, an exclusion order which, in certain circumstances, would prevent an individual going to certain places at certain times; secondly, a drug abstinence order which would require an individual to undergo drug tests; thirdly, a curfew requirement which imposes requirements on persons subject to curfew; and, fourthly, an exclusion requirement, which would impose requirements on those who were the subject of an exclusion order.

The Bill lays down the maximum period for which any of those orders can be made. I understand it to be proposed that the Secretary of State or the Home Office should have power by secondary legislation to extend the maximum period of the order which this House is now approving in the Bill and therefore the maximum order, which by the decision of this House, the courts can now impose. It is proposed that that should apply at any stage to this Bill and the powers which we are providing in it. They may be small matters but every one of them in some way curtails a right of the individual. It may be his right as against an exclusion order; his right to refuse to be tested for drugs; or his right to go where he wishes during the period of a curfew order.

We should consider carefully what is the situation of this House when increasing the powers of the order which a court can make. I believe that the separation of powers between the judiciary and the legislature is extremely important. I believe that there is a delicate balance often to be struck. I believe it vital that we should always realise that the power of the judiciary is to impose sentences—and I accept in this case pass fairly nominal orders—within the power granted to them by the legislature.

The question is whether it is right that the legislature should allow those powers to be varied by means of secondary rather than primary legislation. I put it to the noble and learned Lord the Attorney-General that the parameters—where we draw the line of that which the court is entitled to do—are extremely important. Those who draw the parameters must be accountable to society for the parameters they draw.

I am not saying that Parliament is not responsible for a statutory order. It is, but it is not in the same way responsible as it is for primary legislation. I believe that when we are changing those parameters so as to prevent the citizens of this country doing acts which otherwise they lawfully can do it is important that that matter should have the opportunity of full parliamentary debate. I suspect that pretty well all I have said, if it made sense at all, would not be disagreed with by the noble and learned Lord the Attorney-General.

The argument put by the Minister who replied in Committee went no further than to say, "You have to have flexibility and there is not enough time". Of course, I accept that the whole object of an Opposition is to take up time. The Government's legislative programme is always under pressure but it is no excuse to say, "We wish to affect individual rights by order merely because we do not have time to get the primary legislation through the House". I hope that the Attorney-General will reflect on what is said in this debate. My noble and learned friend Lord Mayhew, who is a member of the Select Committee, may also say a few words. The Select Committee made it absolutely clear that it was concerned about the powers being taken in the Bill.

The Minister who replied to the debate said that there were precedents for what was sought to be done. That is probably so. However, what are those precedents, and is it right to move in this way? It is difficult to go against the advice of the Select Committee comprising people of such eminence as my noble friend Lord Alexander. I hope that the Attorney-General will confirm my understanding of the effect of these amendments and reflect on whether it is right to act by secondary rather than primary legislation.

9.45 p.m.

Lord Mayhew of Twysden

My Lords, I do not speak as someone who considers himself an eminent member of the Select Committee or of an Opposition whose only object is to take up time. My noble friend Lord Carlisle and I share the additional objective of helping Parliament as a whole to get the legislation right.

It is helpful to turn to the mantra which heads every report, including the 22nd report, of the Delegated Powers and Deregulation Committee: By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislation". I speak tonight only for myself and not for my colleagues on the committee. I respectfully endorse what has been said by my noble friend on the Front Bench, the noble Earl, Lord Russell, and my noble friend Lord Carlisle. When one considers, not the reduction, but the maximum of a sentencing power, one must approach the matter with great care. If this House does not regard the liberty of the citizen as of overriding importance we have moved a long way from our traditional priorities. I do not believe that we have.

The committee is called upon to express an opinion as to whether the delegation of power in a Bill is appropriate. One has only to read the annual report of my noble friend Lord Alexander of Weedon, who chairs the Select Committee, to see that it is an all-party committee which since its establishment has never expressed an opinion as a result of a vote. That is certainly so in the case of the report now under discussion. I pause, or perhaps I am flannelling, to allow the Attorney to be informed, because Attorneys do not take instructions. On this occasion, as on all others, the committee arrived at the conclusion, without any division, that it would be inappropriate to permit the extension by order of a sentence of each of the kinds dealt with in the amendments.

I hope that when he comes to reply the Attorney will tell the House why he considers it appropriate, contrary to the views of the committee—which are not binding—to increase the powers. If noble Lords were debating a provision to diminish a sentencing power it would be a different matter. That would not impinge on the liberty of the subject, whereas here it does.

In conclusion, I should like to put two questions. First, what are the precedents, if any? In paragraph 16 of the 22nd report we find that the Home Office identified two precedents: Sections 45 and 50 of the Powers of Criminal Courts (Sentencing) Act 2000. A footnote reminds us that there is a third precedent in Section 50. However, paragraph 16 states that the Home Office, readily admitted that these were not an exact parallel. In so far as precedents do exist they date from before the establishment of this Committee, and so this issue has not come before us before". Can the noble and learned Lord confirm that those are the only quasi-precedents and that there are no exact precedents?

Secondly, what are the circumstances in which the Government would view it as expedient to have an order-making power to enlarge this sentencing power? We are not in the habit of suffering a drought in legislation from the Home Office in the criminal justice field. What is the urgency? Why not wait for the next criminal justice Bill or similar measure? I would be greatly assisted by replies to those two questions.

Lord Williams of Mostyn

My Lords, I am most grateful for the contributions that have been so moderately made. There is no question of ignoring the advice of the committee. It is a committee of great eminence. It is always enormously respected by the House. What the committee said was that it recommended that the powers should be omitted. If those powers are to remain—contrary to its recommendation—the committee suggests that they should be subject to affirmative procedure. So it is only fair that I should read out the whole of the caveat and point out that we have gone to the compromise position of the affirmative procedure.

The noble and learned Lord, Lord Mayhew of Twysden, put to me one or two questions about precedents and what would be the requirement for the order-making power. The requirement comes because the orders are experimental in nature and are due to be piloted. We cannot be absolutely certain about the most effective period of time for the orders because they differ. The maximum length of the exclusion order is set at one year, partly because it is less intrusive than the curfew order where the maximum is six months. The exclusion order may be too short to be effective against a stalker or someone intent on domestic violence. That is the reasoning and the answer I give to the second question which the noble and learned Lord put to me.

The noble Lord, Lord Carlisle of Bucklow, asked me to confirm that he was correct in his description—I do—where speaking of exclusion orders, drug abstinence orders and exclusion and curfew requirements of community service orders. So the noble Lord is quite right.

I return to precedents. The maximum period of a community order can be increased by secondary legislation. The maximum term of a probation order and a curfew order can be amended using delegated powers. Section 49 of the Criminal Justice Act 1991 allows the proportion of a prison sentence spent in custody to be changed, including its increase by secondary legislation. I am happy to deal with the points—the two barrels of that very fine shotgun, respectively the noble Lord, Lord Carlisle, and the noble and learned Lord, Lord Mayhew.

It seems to me—I put this only for consideration— that that power is a very significant power going directly to the liberty of the individual who is incarcerated. If one wants to look qualitatively at the differences between imprisonment and the kind of orders which the noble Lord, Lord Carlisle, correctly identified, I would suggest, with great respect, that Section 49 of the Criminal Justice Act 1991 is a more significant potential interference with the true liberty of an individual and that it can be increased by secondary legislation.

Lord Carlisle of Bucklow

My Lords, am I right in thinking that the 1991 Act implemented the proposals of the committee, which I had the honour of chairing, for reforming the parole system and provided for the release of those serving sentences of four years or less at the 50 per cent stage?

Lord Williams of Mostyn

My Lords, the noble Lord is right and reinforces my point. If in those past liberal days—I am deliberately not looking at the noble Earl, Lord Russell—it was right to release at the 50 per cent stage, I think that the noble Lord has honourably, if I may say so, identified and crystallised my point even more. I would suggest—I do not think that there is a tolerable argument to be levied against my suggestion—that the increase from a half, on the noble Lord's recommended scheme, to three-quarters by secondary legislation, which is possible under Section 49 of the Criminal Justice Act 1991—that type of potential interference with the liberty of theindividual—is much more fundamental than what is proposed here. We propose that if the pilots produce evidence to imply that these periods are wrong, secondary legislation, subject—I say this firmly—to the affirmative procedure, is much less objectionable if one wants to attack the principle, and it is the principled approach which the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Carlisle, have put to me for my comment.

Earl Russell

My Lords, can the Minister explain why it is a good argument to say that because Homer nodded in 1991, he should nod again in 2000?

Lord Williams of Mostyn

My Lords, it is not a good argument, but when someone as distinguished as the noble and learned Lord, Lord Mayhew, asks me a question, I think it is right that I should give him the answer. If he asks me about what happened in the past and asks me to help him, I think I have a duty to the House, as well as it being a courtesy to him, to do it, however inconvenient the answer may be to certain factions. That is the unhappy truth of the matter. I am only the bearer of the message. I was not the constructor of the message in 1991, which I think was some six years before the last election.

There are other points to be made, all of which will be equally disagreeable. Under the European Communities Act 1972, the Secretary of State can make regulations to bring into effect treaty obligations, including any provision as might be made by an Act of Parliament provided that this does not include creation of any criminal offence punishable by imprisonment of more than two years. That is a reasonably significant interference with the liberty of the individual. Therefore, what is proposed is not without precedent. Even if it were, the principled argument ought to be met.

I have dealt with the argument on precedent, I have dealt with the argument about significant interference with individual liberty and I have given the reason for flexibility. We ought to pilot these new remedies if the evidence about what works and does not work is available. I submit that we have done decently by the recommendation of the committee. We have certainly not ignored it. We have not accepted it in full but we have adopted something which I suppose it would have described as the "least worst".

These are all respectable arguments. I have not been instructed on them. They are perfectly tenable arguments to put in your Lordships' House, and I put them.

Lord Mayhew of Twysden

My Lords, before the noble and learned Lord sits down, I am most grateful to him for the care with which he has addressed the questions which I have put to him. The 1991 Act, which he cited, certainly eluded the Home Office representatives when they gave evidence to the committee. The question of precedent is interesting and important. Members in both Houses always look at precedent.

Does the noble and learned Lord agree that there is a distinction to be made between the provision of the 1991 Act, which varies a component of the sentence—on the one hand, the proportion to be spent in custody and, on the other hand, the proportion to be spent on parole, but still serving the sentence—and what we are dealing with here? We are considering sentences which are whole and complete in themselves. I hope that the noble and learned Lord will appreciate the distinction that it is one thing to vary a component within an overall sentence, but quite another to take powers to increase the sentence itself. Does the noble and learned Lord agree that that is a legitimate distinction which can be drawn?

10 p.m.

Lord Williams of Mostyn

My Lords, precedent can be an unhappy boomerang. If no precedent has been set, I shall be struck on the back of the head. If there are precedents, those who have inquired about them are in danger of being struck unless they duck.

I agree that we cannot be bound simply by the existence or otherwise of precedents. However, I shall focus on the question put to me by the noble and learned Lord by returning to the correct identification made by the noble Lord, Lord Carlisle of Bucklow. We are discussing, on the left hand, exclusion orders, drug abstinence orders and the exclusion and curfew requirements of community orders. On the right hand, we have the prospect that someone serving a sentence of imprisonment may have, by secondary legislation, the component to be suffered in prison—which, in direct response to the question put to me by the noble and learned Lord, Lord Mayhew, is much more important than the notional sentence—rising from one-half to, say, three-quarters. If one wishes to balance those, I am happy to do so because I reassert—I believe that I am fundamentally right here—that in terms of interference with individual liberty, the left hand interference is infinitely less, both in its effect and in its quality, than the right hand.

We all know that the apparent sentence imposed by the court is not the actual length of time that is to be served. What matters to the individual, his friends and family, relations and acquaintances, is not what has apparently been imposed by the judge, but the real time. Under Section 49, real time served in prison can be increased by secondary legislation. That does not reside in the same category of levels of interference with individual liberty as the power specified here.

Lord Carlisle of Bucklow

My Lords, perhaps I may speak once more before the noble and learned Lord the Attorney-General sits down. Of course I had nothing to do with the framing of the 1991 Act, nor did I take part in the discussions on it; but I accept that I was responsible for the review of parole which led to it. However, there may be a difference in what he is saying and I should like to look again at the Act. The fact is that the three-quarter point was the point at which remission started for all prisoners. The proposal put forward by the Parole Review Committee was that those serving under four years should be allowed out once they had served 50 per cent of their sentence.

However, without looking again at the provision I do not think that Section 49 in any way gave any power to a Secretary of State to increase the maximum sentence available to a judge to pass without referring back to Parliament. Surely the issue here is not the effect on the individual, but whether in principle it is right that the executive—I accept that there are arguments on both sides—should have the power, through order-making procedures rather than in primary legislation, to increase the order that the court can make. As I understand it, that did not apply in the noble and learned Lord's explanation of the 1991 Act. I believe that he was saying that the executive took to themselves the power to vary the period within the sentence which was passed.

Lord Williams of Mostyn

My Lords, with great respect, that is entirely my point. The principle derives only from the effect made on the individual. That has been the reasoning behind the careful arguments which have been put. To paraphrase the principle rather crudely and not entirely satisfactorily: it is Parliament, through primary legislation, which must act as the watchdog over individual liberties. If that is the principal thrust, which I see it to be, then if the Secretary of State can say that the 50 per cent introduced by the Parole Review Committee can be increased by secondary legislation to, let us say, two-thirds or three-quarters, effectively the real time to be served by the individual will be determined by secondary legislation introduced by the Secretary of State. It does not seem to me that there is any distinction in principle there at all.

Baroness Blatch

My Lords, the noble and learned Lord has been meticulous in picking up the arguments and the tests set for him by my noble and learned friend Lord Mayhew and my noble friend Lord Carlisle.

My noble and learned friend and my noble friend have valiantly fought back and argued against the example cited by the noble and learned Lord the Attorney-General. However, another point was picked up by the Select Committee on Delegated Powers and Deregulation. If I may use non-lawyers' language and be more colloquial, the Select Committee said that two wrongs do not make a right. The Select Committee made reference to the fact that it was not in being at the time of the previous legislation. Implicit in what it said was that, had it been, it might have queried even the power to which my noble and learned friend and my noble friend referred.

We should judge the recommendation in the light of the here and now; in the light of the way in which the Select Committee does its work. The Select Committee was set up because there was a growing concern about the numbers of powers being taken by various Secretaries of State, the width of those powers and the fact that they gave rise to a great deal of legal activity through secondary legislation. I know that this has been a particularly vexed issue for the noble Earl, Lord Russell, who has constantly cited the convention of the House that one does not amend secondary legislation—one either rejects it or accepts it—which always makes it particularly difficult.

The principle established by the Delegated Powers and Deregulation Select Committee is that before the House considers an issue the Select Committee looks carefully at the powers to be taken in legislation and proffers its advice. Up until this moment that advice has always been taken. The Select Committee in this instance has made an unequivocal recommendation that these powers should be omitted from the Bill.

The noble and learned Lord the Attorney-General read out the whole recommendation. I did the same. I made it absolutely clear that the caveat—which was confirmed in the letter sent to me after Second Reading by the chairman of the Select Committee—applied only if the House, as a House, rejected the recommendation of the Select Committee.

I believe that we should accept the recommendation of the Select Committee. I do not believe that two wrongs make a right. I do not believe that we should go back simply because it was used in 1991, albeit a real distinction has been made in that we are talking about whole sentences and not component parts of sentences. The noble and learned Lord is right: if one is talking about a component part of a sentence it can, potentially, impact on the liberty of an individual.

The Select Committee has proffered good advice. It should be taken. We should continue consistently to accept the advice of the Delegated Powers and Deregulation Select Committee unless we have very good reasons for not doing so. When there are more learned noble Lords in the House than the few qualified people present at the moment, the House should take a view on these matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 [Drug abstinence orders]:

[Amendment No. 65 not moved.]

Clause 47 [Community sentences: curfew requirements]:

[Amendment No. 66 not moved.]

Clause 48 [Community sentences: exclusion requirements]:

[Amendment No. 67 not moved.]

Clause 50 [Breach of community orders: warning and punishment]:

Lord Windlesham moved Amendment No. 68: Page 35, line 17, at end insert— ("1D) In addition to making an order under sub-paragraph (1C) above, the magistrates' court may impose a fine which shall not exceed f1,000."").

The noble Lord said: My Lords, we come now to another item of unfinished business from the earlier stages of the Bill. In the form in which it was debated on Second Reading, Clause 50—originally numbered Clause 48—was one of the most objectionable in the entire Bill. To remind ourselves of the nightmare that has now passed, it provided for a mandatory sentence of up to three months' imprisonment, other than in exceptional circumstances, for the breach of a community order, the offender having received one prior warning.

Fortunately, the Summer Recess afforded time for second thoughts on the part of the Home Secretary, prompted by representations from various Members of your Lordships' House and others, notably the Lord Chief Justice.

In Committee earlier this month, what is effectively a new clause (now Clause 50) was inserted by way of a government amendment. Although the process that has been substituted is extremely complicated and will take a lot of getting used to in the courts—difficult decisions will have to be taken when an offender is brought back for breach—nevertheless, the unacceptable degree of rigidity has been relaxed, and that is very welcome. Within some limits, sentencing discretion has been returned to the courts, where it belongs.

There is, however, scope (as there always is) for one further improvement. It does not affect either the principle of certainty of outcome, to which the Government are so wedded, or the way in which the clause is now drafted. Both of those are in general acceptable. But there is one omission; namely, the question of the ability of the court to impose a fine.

Perhaps I may briefly rehearse the sequence of events proposed in the amended Bill. As it stands, if an offender is over 21 years of age, and the court decides that the original order can continue, then the options are: a community punishment—that is, unpaid work for the benefit of the community—or a curfew order. These are the two principal penalties available to the court.

There are cases where the offender may not be suitable for a community punishment order—for reasons such as addiction, mental illness, or incapacity because of poor health, when it would not be within the capacity of the offender to carry out the obligations under such an order—and where a curfew order may be unsuitable. These two orders look all right in government discussion papers; but the curfew order would simply not be appropriate where there is unstable accommodation, and many offenders have no stable home address. Then there is the question of domestic violence. What happens if an offender is sent back to a home at which a partner will be at risk? In such cases the courts would be wrong to consider a curfew order; nor would they be willing to do so. In these circumstances a fine should be available to the court.

That sanction is not currently listed in the Bill as an option, although its inclusion was urged by several speakers in our earlier debate, including the Lord Chief Justice, the noble and learned Lord, Lord Woolf. We might pause here to note that it was the noble and learned Lord's first speech in his new capacity as Lord Chief Justice, bearing in mind that he was only appointed to that high office during the summer, although he had previously been a Lord of Appeal in Ordinary and Master of the Rolls. It was very welcome that he allowed so little time to elapse before following the practice set by his predecessors in office of bringing high judicial experience of sentencing to bear in debates in this House on criminal justice.

So without the possibility of a fine, where an offender is unsuitable for any other disposal, the alternative left to magistrates and judges would be to revoke the order and to re-sentence to imprisonment. Thai would be cumbersome and also—surely more importantly in the interests of justice—it would be disproportionate.

I am aware that the Government are concerned about the failure rate in collecting fines, but there are grounds for hoping that the changes in enforcement to be brought in by the Access to Justice Act 1999 will improve the situation. The only reason offered by the noble and learned Lord the Attorney-General, in response to our earlier debate, for not including fines—namely, that it was a lower sentence in the tariff than the community sentence originally imposed—was, if I may say so, blown out of the water by no less a figure than the Lord Chief Justice, whose comments on that proposal can be found in Hansard.

In the circumstances, I hope that the Government will be willing to think again about making this relatively small, but potentially useful, change. I beg to move.

10.15 p m.

Lord Dholakia

My Lords, I support this amendment to which I have attached my name. We were delighted in Committee when the noble and learned Lord the Attorney-General put forward certain amendments that brought some flexibility to a clause that we found very objectionable in the first instance. The one aspect missing here is something that the noble Lord, Lord Windlesham, demonstrated; namely, the fact that, although there is some flexibility, what is required is the inclusion of fines as one of the alternatives that a magistrate and a Crown Court could consider.

The amendment has the backing of the Association of Chief Officers of Probation. I hope very much that the arguments put forward by the noble and learned Lord the Lord Chief Justice and by the noble Lord, Lord Windlesham, will be taken into account and that fines can he included as an alternative in the clause.

Lord Brennan

My Lords, in my view, the amendment is unnecessary and unhelpful because it would undermine the effectiveness of the new system for dealing with breach of community orders, at which Clause 50 is directed. There are three reasons for my disagreement. First, if fines become an alternative, the amendment would produce an inconsistency in sentencing. Those on the Benches opposite will remember the events of 1991 when the Criminal Justice Act introduced the concept of unit fines, which was rapidly withdrawn—in fact, abolished—by the Criminal Justice Act 1993. That piece of history is not put forward critically but merely to indicate the complexity with which the philosophy of fines has affected this House and the courts. There is no philosophy. We are now left with Section 18, as amended in the 1991 Act, which leaves a wide and ill-defined scope to the power to impose a fine. The court must reflect the seriousness of the offence and the offender's financial circumstances.

In that loosely-defined regime, one can readily see, despite the good intentions of those proposing the amendment, that many courts will treat the possibility of a fine as a cheap and easy alternative, which, in some cases, they will adopt, while in others they will go to the other extreme. However, in either event, they will undermine the effectiveness of the alternative penalties of curfew or a community punishment order. The state of thinking about fines has led a distinguished academic to talk about the "diversity and indiscipline" with which courts apply them. Hence my first reason; namely, that there is a real risk that the amendment would introduce inconsistent sentencing.

My second reason is practicality. Many of those who will be in breach of such orders as we are concerned with will be living upon the minimum state security benefits to which they are entitled. A fine may have some punitive effect on a rich or well off defendant; it will always have a serious punitive effect on someone on a minimum income. If the state has designed that income to reflect the minimum that is necessary for ordinary life, to impose a fine on such a person is immediately to put him or her below the standard which the state has said is the minimum that is reasonably acceptable. That hardly becomes a theory of effective penal reform. It is therefore, I submit, impractical.

Finally—this is perhaps much the most important point—if introduced, fines imposed on this kind of offender create the real risk that because they cannot afford to pay they will reoffend. I can find only one piece of research carried out by the Home Office in 1973 based upon reasonable data. It sought to investigate the effect of courts imposing fines on probationers and consequent reoffending. The data led the study to conclude that there was a consistent tendency for probationers who had been fined to have a relatively high failure rate; in other words, to reoffend. The literature is based on reasonable data and is against the concept of fining those who are the subject of conditional orders such as community orders.

I hope that my noble and learned friend the Attorney-General will deal with my next point. The terms of the amendment appear to suggest that the fine will be an additional penalty rather than an alternative one. However, I shall leave that to him to explain. I conclude by opposing the amendment on the basis that a reasoned critique shows it to be inappropriate.

Baroness Blatch

My Lords, the noble Lord, Lord Brennan, made some interesting points about fines. I do not know whether he will be present when we discuss the proposal in Clause 69 to double fines for another group of people to whom many of the arguments made by the noble Lord apply.

I shall leave my noble friend to respond to some of the detailed technical points made by the noble Lord, Lord Brennan. However, my understanding of the amendment is that it seeks to increase the choices available to the courts which have at least one primary obligation; namely, to mete out the most effective and appropriate punishment for the criminal activity that has been committed by the person before them. The amendment offers one further option to the courts; namely, to be able to consider a fine alongside all the other available measures. If the imposition of a fine is appropriate and has the effect of appropriately punishing an individual, why deny the court that choice?

The noble Lord, Lord Brennan, made some interesting points on the effect of the imposition of a fine and the impact on the effectiveness of the proposals that the noble and learned Lord is defending on behalf of the Government. I look forward to hearing my noble friend address the points I mentioned. As I say, I hope that the noble Lord, Lord Brennan, will repeat some of the arguments he has made when we discuss the option of a fine for parents whose children are truanting from school.

Lord Brennan

My Lords, before the noble Baroness sits down, I invite her to note that Clause 69 deals with parents of children who truant. I am talking about penalties against convicted offenders who are the subject of court sentences.

Baroness Blatch

My Lords, I take that point but I understand that a parent brought before the court would be convicted of being at least complicit in their children not having attended school.

Lord Williams of Mostyn

My Lords, it is sad to find the noble Lord, Lord Windlesham, and the noble Lord, Lord Dholakia, insistent on heavier penalties. It is a unique experience for me.

Lord Windlesham

My Lords, we argue for neither heavier nor, after the remarks of the noble Lord, Lord Brennan, less severe penalties. These are alternatives. If the noble and learned Lord can fasten that thought in his mind it would help the discussion.

Lord Williams of Mostyn

My Lords, I have it firmly fastened in my mind. I understand an alternative and an addition. As my noble friend Lord Brennan rightly pointed out, the amendment states: In addition"— not "instead of" or "as an alternative"— to making an order under sub-paragraph (1C) above"— sub-paragraph (1C) relates to the attendance centre order— the magistrates' court may impose a fine". Thus I fix my mind firmly to the only point which offers itself. Our present proposed sentence is an attendance order. As co-conspirators, the noble Lords propose not an attendance centre order but the attendance centre order and a fine.

Lord Dholakia

My Lords, it is "may".

Lord Williams of Mostyn

My Lords, it is, of course, "may" but that is not an alternative to simply having a fine as opposed to an order. In other words, the noble Lords take the proposed present sentence and add—I take the words "in addition"—£1,000 on top of the attendance centre order. That may be what they want—they may have been mixing with unsuitable company—but I do not think that it is.

That point is fatal to the presently constructed amendment. But I believe that the analysis of the noble Lord, Lord Brennan, was correct. I have nothing to add to it.

Lord Windlesham

My Lords, that response, charmingly given as usual, is disappointing in substance. The House will welcome the speech of the noble Lord, Lord Brennan. The Government Front Bench will welcome his speech even more. Discussion has continued over seven hours with a break for dinner—a civilised habit in this House. I believe that the noble Lord, Lord Brennan, is only the second person on the government Benches in all that time to speak. The first was his neighbour—he loyally still remains in the House at this hour—the noble Lord, Lord Warner, who made an earlier intervention. The speech of the noble Lord, Lord Brennan, was extraordinarily powerful, ingenious and well argued.

However, whatever the drafting, we cannot disregard the fact that the Lord Chief Justice said in an earlier debate that he felt that fines should be an alternative penalty available to the courts. I studied and wrote about unit fines in the early 1990s. It is a sad and involved story. But I do not accept any parallel between the story of unit fines and their collapse and what we talk about now.

To my astonishment, the Attorney-General—he is normally so flexible on these matters—insists that the court cannot impose a fine. We shall ban the court from even considering a fine. It will not be beyond the wit of the Home Office or others giving sentencing guidance to say that the intention is that it should be one of these three orders. I mention only the two because the attendance centre order relates only to young people. But he rules out and removes from the discretion of magistrates and the Crown Court the ability to impose a fine when they believe that that is right. It may be the only remaining penalty that can be imposed.

The examples I gave came from the Association of Chief Officers of Probation. Those individuals see offenders in court day in and day out. They feel strongly that in some circumstances—I mentioned the examples that they cited—the court will not be able to impose a curfew order or a community service order. In those cases the outcome will be a prison sentence, which could be a disproportionate and unjust penalty. I would greatly regret that, but at this time of night I shall say no more, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 69 not moved.]

10.30 p.m.

Clause 57 [Life sentences: tariffs]:

Lord Williams of Mostyn moved Amendment No. 70: Page 41, line 13, leave out from ("direction") to ("there") and insert ("which it would have given under section 87 below (crediting periods of remand in custody)"").

The noble Lord said: My Lords, this is a minor drafting amendment. The earlier reference was incorrect. I hope that the amendment corrects it. I beg to move.

On Question, amendment agreed to.

Clause 58 [Abolition of sentences of detention in a young offender institution, custody for life, etc.]:

Lord Dholakia bad given notice of his intention to move Amendment No. 71: Page 42, line 6, at end insert— ("( ) This section will he commenced only after standards have been set and age appropriate provision made for young adults (18 to 24 years old) in custody.").

The noble Lord said: My Lords, when I drafted the amendment I was not aware that the Government intended to table Amendment No. 72. It meets the concern that lies behind Amendment No. 71, so I shall not pursue my amendment, on the assumption that Amendment No. 72 will be carried.

[Amendment No. 71 not moved.]

Lord Williams of Mostyn moved Amendment No. 72: Page 42, line 15, at end insert— ("( ) On the coming into force of this—

  1. (a) paragraph (b) of the definition of "qualifying sentence" in section 30(1), and
  2. (b) paragraph (b) of the definition of "relevant sentence" in section 66(9),
are omitted.").

The noble Lord said: My Lords, I am grateful to the noble Lord, Lord Dholakia. He and I share a concern that, although all those over 18 may be sentenced as adults, they should not all be treated in the same way as more hardened criminals. We want to introduce flexibility to the prison regime and make more appropriate provision for young adults and a large number of prisoners whose maturity and vulnerability is not necessarily related to their chronological age.

In another place, the Minister of State, Mr Boateng, made it clear that we would not implement the abolition of the sentence of detention in a young offender institution until appropriate arrangements were in place. I repeat that intention. I know that the noble Lord, Lord Dholakia, is well aware of that. I happily give a further commitment that the Prison Service will produce an order covering young adult offenders before DYOI is abolished. That will be drawn up after consultation with interested bodies. The order is likely to focus on the reduction of reoffending by moving young adult offenders from custody to work more effectively. Consultation will continue. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 73: After Clause 62, insert the following new clause—