Criminal Justice Bill

HL Deb 14 October 2003 vol 653 cc768-840

3.16 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to. House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 215 [Meaning of "specified offence " etc.]:

Lord Dholakia moved Amendment No. 195AA: Page 126, line 32, leave out "a specified offence" and insert "of a serious sexual or violent nature

The noble Lord said: Chapter 5 provides measures for dealing with dangerous offenders. The Halliday report criticised the existing disparate set of provisions for sexual and violent offenders and identified a need for a more coherent sentencing structure to deal with this type of offender.

These measures are designed, it seems, to replace the existing structure of automatic life sentences, longer than normal prison sentences and extended sentences. Thus, Schedule 26 provides for the repeal of Sections 80, 85 and 109 of the Powers of Criminal Courts (Sentencing) Act 2000. In their place Clause 215 states that where an offence is a "serious offence" with a maximum of life imprisonment and the court regards the offender as a significant risk to the public, and the seriousness of the offence is such as to justify a life sentence, the court must impose a sentence of imprisonment for life. Clause 216 contains a similar provision for offenders under 18.

Clauses 215 and 216 also provide that where a sexual or violent offence is a serious offence, with a maximum sentence of at least 10 years, and the court takes the view that the sentence it might otherwise pass would not be sufficient to protect the public from the significant risk that the offender presents, the court must impose a sentence of imprisonment for public protection".

That is a kind of indeterminate and reviewable sentence, release from which is governed by Schedule 15.

We are concerned that under Clause 215 Schedule 12 could be extended to cover other offences. The assessment of "dangerousness" under Clause 220 could fetter the discretion of the courts in making an extremely important decision for the public safety. We are not persuaded that these hoops would make sentencing any better or easier to understand. It should be for the courts to review the decision taken under Clause 221. The wide power of the Parole Board to extend sentences, even if ECHR-complaint, is undesirable and not in the interests of justice and democracy.

The intention behind the amendments is to try to open up discussion of what kind of offences will trigger those provisions and to advance our view that the list should be limited to serious or violent offences. A cursory glance at the list will show the Committee that a whole range of what are in our view non-serious offences is included.

The amendment is grouped with Amendments Nos. 195AB, 197A and 197B. They raise an issue of significant public importance. People have strong views about the best way to deal with dangerous offenders. In the course of debate on the amendments, we shall be able to probe the Government's thinking on the subject. We should have an honest debate about sentencing; but equally it is important to identify what works and is good and effective for both defendants and victims.

Perhaps the most important change would be made by the amendment requiring that the offence be serious. Our intention is to debate what sort of offences should trigger the dangerous offenders provision and to consider what thought has been given to the subject since the relatively recent amendments made by the Powers of Criminal Courts (Sentencing) Act 2000.

The second question is whether it is appropriate to define "serious sexual and violent offences" by means of a list of offences. These are probing amendments, so it will be useful to hear the Minister's thoughts on those matters. I beg to move.

Lord Thomas of Gresford

This group of amendments raises the question of the best way to use public resources in the criminal justice system. A basic criticism of Chapter 5 of Part 12 is the high cost involved in putting it into effect.

For example, it requires a massive increase in the material required for the sentencing court: the gathering of information about the circumstances of the offence; the pattern of behaviour of the defendant; and any further information about him that can be made available. There will then need to be submissions and argument in court about whether there is a significant risk of serious harm to members of the public occasioned by further offences set out in the list in the schedule. Those offences may be quite different from the offence for which the defendant stands before the court to be punished.

The scheme also envisages a significant lengthening of terms of imprisonment. The Committee will know from our many debates on the subject that imprisonment is extremely costly. It means more imprisonment by reason of the number of life sentences that will be imposed and by the new sentence of imprisonment for public protection, under which it is envisaged that imprisonment of a defendant will continue indefinitely until the Parole Board orders release. There is then the cost of extending the Parole Board and its bureaucracy to cope with what will be a massive increase in its workload.

The provisions then envisage that after the completion of sentences of imprisonment a defendant will serve a period on licence. The cost of supervising licences—presumably by the probation service—of both those released from life sentences or sentences imposed for public protection and those subject to extended sentences of up to five years for violent offences or eight years for sexual offences must also be considered.

So where will the money come from to pay for more court days, more judge time and the increased workload of defence and prosecution lawyers, to build new prisons to accommodate those prisoners who will be held for longer, to extend the Parole Board and to expand the probation service? I suggest, from cutting back on rehabilitation schemes, on which the emphasis should always lie.

The purpose of this group of amendments is to try to introduce some common sense to the scheme, so that not everyone who appears in court will have to go through the period of assessment of risk to the public. The list in Schedule 2 is simply a complete list of all violent offences in Part 1 and sexual offences in Part 2 that may attract a sentence of two years or more.

Is it indeed the Government's intention that the sentencing court should automatically carry out the process of assessment of risk to the public whenever there is a conviction for one of those offences? There are more than 60 violent and more than 40 sexual offences listed in the schedule. Or will it be for the prosecution to draw the schedule's provisions to the court's attention? Clause 220(3) makes it mandatory on a second conviction for one of the scheduled offences for the court to assume—presume—risk to the public, so that the burden of establishing that it would be unreasonable to make such an assumption falls on the defence.

The provisions contain a huge extension of legal work in court, imprisonment, Parole Board involvement and probation service work supervising licences—all very costly. We suggest that the emphasis is in the wrong direction.

Lord Carlisle of Bucklow

I strongly support what the noble Lord, Lord Thomas, said. The effect of the clauses taken together is bound to mean a substantial increase in the use of life imprisonment and in sentences of indeterminate length. In themselves, they are bound to increase the prison population. What is more, they are likely to have a knock-on effect on the length of sentences given for other offences of that nature.

I wonder whether the Government have really thought through the vast increase in the prison population that that could cause. I invite the Minister to tell us what estimate they have of its effect on the prison population, on cost and, as the noble Lord, Lord Thomas, says, on services such as the probation service.

While I am on my feet, perhaps I may raise another matter. If I understand the provisions correctly, if someone has committed a specified offence—which, as the noble Lord, Lord Thomas, said, is one of a numerous list to be found in the schedule—and, in the view of the court, it is a serious offence, the court is bound to consider whether there is a risk of serious harm to members of the public because of the possible repetition of that offence and, if it finds that there is, must sentence the person to life imprisonment if that is the maximum sentence. Equally, as I understand it, the court must make a public protection order if the maximum sentence is one of two years.

I am not sure about what is meant by Clause 216.1 ask this in genuine ignorance. Is it limited to offences for which the maximum would otherwise be 10 years' imprisonment? I ask that because Clause 216(2) states that if, the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life", and if the court, considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life". It then refers to, a case not falling within subsection (2)". Since a serious offence is described as one of the specified offences, and many specified offences hold a maximum sentence of less than 10 years—for example, assault occasioning actual bodily harm, with a maximum of merely five years—does that mean that someone convicted of assault occasioning actual bodily harm could be the subject of a public protection sentence, which would be an indefinite sentence subject merely to release by the Parole Board? I think that I am wrong in what I ask, but I would be grateful for clarification from the Minister.

3.30 p.m.

Lord Campbell of Alloway

Briefly, I wholly support what has been said by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle. There seems to be a most serious misunderstanding on the part of the Government on a much wider, general plane. The provision will result in a vast increase in the prison population. It is wrong for the Government to take any steps, even if they could be justified on any other grounds—frankly, I do not think that they are in this case. Until we have more prisons or acceptable prison statistics, and overcrowding has been addressed, the Government ought not to introduce that sort of legislation at all. Unless the Minister can give some form of concrete assurance that something will be done about the prisons which can accommodate the proposals, the Government should withdraw.

Baroness Kennedy of The Shaws

I, too, add my voice to those expressing concern about these parts of the Bill. The current position of Britain's prisons is nothing short of a scandal. The idea that the Government are adding to the shame of British prisons seems extraordinary. Sometimes when I ask how we can be travelling this road, I am told that the rationale is that we can empty the prisons only of people at the lesser end, and we can increase community service for offenders as an alternative to prison only if we are seen to be tough on those who commit serious crimes. The veneer is that we are tough in order to be kind.

That rationale is not good enough. Politicians should make the political weather. They should explain to the public why we need to reduce the numbers of people going to prison. The idea that we can justify that only by becoming punishers of an extreme kind at the serious end is ridiculous. This is about trying to justify what is sensible, rather than giving the strong, good argument that people with problems, such as drug addicts and alcoholics, need alternatives. Rather than arguing from a position of justice and strength, the argument will be, "Look at us, you cannot accuse us of being soft. Here we are being tough at the other end of the scale".

I ask the Government to take account of the fact that the provisions will ratchet up sentencing everywhere because the sentencing culture will become one of increase. Even if sentences are increased only at the serious end of crime, it will ratchet up sentencing everywhere. That is why the thinking is so profoundly wrong.

I wish to speak in particular about how such legislation affects the morale in prisons. It has not been taken into account that the increases will introduce to prisons the sense of hopelessness that comes with such incredibly long sentences, nor how it makes it difficult for prison officers to try to manage prisons.

I hope that the Government will think again on the matter. I do not believe for one minute that the public will be persuaded. The public are prepared and open to a much more nuanced, considered argument about what ought to happen to offenders and how they should be dealt with in our prison system.

Lord Hylton

The noble Lords, Lord Thomas of Gresford and Lord Carlisle, have rightly drawn attention to the financial and organisational costs that this chapter of the Bill will impose. The Government seem to be asking Parliament to write a blank cheque for unknown costs that might not be honoured because they will produce retrenchment and cuts in other parts of the Prison Service.

I shall concentrate on the human costs of the legislation—initially, from the prisoner's point of view. If he or she is faced with a long, fixed-term or indeterminate sentence, with no possibility of release, why bother to change? Why not just stay the same, and in a violent and dangerous condition?

Whole-life tariffs are likely to lead to individual despair and, very often, to suicide. The noble Baroness, Lady Kennedy of The Shaws, was right to ask about the legislation's effect on prison staff. Prisons will be severely tempted to become just warehouses of people. Staff will be able to shrug their shoulders and lay aside any attempt to get close to a prisoner, to help him forward or to help him to improve himself. The legislation is totally retrograde.

Lord Ackner

I wish to make the following point since the words "ratchet up" have been used, but I shall seek to develop it later. Schedule 17, to which we shall come in due course, ratchets up by 50 per cent or thereabouts the existing sentences for murder. They were the subject matter of guidelines issued by the Lord Chief Justice through a practice direction last year, after the Sentencing Advisory Panel had asked that the subject be addressed and the Lord Chief Justice had agreed the matter with the panel. He then communicated the resulting view to the Home Secretary, the Attorney-General and a third category. They made very slight alterations, and that was that.

As the Committee knows, Schedule 17 was produced as a conditioned reflex action by the Home Secretary to learning that, as a politician, he was no longer entitled to any say in how long convicted murderers should stay in prison. The figures that he has laid down—from whole life, to 30 years and then 15 years on the subjectively chosen categories of murder—increase those guidelines by about 50 per cent. The Home Secretary has totally overlooked the fact that the guidelines are part of a sentencing practice that covers all associated crime.

If the sentence for murder is increased by 50 per cent, the same approach has to be adopted for all other serious crimes. That has been totally overlooked by the Home Secretary. He talked about the delay factor, which applies in murder cases because those convicted would have had to do some time before their extended sentences came into operation. So, all serious offences have to go up by 50 per cent. That will render prisons totally inadequate to house those subject to those sentences and the cost of the measure will run into millions of pounds.

In Schedule 17, the Home Secretary has automatically ratcheted up by about 50 per cent the sentences for murder and all serious crimes in the teeth of sentencing guidelines that were issued by the Lord Chief Justice as a practice direction after having consulted with and got the concurrence of the Home Secretary and the Attorney-General.

Lord Carlile of Berriew

I agree with what was said by my noble friend Lord Thomas of Gresford and others about the merits of the clause. However, I wanted to add one point that relates to Clauses 215 and 216 and I hope that this is an appropriate time to make it.

If we have this new and, in my view, artificial category of serious offences for offences that already attract very significant sentences by judges exercising their daily judicial discretion, we will lengthen trials and the Crown Court process very considerably. No defendant faced with the possibility of a judge making a decision such as that provided for in Clause 216(1 )(b) as a result of the categorisation of a serious offence in Clause 215, would risk pleading guilty. No lawyer would advise him to take that risk.

We are not allowed to plea bargain in the Crown Courts of England and Wales—officially, at least. However, it is possible that the provisions would actually lead to a new form of illegitimate plea bargaining by counsel going into the judge's room to ask whether the defendant poses a significant risk to members of the public as provided for in Clause 216.

The Government, quite rightly in my view, complain about the length of time taken over Crown Court trials and that not enough people plead guilty. The Government constantly remind us, as do judges, of the discounts available to people who plead guilty. The introduction of these two sections, including the category of serious offences in Clause 215, will be completely counter-productive and will clog up the courts with serious cases. Do the Government want that?

3.45 p.m.

Baroness Scotland of Asthal

I will deal first with that last point made by the noble Lord, Lord Carlile. He said that the provisions may lead to lengthening sentences and an additional element of gaming. Of course, we expect—and my experience would promote the idea—that lawyers will continue to do that which they have always done with honour and integrity and advise their clients properly. If their clients disclose to them that they are guilty, I am sure that lawyers would continue to tell them that they must plead guilty. I hope that the noble Lord, Lord Carlile, was not seeking to suggest any impropriety in that regard.

Lord Carlile of Berriew

I am amazed that the noble Baroness could even imagine that I was. She knows from her own experience that, every day in the courts, defendants deny offences and their lawyers give them advice on their prospects of acquittal. The nature of the advice given to those clients depends upon the statutory provisions that this Parliament imposes on the courts. No responsible lawyer, in giving advice, would fail to give account to the full range of statutory provisions, including those relating to sentences.

I remind the noble Baroness that it is commonplace in murder cases for defendants to be advised— completely properly and honourably by their counsel whether to plead guilty, according, in part, to their prospects of acquittal of murder and conviction of the alternative of manslaughter.

Baroness Scotland of Asthal

I hear what the noble Lord says. Perhaps this is not the appropriate moment to enter into a detailed debate with him on those issues. However, in relation to dangerousness, the whole point of Clauses 215 and 216 is the protection of the public. In some cases, the assessment of dangerousness will be critical. It is not proposed that these provisions will extend improperly the investigation of those issues.

To take up the points made by the noble Lord, Lord Thomas of Gresford, the increase in the information that would be before the courts will enable them to come to a better informed judicial assessment about the precise nature of the offender and the offending pattern of behaviour and seek to address those properly. I say this as clearly as I can: by introducing these provisions, it is not the intention of the Government to accelerate or exacerbate the prison population. However, we do intend to ensure that a just result is available when dealing with these matters.

Of course, I accept what the noble Lord, Lord Dholakia, said about the nature of Amendments Nos. 195AA, 195AB, 197A and 197B because they are probing amendments. I will therefore not deal with their precise detail, but I will deal with them generically. The alternative definitions put forward in the amendments would create a higher threshold for the dangerousness provisions, thus potentially jeopardising the safety of the public. We will accordingly resist them. All sexual and violent offences listed in Schedule 12 carrying maximum penalties of 10 years or more are sufficiently serious to attract this sentence. The decision about whether the sentence of public protection will be passed will still be dependent on whether the court considers that the definition of dangerousness is met in each individual case.

Amendments Nos. 195AB, 197A and 197B have been crafted so as to restrict the automatic assumption of dangerousness to offenders with one or more previous convictions for offences of a serious sexual or violent nature. We have considered the matter carefully, and we think that any offender who appears before a court for a second sexual or violent offence must be considered a threat to the public, regardless of whether the offences were of a serious nature. Restricting the provisions to offences of a serious sexual and violent nature could result in dangerous offenders being sentenced to a determinate rather than indeterminate sentence, thus causing an unnecessary risk of harm to the public. It is for that reason that the amendments should be resisted.

The Bill provides a valuable safety net. to ensure that all offenders convicted of two relevant offences are assumed to be dangerous, prior to the passing of the sentence. We also hope that it will have a deterrent effect on offenders convicted of a single relevant offence, as they will know that, if they commit a second relevant offence, they will also be assumed to be dangerous. However, the clause allows the court to disregard the assumption of dangerousness in cases in which it considers it, on the basis of all the evidence, to be unreasonable. We will still have the safely net provided by the proper exercise of judicial discretion.

Amendments Nos. 195AC and 195AD would remove certain violent offences from the list. It may be right to take the opportunity to say that including an offence on the list of specified offences does not automatically mean that conviction of one of those offences will result in the passing of one of the new sentences for dangerous offenders. In all cases in which an offender is convicted of a trigger offence, it will be up to the court to decide whether the offender poses a significant risk of serious harm to members of the public through the commission of further specified offences. If the court considers that the offender does not pose such a risk, it may not pass one of the new dangerousness sentences. We are talking about violent and potentially life-endangering offences that carry severe penalties, ranging from three years' imprisonment for affray to 10 years for rioting. It is right that the court should have the option to impose such a sentence on those convicted of such offences to protect the public from potentially dangerous offenders in cases in which it is necessary. For those reasons, I cannot accept the amendment.

The noble Lord, Lord Thomas of Gresford, and others asked about the cost and the position of the Parole Board. The Parole Board will no longer deal with release decisions relating to prisoners who are serving determinate sentences of 12 months or more— the non-dangerous offenders. It will deal only with dangerous offenders, which will, we hope, balance its workload. The courts already assess dangerousness under Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and current extended sentences. It is right that those provisions should provide a helpful element of clarity, distinguishing offences that need greater attention from those that are less serious.

My noble friend Lady Kennedy of The Shaw 5 asked about the effect on prisons. The noble Lord, Lord Hylton, also referred to the Prison Service. It is right for me to share with the Committee the feelings of many working in the prisons about the changes that we are making. It is not just a matter of lengthening sentences. The Committee will know that prisons up and down our country are asked to do some things differently. Prison officers have told me, when I have had the advantage of meeting them, that they welcome the changes, including the increased use of risk assessment, from the moment at which the prisoner arrives in prison, and the increase in case management—we will continue with that—so that, once we have assessed the risks for the prisoner, we can assess the sort of things that we need to do with him. We now have a better case management and progression process with regard to discharge. We have the New Deal elements going in. People are considering the sorts of job that the prisoners can do and are planning their discharge in a better way. Jobcentre Plus is going into many of our prisons and making a difference. When I visited Bristol prison recently, I got from the prison officers a clear indication that they welcomed the emphasis that we put on trying to rehabilitate prisoners through drug treatment and the other things that are being done to mitigate the problems.

I say to my noble friend that, far from depressing prison officers, the things that the Government are doing seem to be cheering them up. We have got balance. In these provisions, we are trying to maintain a proper balance.

The noble and learned Lord, Lord Ackner, my noble friend Lady Kennedy of The Shaws and the noble Lord, Lord Hylton, talked about the ratcheting-up effect. The noble Lord, Lord Thomas of Gresford, may also have spoken about that. The upward effect on the prison population is balanced out by the automatic release provisions at the halfway point for other sentences of 12 months or more. The structure that we have put in place for rehabilitation, custody minus, custody plus and the intermediate sentences gives us a balanced portfolio.

The noble Lord, Lord Carlile of Berriew, made some points about Clause 216. Clause 216 applies to serious offences that carry a sentence of 10 years or more. Indeterminate sentences are available only for offences carrying sentences of more than 10 years, including life. The life sentence is available only for offences carrying life imprisonment. Clause 218, which relates to extended sentences, covers offences carrying sentences of two years or more but under 10 years. All the provisions are designed to deal with those who are or may become a danger to the public and need specific and special attention, if the public are to be kept safe. We think that we have got the balance right, and we do not believe that the provisions will lengthen trials, as some fear, or that they will have the overall impact of ratcheting up other sentences.

The Committee will know that murder and other serious offences tended to be in one category. The Sentencing Guidelines Council will have an important role in setting the boundaries for the other offences. The way in which the system is integrated will enhance the sense of security, give the courts a better grasp of the facts needed to come to an informed decision and enable us to discharge with a greater degree of certainty and security those who are not a serious threat to the public and do not create any concern about dangerousness. We will be able to monitor more effectively those who present such a danger.

I hope that, with that explanation, noble Lords will not pursue the amendments.

Lord Thomas of Gresford

The noble Baroness has been good enough to reply to many of the points that I made, but I would be glad to know whether the Government have made any assessment of the additional pressure that there will be on prison spaces. By how much is the prison population expected to rise? If that assessment has been made, will the noble Baroness say how much this will cost and where the money will come from? If it has not been done, why has it not been done?

Baroness Scotland of Asthal

As I have said on several occasions, the provisions cannot be considered in isolation. They must be set against the other provisions that will relieve some of the pressure on the prisons. In my answer, I mentioned charging with conditions, custody minus—the new enhanced form of suspended sentence, along with other conditions— custody plus and intermediate sentences. All those measures should have a direct effect on what we seek to do.

Contrary to the noble Lord's fear and to what my noble friend Lady Kennedy said about rehabilitation, Members of the Committee will know that the whole thrust of what we have done is to make it clear that every intervention with any individual who comes into contact with the criminal justice system has a meaning. From the moment a person first offends or first appears before the criminal justice service, he or she will have an intervention which will include an opportunity for rehabilitation, restoration and restitution. It is to be hoped that then there will be a situation in which only those who absolutely need to be in prison because of safety and security reasons are there.

All those factors have been taken into account. The Government have made an assessment. We appreciate that additional resources will be needed in relation to probation and that we will have to fashion things differently. I have also made it clear on a number of occasions that we accept the provisions will be staggered over a period of time in order to ensure that they work well. In the Bill, we are seeking to provide the framework which will apply. We will be able therefore to do that which we all aspire to do; namely, to have those who can be rehabilitated rehabilitated, and to have those who need a significant period in custody to come to a realisation of the seriousness of their offences to have an opportunity to do that. Subsequently, if and when offenders are released, they will have a programme that will enable them to make the best use of their release and rehabilitation back into the community. It is to be hoped that they will not reoffend and cause further difficulty, pain and anguish to members of the public.

Lord Campbell of Alloway

Is the noble Baroness aware that, in error, she failed to answer the crucial question posed by the noble Lord, Lord Thomas of Gresford, which goes to the heart of the question of the prison population. I do not need to repeat it; I took the point with others. Has there been that assessment? Has there or has there not? That is one question. If there has not, why not? That is the other question. It is crucial to a determination of the matter which concerns so many of us who have spoken today.

Baroness Scotland of Asthal

I apologise to the noble Lord, Lord Campbell of Alloway, if he considers that I have not answered the question. In fact, I have answered the question now on three occasions. We have made assessments. We have taken into account all those matters. We believe that these provisions are deliverable within the context of the assessments that we have made.

Lord Carlisle of Bucklow

The noble Baroness has been very kind in dealing at length in answer to the question that I asked her about the clause. Is she saying that, under Clause 218, if a person is convicted before the magistrates' court of assault occasioning actual bodily harm—which she will know can cover a broad range of offences, however low in the order of assault occasioning bodily harm it is—and if it is thought that there is the possibility of a further offence being committed, the court must make an extended sentence order? Is that the position?

Baroness Scotland of Asthal

The emphasis is not "must" make an extended sentence order. The court has a discretion to consider the level of dangerousness presented by the offender and it must make that assessment. It does not mean that the court must impose an extended sentence on the offender, but it must consider the issue of dangerousness.

Lord Dholakia

I thank the Minister for her reply. As I said earlier, these are probing amendments. Certainly, we shall study in greater detail what she said, consider the implications and perhaps come back on this matter on Report. I thank Members of the Committee who have spoken about the impact of such policies on prisons. This morning a number of Members of the Committee were at the preview of a Channel 4 production on the impact of long and life sentences on people. We are faced with a desperate situation, which must weigh heavily when one looks at the provisions that the Government are making in this clause.

Despite what the Minister said, the situation does not sound very promising. Despite all the positive initiatives that she has spoken about, the prison population is still unacceptably high at 72,000 plus. As one very senior prison officer said to me this morning: "If only we could control the prison population".

In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 195AB not moved.]

Clause 215 agreed to.

Schedule 12 [Specified offences for purposes of Chapter 5 of Part 12]:

[Amendments Nos. 195AC and 195AD not moved.]

Schedule 12 agreed to.

Clause 216[Life sentence or imprisonment for public protection for serious offences]:

The Deputy Chairman of Committees (Lord Geddes)

Before calling Amendment No. 195B, I should advise the Committee that if it is agreed to I cannot call Amendment No. 195C due to pre-emption.

Baroness Anelay of St Johns

moved Amendment No. 195B: Page 127, line 7, leave out from "a" to end of line 9 and insert "substantial risk of his committing further specified offences involving a significant risk of serious harm to members of the public The noble Baroness said: In moving Amendment No. 195B, I shall speak also to Amendments Nos. 195C to 195H and Amendments Nos. 196 and 197. Amendment No. 195B is also supported by the noble Lords, Lord Dholakia and Lord Thomas of Gresford, Amendment No. 196 is supported by the noble Lord, Lord Dholakia, and Amendment No. 197 is supported by the noble Baroness, Lady Walmsley.

The purpose of the amendments in this group is to develop in detail the arguments of principle which have so clearly been put during debate on the previous group. Perhaps I may remind Members of the Committee that throughout this part of the Bill, I have agreed to an unusually large grouping of amendments in order to assist the Government with their business on the Bill. We have reached yet another highly contentious part of the Bill, as evidenced by our debate. I undertake that where I do not have to speak because all has been said, I shall try to restrain myself, which is why I did so in the previous group of amendments.

Much of the underlying principle has been laid out well. I note that if Members of the Committee continue to feel as strongly on other groups of amendments, in order that we complete Part 12, we will be here at 7 a.m. That is not to curtail discussion. It is merely to give an example—I notice that the Government Chief Whip is on the Front Bench—that there is insufficient time for this part of the Bill on the Floor of the House.

All my amendments relate to Chapter 5, which contains the sentencing framework for dangerous offenders. Amendment No. 195B is identical to an amendment tabled in another place by my honourable friend. It relates to the precise wording of the definition by which the possibilities of a life sentence or the new sentence of imprisonment for public protection are to be triggered. Before imposing such a sentence, Clause 216 states that the court must first be of the opinion that, there is a significant risk to members of the public of serious harm". as a result of the offender committing further specified offences.

The way in which the court is to make that assessment is set out in Clause 220, to which reference was made briefly in the previous debate. In another place, there was some discussion about the wording of the provision and whether it provides a clear and precise enough definition of the threshold. The then Minister, Mr Hilary Benn, stated that there was, not a big difference for the purposes of interpretation".— [Official Report, Commons Standing Committee B, 11/2/03; col. 930.], between the terms "significant" and "substantial".

I beg to disagree. In its helpful briefing, Justice stated: … the term 'significant'… is not sufficiently precise in view of the grave consequences of a finding. What approximate level of probability, on a scale from 1 to 100 is 'significant'? It would be preferable, and more closely in tune with human rights law, if the term were 'substantial'". I agree. That also reflects the position taken by some of the other interested organisations which have briefed Members of the Committee. I am sure that the last thing the Home Secretary would wish for is that the courts declared the legislation incompatible under the Human Rights Act 1998. Do the Government believe that the test set out in the Bill is both appropriate and Convention-compliant? What consideration have they given to this matter over the past eight months since it was raised in another place?

Amendment No. 195C relates to the phrase, "members of the public". The threshold for a life sentence or indefinite detention for public protection is crossed if "members of the public" might be exposed to harm from the offender. My amendment suggests a different form of words, any person or class of person". I have tabled this simply because, when I first read through the Bill, I felt that the phrase "members of the public" is potentially too vague a test.

Let us consider the following situation. A person is convicted of attempting to murder their spouse, with a history of domestic violence against that spouse and a previous spouse, but with no previous relevant convictions. Clause 220(2) would apply and there would be no presumption that such a person posed a risk to the public. Indeed, the court would not be obliged to take into account the history of domestic violence, which is a matter pertinent to Amendment No. 195H. Could the court conclude, when applying the test set out in the Bill, that such a person poses a risk to members of the public? Is that the Government's intention here? As I have said, could they be a risk to the public because the two people to whom they have been violent are both members of the public? How far does the definition go?

Amendments Nos. 195D and 195E probe the extent to which the Bill will alter the existing arrangements for repeat serious sexual and violent offenders. I am sure that the Minister and her Bill team were not in the least surprised to see this amendment. The previous arrangements were set out by both Houses in the Crime (Sentences) Act 1997 and consolidated into Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. That is, of course, the "two strikes and you're out" life sentence for a second, serious offence such as manslaughter, rape or armed robbery. That provision is to be repealed by this Bill. I would be grateful if the Minister could clarify the position in relation to offenders who would have received a life sentence under that provision. Will such offenders still receive life sentences or the new sentence of imprisonment for public protection purposes under the provisions set out in this Bill?

As I read it, it would be possible for an offender convicted of two serious armed robberies, to whom a presumption in Clause 220(3) would therefore apply, then to contend that it is unreasonable for the court to consider that offender as posing a risk of serious harm to members of the public generally and therefore he or she should not receive a life sentence or a public protection sentence. What would happen in such a case?

Amendments Nos. 195F and 195G raise similar issues, the first in relation to over 18 year-olds and the second to those aged under 18. Those convicted of what the Bill terms "specified offences" other than "serious offences" will not be eligible to receive life imprisonment or public protection penalties. To that end, Clauses 218 and 219 provide for the imposition of extended licence periods on such offenders where it is necessary for public protection. These offenders could not be convicted of specified offences such as Section 20 wounding, violent disorder or possessing indecent photographs of children.

Subsection (4) of both the relevant clauses specifies that the period of a licence extension is limited to five years for violent offences and eight years for sexual offences. The maximum period for violent offences remains the same as set out in existing legislation and the noble Baroness further explained in her response to my noble friend Lord Carlisle of Bucklow the implications of that; they need not be repeated.

My amendments have been tabled to ask the Government whether these restrictions are necessary. Why not simply allow the courts to impose an extended licence period up to the maximum sentence for the offence, which is what subsection (5) in both clauses provides for, and leave it at that? What are the reasons for imposing further restrictions on the court's powers?

Finally—this is a large group of amendments and we have only one other mega-group of amendments to deal with—Amendments Nos. 195H and 196, by changing "may" to "must", would oblige the courts to take into account patterns of offending behaviour and information about the offender when considering whether those who commit specified offences, but have no previous convictions or are aged under 18, cross the dangerousness threshold. The Bill specifies that the circumstances of the offence must be taken into account, but that the court will then have discretion on the other two elements to which I have referred. Are these also not highly relevant, in particular in the case of juvenile offenders? Why do the Government use "may" rather than "must" here?

I should point out that Amendments Nos. 196 and 197 were specifically tabled in response to a request and briefing from the Children's Society. Amendment No. 197 concerns the treatment of juvenile offenders who have been convicted of one of the offences specified for the purposes of Chapter 5. I shall welcome the Government's views on all these matters. We have not been able to hold before today the meeting proposed by the Government on the treatment of children throughout the Bill, so these amendments are essentially probing in nature, although the rest are not necessarily so. With regard to issues surrounding children, however, of course I am not in a position to proceed further today. We must not only hear from the Minister, but also take the opportunity, together with other noble Lords, to meet the Government. I beg to move.

4.15 p.m.

Lord Renton

While supporting the amendments of my noble friend Lady Anelay, so far as they go, I feel bound to point out to noble Lords that Chapter 5, dealing with so-called "dangerous offenders", breaks new ground in our system of justice. Up to the present and for hundreds of years, imprisonment has been imposed for offences already committed. Of course, when an offender has committed one offence, there is always the risk that he will commit another. However, sentences have always been regarded as providing protection to the public in respect of an offence already committed because it is the hopeful assumption that, if the sentence is severe and realistic enough, no further offence will be committed.

In Chapter 5, and especially in Clause 216, we find that imprisonment is to be imposed not only for offences already committed, but also because of the risk of another offence which may never be committed. That could lead to imprisonment for life for a person aged 18 years or over. It may be that I am not imaginative enough, but looking at this as a matter of principle and in the light of the long experience of our courts, it is something that we should be very reluctant to bring about by legislation.

As I said at the beginning of my remarks, to an extent, the amendments proposed by my noble friend bring a little sense and justice into this matter, and for that reason I support them. But I ask noble Lords to consider this matter still further, in particular since in a later clause we find that people who have not yet reached the age of 18 can be dealt with in a somewhat similar manner. We must be careful.

Lord Carlile of Berriew

I, too, support these amendments on the grounds that almost anything that mitigates the rigour of these clauses is to be welcomed. When she responds, will the Minister explain to the Committee why the Government no longer trust the judges9 When they came into office, I was foolish enough to hope that the new Government would give the judges the tools the) needed to have a full range of sentences available, and then trust them to pass appropriate sentences subject to the normal appellate procedures. The Committee will know that where a serious offence is committed and the judge passes a seriously inadequate sentence, an appeal is available to the Crown. The number of Attorney-General references to the Court of Appeal has increased exponentially as the years have gone by and in 2002 there were in excess of 100 relating to sentences which the Crown Prosecution Service considered inadequate.

The Government have taken the opportunity to increase maximum sentences—there are many offences for which the maxima have been increased— but there is very little evidence indeed that judges have passed inadequate sentences Many of the references made to the Court of Appeal have resulted in it rejecting the prosecution's appeal against the sentence passed by the judge.

These clauses refer to offences for which judges have considerable powers of imprisonment. Clause 215(2) defines a "serious offence" as one punishable by imprisonment for life or imprisonment in excess of 10 years Why is it not enough for the judge to exercise his discretion within those maxima?

I am not exaggerating when I say that much of sentencing law is becoming a macabre parlour game which judges are required to play when trying to thread their way through sentencing provisions which remove their discretion. If one takes the example of violent robbery, how is a judge, applying the provisions of Clause 216 with intellectual rigour, to conclude that because a person has committed a violent robbery once there is not a significant risk of that person committing a violent robbery in the future? This is not three and out or two and out; it has the potential of being one and out.

I regret to say that these provisions have all the hallmarks of Kafka by the rules of cricket. I urge the Government to return to a system which is good enough to give the judges the equipment they need when sentencing but does not impose unrealistic obligations on them which will result in the Court of Appeal Criminal Division trying to weave its way through these provisions to do substantial justice, and Ministers once again attacking the judges, not on their merits but on the basis that bad laws have been introduced.

Lord Waddington

I doubt whether these clauses break new ground in the way suggested by my noble friend Lord Renton. In the old days judges could pass a sentence of preventive detention. What happened then was that the very fact that a person had committed a number of offences meant there was a risk of him committing further offences, and therefore the judges were entitled to pass a sentence of preventive detention. So to that extent these clauses are better than that old law because at least some assessment of risk has to be made. An assumption is not made that there must be a risk simply because there have been a number of previous offences.

I agree entirely with my noble friend that "substantial risk" is a much better form of words than "significant risk". "Significant" means anything that is not insignificant. "Substantial" means "great". I believe that there should be a great risk rather than a risk which is not insignificant.

Baroness Scotland of Asthal

It may be necessary for me to say a word or two about the history. I have listened to what was said by the noble Lord, Lord Renton, and I feel that there may not be a proper understanding of the root from which these provisions have sprung.

The Committee will know that a disparate set of provisions for the sentencing of dangerous offenders has been added to the statute book over a period of years. There are provisions for extended supervision periods for sexual and violent offenders and, where public protection issues are apparent, the court may impose longer than commensurate custodial sentences for offences that would otherwise not warrant them. That is the structure that we have now, which can be found in various Acts.

The creation of a new sentence specifically designed for offenders who have been assessed as dangerous by the courts was a recommendation of the Halliday report. The report identified a lack of disposal for offenders who had committed offences which do not carry life but who, nevertheless, have a high risk of committing a further offence that would cause serious harm to the public. Consultation on the Halliday report found strong support from the police and probation services for new sentences specifically designed for dangerous offenders. They welcomed a sentence which would limit the premature release of dangerous offenders.

So, in answer to the concern raised by the noble Lord, Lord Renton, and others—the noble Lord, Lord Waddington, is right to remind the Committee that the previous position was somewhat more complex—that is the root of what we are trying to achieve under Clause 216. We are trying to make sense of that which went before and to produce coherence in the way in which it is applied.

I hear what the noble Lord, Lord Carlile, says. Time and time again I have heard the refrain, "Why do we no longer trust the judges?" I cannot recall how many times I have said this but I am very happy to say it again: we do trust our judges. They are deserving of our admiration and our support. The judges in this country are among the very best in the world and I give no quarter to anyone who says differently. We are right to be proud of them.

On each and every amendment dealing with issues on which noble Lords want to be more restrictive—I know that the noble Lord, Lord Carlile, has been with us in part but not on each and every occasion and so has not had the benefit of listening to me say this over and over again, which I am happy to do—

Baroness Anelay of St Johns

Perhaps the Minister would indicate whether she is referring to the noble Lord, Lord Carlile of Berriew, or to my noble friend Lord Carlisle of Bucklow.

Baroness Scotland of Asthal

I am referring to the noble Lord on the Liberal Democrat Benches. I tend to get confused as to which noble Lord is "Bucklow" and which one is not. Perhaps I should say that the noble Lord, Lord Carlile, who sits comfortably on the Liberal Democrat Benches, is not always with us and the noble Lord, Lord Carlisle, who sits on the Tory Benches, is almost never without us. We very much rejoice at his presence in all our deliberations.

So that is the history. In this case, it is quite clear that, once again, we will be totally dependent on our judges to exercise their discretion in determining, in accordance with the structure, whether or not a defendant is dangerous. The Bill sets the framework. What we ask our judges to do—and they do it splendidly—is to exercise that discretion so that justice can be done. I hear what the noble Lord says about Kafka. I am sure that he enjoys the rhetoric, but that is far from the reality.

Let me now turn to the amendments and deal with the points raised by the noble Baroness, Lady Anelay. I say straightaway that the Bill is compliant. The Government are content that its provisions comply with all propriety to the ECHR.

Amendment No. 195B seeks to alter the threshold of dangerousness which must be met in order for a life sentence of imprisonment for public protection to be passed by the courts. The alternative test proposed by Amendment No. 195B would require the court to focus upon the risk of the offender committing a further specified offence involving a risk of serious harm to the public. As my right honourable friend in another place said, there cannot be a possibility of significant risk to the public if there is no risk of a further offence being committed. However, this does not mean that the risk of reoffending should become the basis of the assessment of dangerousness, as is proposed by Amendment No. 195B. Rather, the central element of the test of dangerousness should be the risk to the public of serious harm through the commission of a further offence.

The whole purpose of the test is to establish whether an offender is dangerous or no. In making such a judgment, the court must focus primarily on the degree of risk of harm that any future offending may pose as opposed to the risk of reoffending itself.

Amendment No. 195GA also attempts to alter the threshold for the test of dangerousness. This amendment would raise the threshold by requiring the courts to establish that the risk to members of the public of serious harm occasioned by the commission by the offender of further offences was a substantial risk rather than a significant risk. We think that "significant" is the proper test. The court will then be put on inquiry whether it is satisfied about the dangerousness. It can exercise its discretion and make that judgment. It is the assessment of the risk and the risk to the public that we are trying to direct attention to.

4.30 p.m.

Lord Waddington

What does significant mean? Am I not right that significant means "not insignificant"? It is a very small test to pass.

Baroness Scotland of Asthal

We do not think it is a small test, we think it is an appropriate test. I appreciate that noble Lords opposite are saying that they wish to set a very high threshold by saying that the risk should be substantial. If there is a significant risk to the public, we think that that gives rise to the court addressing the risk and determining whether it is appropriate or proper in a particular case for these extended or different provisions to prevail. It does not oblige the court to do so; it just raises the issue that it has to consider.

Baroness Kennedy of The Shaws

May I point out to my noble friend the Minister the irony of a former Home Secretary, who was no pussycat, let me tell you, when it came to law and order, and was known to be tough on crime—I say that respectfully about the noble Lord, Lord Waddington—putting his restraining hand on the shoulder of a Labour Government?

Baroness Scotland of Asthal

I thank my noble friend for pointing that piece of history out to me—it would obviously have escaped me had she not done so.

Lord Alexander of Weedon

If I apologise to the Minister, perhaps I may make a rather more prosaic point than the eloquent one just made. My memory is that in the days when we were allowed to use Latin in court, it was said that anything was significant which was more than de minimis. Does the Minister subscribe to that view?

Baroness Scotland of Asthal

I think we could bandy words on that, too. I think "significant" means important. "Significant" is certainly different from "substantial". I have already said that I accept that by substituting "substantial" for "significant", noble Lords are seeking to raise the threshold to a higher level. I have sought to say that if there is a significant risk of harm, that puts the court on inquiry to exercise its discretion. The decision made by this Government is that that is the appropriate test and it is the appropriate entry into the consideration. There is clearly a difference between what noble Lords opposite would like and what the Government propose.

Lord Thomas of Gresford

With respect to the Minister, she says there is a great difference, but we do not understand where the Government stand. She has used the words "the degree of risk". She was invited by the noble Baroness, Lady Anelay, to give on a scale of 1 to 100 what she regarded as significant What is it— 10, 20, 30? What degree of risk, to use the Minister's own words, is she referring to?

Baroness Scotland of Asthal

I have been harried on a number of occasions about trusting the judges. A significant risk is one which is significant. It will be a matter for the judge to determine when considering that risk whether it is present or not.

As I have said for the fourth, if not the fifth, time: there is a difference between "substantial" and "significant". I have accpted that "substantial" is greater than "significant". We think that if there is an important issue— if there is an important risk, a significant risk—that should put the court on inquiry to consider whether this person should properly be described, according to the criteria, as "dangerous". That is the difference between the way in which the Government put it and the way in which other Members of this House have put it.

It is invidious to use a scale from 1 to 10. What if I say "significant" is at 6 and substantial at 9, while other people say "significant" is at 5 and "substantial" at 7? There is no point in bandying words in that way. It is a bit like an elephant —it is difficult to describe but you know one when it is charging at you. I do not think that the courts will have any difficulty in making those definitions.

Lord Carlisle of Bucklow

Would the Minister agree that it is important for the following reason? These are offences for which, in any event, the court can, if it wishes and thinks proper, pass a sentence of life imprisonment. If it finds that there is a significant risk, the Bill goes on to say that it "must" pass a sentence of life imprisonment. Surely, therefore, if you have the difference between the discretion of a judge in deciding whether life imprisonment is right and the requirement that the court "must" impose lite imprisonment, the test that should be passed must be a substantial one rather than merely significant.

Baroness Scotland of Asthal

The noble Lord is right to point out the importance of this. If the court is satisfied that there is a significant risk that the individual will go on and commit offences causing serious harm to the public, I hope that noble Lords will agree with me that that is a very important decision for the court to take. It would have to be satisfied on evidence that that risk really was significant. Only if it was so satisfied would the court then deal with that matter.

Noble Lords will know as well as I do how jealously our judges properly look at these issues in order to be just and to be fair. Nothing in these provisions would inhibit the court from so doing. We think that it would be an appropriate course to take. When we consider the interests of the public protection, it is right for an offender who has committed a sexual or violent criminal offence and poses a significant risk to members of the public of serious harm to be deemed by the court to be dangerous. We do not wish to place the public in a position of greater risk from potentially dangerous offenders by raising this threshold unnecessarily.

Amendment No. 195C suggests a minor drafting change to the definition of dangerousness for the purposes of passing the new sentence of public protection. The terminology in the test, as currently drafted, is consistent with the drafting throughout of Chapter 12. We believe that "members of the public" is the appropriate phrase to use—it is better and easily understood. We do not think it would cause unnecessary difficulty.

Amendment No. 195D seeks to retain a reference to provisions in the Powers of Criminal Courts (Sentencing) Act 2000 for a life sentence to be passed where a second serious offence has been committed. Amendment No. 195E makes a small drafting change in conjunction with Amendment No. 195D. The life sentence provisions referred to at Section 109 of the Powers of Criminal Courts (Sentencing) Act are repealed by the Bill, but the principles behind them are incorporated into, and extended by, the automatic assumption of dangerousness in Clause 220(3).

Under the new provisions, any offender who has been convicted of a second sexual or violent trigger offence in Schedule 12 will be assumed to be dangerous by the court unless, on the basis of all the evidence before it, the court considers the assumption to be unreasonable. Where an automatic assumption of dangerousness is made, the offender must be sentenced to either the extended sentence or the sentence for public protection. Release from both of these sentences is dependent upon thorough risk assessments, and offenders may be detained for as long as they pose a risk of harm to the public.

Therefore Amendments Nos. 195D and 195E should be rejected because the automatic assumption of dangerousness provisions provide a higher level of public protection than the automatic life sentence provisions, as they apply to a far greater range of sexual and violent offences. Those amendments would also be unhelpful in retaining a reference and preserving the effect of a repealed provision.

Amendments Nos. 195F and 195G would remove the maximum time limits for periods of extended supervision that may be added to the new extended sentences for dangerous offences. The amendments cannot be accepted because they would provide for indeterminate extended supervision periods that could have no practical effect due to the legal principle that no sentence may exceed the maximum penalty of the offence for which it is being imposed. The extended sentence is available, in the case of adults, only for offences carrying a maximum penalty of less than 10 years. Therefore the maximum extended supervision period that may be added must be less than 10 years, illustrating the impracticality of Amendment No. 195F. However, I know that the noble Baroness, Lady Anelay, is simply putting those skittles up to understand how the Government will deal with and dispose of them.

Similarly, although the extended sentence for dangerous juvenile offenders may be passed for offences carrying higher penalties, the length of the maximum extension period must be specified in order to provide legal clarity. Therefore, I hope that the noble Baroness will understand why it is impossible for us to accept Amendment No. 195G.

Amendments Nos. 196,195Hand 197 would require the courts to take into account additional information about the offender, the pattern of behaviour of which the offence forms a part and the offender's welfare and rehabilitation needs when undertaking the assessment of dangerousness. While the Government are wholly committed to upholding the welfare of children, that must be balanced against the need to protect the public. The objective of the dangerousness assessment is to establish whether the offender poses a significant risk of serious harm to the public. In order to determine whether the risk is present, the court is required to take into account all the information about the nature and circumstances of the offence. It may also take into account additional information about the pattern of behaviour of which the offence forms a part, and the offenders themselves.

Requiring the court to take into account all additional information concerning the pattern of behaviour of which the offence forms a part and the offenders, including their welfare and rehabilitation needs, as is suggested by Amendments Nos. 196, 195H and 197, would detract from the purpose of the dangerousness assessment. The additional information may not be relevant for the purposes of assessing risk, and its inclusion could undermine the relevance of any significant risks posed, thus potentially jeopardising the safety of the public.

We believe that Amendment No. 197 is unnecessary, too, because there is already provision in the Children and Young Persons Act 1933 which requires courts to have regard to the welfare of juveniles when sentencing them. That is there, and nothing that we say here will detract from that.

We have tailored sentences to meet the requirements for juveniles. The court will not be obliged to pass an indeterminate sentence for a serious offence, but will have the option of an extended sentence. That comment relates to the whole piece—it does not compel but requires courts to consider and make assessments and to exercise judicial judgment whether any or all of those terms are met.

4.45 p.m.

Lord Ackner

Will the Minister help me? This is a genuine cri de coeur, because I find that my recollections become daily more atrophied. However, the noble Lord, Lord Carlisle of Bucklow, may be able to help me.

Some 25 years ago, was there not a departmental committee set up by the Home Office and presided over by the noble Lord, Lord Carlisle of Bucklow? I know that I was unofficially asked to go on it, but the Lord Chief Justice in his wisdom put someone else there instead. The committee produced something called a "reviewable" sentence, which meant that, when there was a suspicion about the balance of the person and that he might commit further offences, a determinate sentence was passed as was appropriate, but it was made reviewable every two or three years, and the decision was made by a committee.

My recollection is a little clearer as regards an inquiry that took place five, six or seven years ago, under a silk on my circuit called Peter Fallon QC, into a case in which someone who was let out at the end of a determinate sentence killed again. My recollection is that Peter Fallon QC made a recommendation similar to the need for a reviewable sentence of the kind that emanated from the Home Office some 25 years ago but which has been totally neglected. Had that option been considered by the Home Secretary or the Home Office, it might have solved many of the difficulties that have arisen.

Lord Carlisle of Bucklow

The noble and learned Lord, Lord Ackner, is partly right and partly wrong. I did chair a committee that reviewed the parole system. He is right in believing that he was not a member of it and that the Lord Chief Justice named the judge who was a member. We were limited to considering parole, however, and what we recommended was what has been the position since—that all those sentenced for up to four years should be released automatically at the halfway stage. Those people would be under supervision for the rest of their sentence to the two-thirds point, in the normal way. They would be liable to be returned to prison if, at any time during the whole period of the original sentence, they committed any other offence. Beyond the four-year point, we recommended that they should be reviewed regularly by parole. We did not suggest a two-year review as such.

Lord Ackner

I do not want to fall out with my noble friend, but I am referring to something that occurred well before that. The person who sat was David Croome Johnson. I may have been wrong about the chairmanship, but the committee produced a reviewable sentence. I am quite clear that Peter Fallon QC adopted something similar. I wondered whether that option had been given any thought, as it is obviously a potential solution to the type of problem that we are discussing.

Lord Dholakia

Before the Minister answers that question, does she consider that the sentences proposed under this clause represent a massive leap in the restriction of children's liberty and introduce a mandatory element for a wider range of offences? It is hard to see how these new sentences meet the UK's obligation under the United Nations Convention on the Rights of the Child. Is the Minister aware that the UNHCR expressed concern about the increasing use of custody for children, especially young children, and their treatment in captivity?

Baroness Scotland of Asthal: I say to the noble and learned Lord, Lord Ackner, that I have certainly seen no evidence of atrophy although 1 confess that daily I see evidence of my own.

I cannot tell the noble and learned Lord whether the particular report to which he referred has been taken into account. I certainly undertake to ascertain whether it has. The Committee will know that the Halliday report took into account all that had gone before, reviewed the known position and the research and made recommendations on that basis. Therefore, I would be surprised if those reports did not form part of the considerations and deliberations that Halliday entered into. That is why I said in answering the earlier group of amendments—but it is equally important as regards this group—that the whole purpose of this clause was founded on the recommendations of the Halliday report. It identified a specific lacuna in terms of dangerousness; namely, that there are those who should properly be dealt with for the offence for which they come before the court but who constitute an element of dangerousness to the public which needs to be taken into account before they can be safely discharged into the community. We suggest that the new sentence seems to achieve that relatively well.

Lord Ackner

Fading memory is beginning to clear slightly. The committee was under the chairmanship of Lord Butler, the then Home Secretary, I think. I should have thought that my noble friend Lord Renton might remember that but it certainly existed and I shall provide the Minister with something about it directly.

Lord Renton

Before we depart from this group of amendments, will the noble Baroness look at those parts of Clause 216—we find the same problem arising later—where the court, instead of being given a discretion, must impose a sentence of imprisonment for life? No discretion is given to the court even though the offender may be only just 18 years old. Will the noble Baroness give an undertaking to reconsider that imposition upon the court when quite honestly she knows, as we all know, that no two cases are the same? The circumstances vary enormously. The amount of guilt varies enormously. The prospect of future commission of offences varies enormously. To leave the court without a discretion—which the courts have always had for serious matters—is not the way that we should legislate.

Baroness Scotland of Asthal

Before I answer the noble Lord, Lord Renton, I wish to respond to the point made by the noble Lord, Lord Dholakia, about restricting children's liberty and our duties under the UNCRC and the recommendations that are made. We have taken those issues very much into account. The Committee will know that, thankfully, the provisions will refer to very few juveniles. We have tried to establish the right balance. The noble Lord will have seen from our other provisions regarding children that we seek to draw a distinction between the way in which we treat juveniles as opposed to adults. We have tapered the provisions so that the court will have an opportunity to consider the rare cases—mercifully, they are rare cases—where children of a relatively young age are found guilty of the kind of offences that we are discussing. We believe that we have sufficient safeguards in place.

I turn to the question of the noble Lord, Lord Renton. When looking at the provisions of Clause 216, it is important to remind ourselves what subsection (2) actually provides. A number of things have to be established. Subsection (2) states: "if— (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life— that is the first criterion— "and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life". Those are significant, or rather substantial, hurdles over which one must leap before the court, being so satisfied, then must impose a sentence of imprisonment. Under Clause 216(2), the court has to exercise its discretion in relation to (2)(a), then in relation to (2)(b). Only if the court is satisfied that (a) and (b)—it is not a case of "or" but "and"—are satisfied must it then impose the imprisonment. If the court finds that (a) and/or (b) are not so satisfied, it has the opportunity not to impose life imprisonment. Then, of course, all the other ways of dealing with the offender are open to the court. We believe that the provision is clear and that it is a perfectly sound way of dealing with the matter.

Baroness Anelay of St Johns

I am grateful to the Minister for her careful response to a whole host of questions on this large group of amendments. I address the skittles point first—I refer to the elegant term that the noble Baroness used to describe my amendments. Some of them were indeed skittles but not all. I thank the noble Baroness for her response on Amendment No. 195C. I accept her assurances with regard to it and I shall not return to it on Report. I shall consider her responses to Amendments Nos. 195D to 197, particularly, as I signalled earlier, those responses that concern children. I shall, of course, report back to the Children's Society and take a sounding on its response to the noble Baroness's comments.

I thank all those who supported these amendments. We are trying to introduce the word "substantial" and make it clear. The Minister took the noble Lord, Lord Carlile of Berriew, to task for his rhetoric. My experience of his rhetoric so far on this Bill is that it tends to illuminate the reality of the world in court. I am grateful to him for that rhetoric.

On Amendment No. 195B I believe that there is a disagreement between us on the appropriateness of the drafting. I am convinced that Justice is right and that the correct word is "substantial" not "significant". I can have no better proof of that than to be supported on the matter by my noble friend Lord Waddington. With him behind me on the matter, I know that I am not being soft on crime. I wish to seek the opinion of the Committee.

4.58 pm.

On Question, Whether the said amendment (No. 195B) shall be agreed to?

Their Lordships divided Contents, 137, Not-Contents, 120.

Division No. 1
CONTENTS
Ackner, L.	Hunt of Wirral, L.
Addington, L.	Jenkin of Roding, L.
Anelay of St Johns, B.	Jopkng, L
Arran, E.	Kennedy of The Shaws. B.
Ashcroft, L	Kimball.L.
Astor, V.	King of Bndgwater, L.
Attlee, E.	Knight of Collingtree, B.
Avebury, L.	Lamont of Lerwick, L.
Barker, B.	Lang of Monkton, L.
Beaumont of Whitley, L.	Linklater of Butterstone, B.
Biffen, L.	Liverpool, E.
Bowness, L.	Livsey of Talgarth, L.
Bradshaw, L.	Lucas, L
Bndgeman, V.	Lyell, L.
Brooke of Sutton Mandeville, L.	McColl of Dulwich, L.
Brougham and Vaux, L.	Mackie of Benshie, L.
Bumham, L.	Maclennan of Rogart, L.
Byford, B.	Maddock B.
Caithness, E.	Mancroft, L.
Campbell of Alloway, L.	Mar and Kellie, E.
Carhle of Bernew, L.	Marlesford, L.
Carlisle of Bucklow, L.	Masham of IIton, B.
Carnegy of Lour, B.	Methuen, L.
Cavendish of Furness, L.	Miller of Hendon, B.
Clement- Jones, L.	Monson, L.
Colville of Culross, V.	Montrose, D.
Colwyn, L.	Mowbray and Stourton, L.
Cope of Berkeley, L. [Tellei]	Moynihan, L.
Craig of Radley, L.	Naseby, L.
Craigavon, V.	Newby, L.
Crickhowell, L.	Northesk, E.
Cumberlege, B.	Northover, B.
Denham, L.	O'Cathain, B.
Dholakia, L.	Palmer L.
Dixon-Srruth, L.	Park of Monmouth, B.
Eden of Winton, L.	Patten, L.
Elliott of Morpeth, L.	Pearson of Rannoch, L.
Elton, L.	Phillips of Sudbury, L.
Flather, B.	Plumb, L.
Fookes, B.	Reay, L.
Fowler, L.	Redesdale, L.
Gardner of Parkes, B.	Renfrew of Kaimsthorn, L.
Garel-Jones, L.	Renton, L.
Geddes, L.	Rodgers of Quarry Bank, L.
Gilmour of Craigmillar, L.	Rotherwick, L.
Glentoran, L.	Russell-Johnston, L.
Gray of Contin, L.	Saltoun of Abernethy, Ly.
Greenway, L.	Scott of Needham Market, B.
Griffiths of Fforestfach, L.	Seccombe, B. [Teller]
Haskins, L.	Selborne, E.
Hayhoe, L.	Selsdon, L.
Henley, L.	Sharp of Guildford, B.
Higgins, L.	Sharpies, B.
Hodgson of Astley Abbotts, L.	Shaw of Northstead, L.
Hooper, B.	Sheppard of Didgemere, L.
Howe, E.	Shrewsbury, E.
HoweofAberavon, L.	Shutt of Greetland, L.
Howe of Idlicote, B.	Skelmersdale, L.
Howell of Guildford, L.	Smith of Clifton, L.

Soulsby of Swaffham Prior, L.	Trefgarne, L.
Stewartby, L.	Trumpington, B.
Strathclyde, L.	Ullswater, V.
Swinfen, L.	Waddington, L.
Taylor of Warwick, L.	Wakeham, L.
Thomas of Gresford, L.	Walmsley, B.
Thomas of Gwydir, L.	Weatherill, L.
	Wilcox, B.
Thomas of Swynnerton, L.	Williams of Crosby, B.
Tordoff, L.	Williamson of Horton, L.

NOT-CONTENTS
Acton, L.	Islwyn, L.
Ahmed, L.	Jay of Paddington, B.
Allenby of Megiddo, V.	Jones, L.
Amos, B. (Lord President)	Judd, L.
Andrews, B.	King of West Bromwich, L.
Archer of Sandwell, L.	Kirkhill, L.
Ashton of Upholland, B.	Lea of Crondall, L.
Bach, L.	Lipsey, L.
Barnett, L.	Listowel, E.
Bassam of Brighton, L.	Lofthouse of Pontefract, L.
Berkeley. L.	Macdonald of Tradeston, L.
Bernstein of Craigweil, L.	McIntosh of Haringey, L.
Billingham. B.	McIntosh of Hudnall, B.
Blackstone, B.	MacKenzie of Culkein, L.
Borrie, L.	Mackenzie of Framwellgate, L.
Brennan, L.	Mar, C.
Brett, L.	Marsh, L.
Brooke of Alverthorpe, L.	Mason of Barnsley, L.
Brookman, L.	Massey of Darwen, B.
Campbell-Savours, L.	Merlyn-Rees, L.
Carter, L.	Morris of Manchester, L.
Christopher, L.	Murray of Epping Forest, L.
Clark of Windermere, L.	Newcastle, Bp.
Clarke of Hampstead, L.	Patel of Blackburn, L.
Clinton-Davis, L.	Pendry, L.
Cobbold, L.	Peston, L.
Cohen of Pimlico, B.	Pitkeathley, B.
Corbett of Castle Vale, L.	Plant of Highfield, L.
Crawley, B.	Ponsonby of Shulbrede, L.
Davies of Coity, L.	Prys-Davies, L.
Davies of Oldham, L.[Teller]	Puttnam, L.
Dean of Thornton-le-Fylde, B.	Radice, L.
Desai, L.	Ramsay of Cartvale, B.
Dixon. L.	Rea, L.
Donoughue, L.	Rendell of Babergh, B.
Dormand of Easington, L.	Richardson of Calow, B.
Dubs, L.	Scotland of Asthal, B.
Eatwell, L.	Sheldon, L.
Evans of Parkside, L.	Simon, V.
Evans of Temple Guiting, L.	Smith of Gilmorehill, B.
Farrington of Ribbleton, B.	Smith of Leigh, L.
Faulkner of Worcester, L.	Stone of Blackheath, L.
Filkin, L.	Strange, B.
Gale, B.	Symons of Vemham Dean, B.
Gibson of Market Rasen, B.	Taylor of Blackburn, L.
Golding, B.	Temple-Morris, L.
Goudie, B.	Tenby.V.
Gould of Potternewton, B.	Thornton, B.
Graham of Edmonton, L.	Tomlinson, L.
Grocott, L. [Teller]	Truro, Bp.
Harrison, L.	Turnberg, L.
Haskel, L.	Turner of Camden, B.
Hayman, B.	Warnock, B.
Hilton of Eggardon, B.	Warwick of Undercliffe, B.
Hollis of Heigham, B.	Whitaker, B.
Howarth of Breckland, B.	Whitty, L.
Howells of St. Davids, B.	Wilkins, B.
Howie of Troon, L.	Williams of Elvel. L.
Hughes of Woodside, L.	Wilson of Dinton, L.
Irvine of Lairg, L.	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.9 p.m.

The Deputy Chairman of Committees

As previously explained to the Committee, now that Amendment No. 195B has been agreed to I am unable to call Amendment No. 195C due to pre-emption.

[Amendments Nos. 195C to 195E not moved.]

On Question, Whether Clause 216, as amended, shall stand part of the Bill?

Lord Monson

I want to touch on an aspect of the matter that, to the best of my knowledge, has not so far been discussed.

Like the noble Lord, Lord Renton, and a great many others as the previous Division testifies, I am uneasy about the clause. I am uneasy about subsections (3) and (4) in particular. As I interpret them as an admitted layman, they seem to provide that an individual who might be expected at present to spend, for example, four or five years in prison after remission could in the future spend 10 or 20 years there for exactly the same crime if he is deemed to be dangerous. I am sure that most of us feel unhappy about the idea of keeping people behind bars, no longer because of what they have done, but because of what they might just possibly do in the future. That is exactly what will happen if men—and it will almost always be men—are kept in prison after they have served a period of years that the trial judge, as matters stand, has deemed appropriate and adequate—I stress the word "adequate"—for the purpose of deterrence and retribution. In other words, they will no longer be fairly punished for the crime or crimes of which they have been convicted; they will henceforth be held in preventive detention.

The Government may well be right in their argument that de facto preventive detention is the lesser of two evils and that the clause is therefore necessary. The noble Baroness has, as usual, made her case for the clause extremely effectively. However, if individuals are to be detained in prison after their normal release date, for the purpose not of punishment but of prevention, is it not right that their detention should be made as comfortable as possible, consistent with security?

For obvious reasons, open prisons are a non-starter for that kind of individual, but within a necessarily secure prison, should not such detainees, as they might fairly be described, be entitled, for example, to superior accommodation, better food, more family visits, a chance to earn money at the market rate and so on? If so, should not such entitlements, contingent of course on good behaviour, be enshrined in statute rather than merely left to the discretion of prison governors, always assuming that the prison governors have the power to exercise such discretion, which may or may not be the case?

I apologise for bouncing the matter on the Minister, but she is extremely quick on her feet. I would therefore be grateful if she would indicate, without in any way committing either herself or the Government, whether she agrees that there is force in my argument, in which case it may not be too late to take the matter forward on Report.

Lord Thomas of Gresford

I support the sentiments expressed by the noble Lord, Lord Monson. We on these Benches are unhappy with the provisions of Clause 216 because of the forensic exercise that has to be carried out. Reference is made to preventive detention as a familiar sentence from the past. We were used to dealing with that, but it was very much at the discretion of the judge to make such an order.

The provisions before us bring about the following: the advocate addresses the judge on the basis that he should not accept that there is a significant risk that the person in question will re-offend. The judge then comes to an opinion; he forms no more than an opinion. On the basis of that opinion, having heard argument on both sides, he comes to a conclusion. If that conclusion is adverse to the defendant, he must— there is no discretion—sentence him under Clause 216 to life imprisonment. The defendant receives life imprisonment not for what he has done, but for the judge's opinion of what he might do in the future. To us on these Benches, that is fundamentally wrong and we will address it further on Report.

5.15 p.m.

Baroness Scotland of Asthal

I am happy to explain Clause 216 further, because I appreciate that the noble Lord, Lord Monson, does not quite understand how the provisions come into play. I note that he was supported by the noble Lord, Lord Thomas of Gresford.

As I pointed out earlier, Clause 216 provides the new offence of imprisonment for public protection of sexual and violent offenders, aged 18 or over, who have been assessed to be dangerous. It is just those who are perceived as being dangerous who will be subject to the provisions.

Sexual and violent offenders who have been assessed as dangerous and who have committed "a serious offence" that carries a sentence of 10 years or more, as defined by Clause 215, must be sentenced either to imprisonment for public protection or to a discretionary life sentence. At the moment, all offenders other than those who have been sentenced to life imprisonment must be released after they have served two-thirds of their sentence, regardless of whether they continue to pose a serious risk to the public. There will be those who pose that risk, but they will be discharged.

The new sentence will ensure that such offenders cannot be released until their risk is considered manageable in the community. It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety. However, that must be seen in the context of everything that we are trying to achieve in prisons; that is, first, to address the nature of the underlying offending behaviour and, secondly, to try and rehabilitate, if rehabilitation is possible, some of the more serious offenders through training, education and opportunities. I have mentioned that once an offender is in prison, there will be an assessment of the nature of his difficulties and the risks that he poses so that, while he is in prison, we can seek to address those problems.

I obviously take account of the concerns expressed by the noble Lord, which were echoed by the noble Lord, Lord Thomas of Gresford. He said that if such offenders are to stay in prison for a very long time we should look seriously at how they are accommodated and the kind of conditions that we make available to them. I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure. If we are able to roll it out, and we hope to be able to do so over a period of time, the Prison Service will have the kind of tools necessary to make the assessment which will help to bring about change, but which will also identify those people who may not be as amenable to change as we would like and who therefore continue to pose a risk to members of the public.

Noble Lords will know that, tragically, there have been occasions when people have been released from custody and have re-offended in a relatively short compass. We wish to reduce the number of cases in which that happens. The only way we can do that is by instituting appropriate risk assessments on behalf of all the criminal justice agencies to try to limit the prospect of that happening. I understand the concerns of the noble Lord, but we consider the provisions to be helpful.

Lord Monson

I am grateful to the noble Baroness for that explanation. I believe I understand entirely what the Government are trying to do and the noble Baroness has made a good case for it. I merely ask that those who are kept on in prison beyond the normal time at which they would expect to be released, for the purposes of prevention rather than punishment, should be kept in as comfortable conditions as possible consistent with security.

Baroness Scotland of Asthal

We share that aspiration and we intend to do all we can to make sure that each prisoner is appropriately housed, bearing in mind the risks that they pose and the needs that they may have.

Clause 216, as amended, agreed to.

Clause 217 agreed to.

Clause 218 [Extended sentence for certain violent or sexual offences: persons 18 or over]:

[Amendment No. 195F not moved.]

Clause 218 agreed to.

Clause 219 [Extended sentence for certain violent or sexual offences: persons under 18]:

[Amendment No. 195G not moved.]

Clause 219 agreed to.

Clause 220 [The assessment of dangerousness]:

[Amendments Nos. 195GA to 197B not moved.]

Clause 220 agreed to.

Schedule 13 [Scottish offences specified for the purposes of section 220(4)]:

Baroness Scotland of Asthal moved Amendment No. 198: Page 255, line 21, leave out from "Act" to end of line 22 and insert "(detention of woman in brothel or other premises)

The noble Baroness said: In moving Amendment No. 198, I shall speak also to Amendments Nos. 199 and 200. All of these are minor drafting changes to the sexual and violent offences listed in Schedules 13 and 14 that may trigger the new sentences for dangerous offenders. These amendments are consequential to the changes in the Scottish and Northern Irish legislation. I beg to move.

On Question, amendment agreed to.

Schedule 13, as amended, agreed to.

Schedule 14 [Northern Ireland offences specified for the purposes of section 220(4)]:

Baroness Scotland of Asthal moved Amendments Nos. 199 and 200:

Page 259, line 11, leave out paragraph 66.

Page 260, line 19, at end insert— 87A An offence under Article 20 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (assault with intent to commit buggery). 87B An offence under Article 21 of that Order (indecent assault on a male).

On Question, amendments agreed to.

Schedule 14, as amended, agreed to.

Clause 221 agreed to.

Schedule 15 agreed to.

Clauses 222 to 228 agreed to.

Clause 229 [Power of court to recommend licence conditions for certain prisoners]:

Lord Thomas of Gresford moved Amendment No. 200A:

Page 132, line 33, leave out "particular" and insert "reasonable"

The noble Lord said: We seek to make a small amendment to Clause 229, replacing the word "particular" on page 132, line 33, with the word "reasonable". The amendment is clear. We believe that a court should not be able to insert any particular condition into the licence granted to an offender, but that that condition should be reasonable. I beg to move.

Viscount Bridgeman

I want to speak to Amendments Nos. 203A and 204A in the names of my noble friends Lady Anelay and Lord Kingsland. Clauses 235 and 236 contain the key provisions that the Government propose should operate in future to govern the early release of fixed-term prisoners. In some key respects, particularly for those prisoners serving long sentences of imprisonment, they represent a major departure from the current arrangements. My noble friend has tabled the amendments in order to enable Members of the Committee to consider these changes so that the Government can justify their proposals to the Committee and to the wider public.

The present arrangements for the release of fixed-term prisoners are contained in the Criminal Justice Act 1991. That Act provided that those prisoners serving custodial sentences of up to four years, commonly called "short-term prisoners", should serve half their sentence in prison and the remainder on licence. Since 1999, the Government's home detention curfew scheme has allowed short-term prisoners to be released on electronic tags up to three months before the half-way point. Thus, someone serving a sentence of two years could serve up to 12 months but might serve only nine months before being released on an electronic tag.

The arrangements are different for prisoners serving four years or more—long-term prisoners. Currently, they serve at least half their sentence in prison before becoming eligible for parole and are released automatically on licence after serving two-thirds. Thus, at present, someone sentenced to six years, for example, if he were refused parole, could serve up to four years before being released.

The Bill makes a fundamental alteration to these arrangements for long-term prisoners. Clause 235 abolishes the concept of parole for long-term prisoners and provides that all those serving custodial sentences of 12 months or more should be released at the half-way point. Clause 236 also extends the home detention curfew scheme by applying it to all prisoners, not just those serving fewer than four years, and increasing the extra discount that may be given to a maximum of 135 days, which is a little more than four months.

The result of all this is that any prisoners serving a sentence of four years or more can expect to spend a good deal less time in custody than they do at present. The important point is that these are almost invariably prisoners who have committed serious offences. I ask the Committee to consider the following three examples. Offender A is convicted of wounding with intent to cause grievous bodily harm after "glassing" his victim in a drunken pub brawl. He is sentenced to six years' imprisonment. Although he could have been sentenced to imprisonment for public protection, the court is satisfied that he does not impose a significant risk to the public.

Under current arrangements, he would have to serve a minimum of three years before applying for parole and if this is denied would be released only after four years. As a long-term prisoner, he would not be eligible for home detention curfew. Under the Bill's provisions, he would be released automatically after serving three years and could be released on home detention curfew after serving two years and eight months. The potential difference made by the Bill in A's case is that he could serve up to one year four months less of his six-year sentence in custody than at present, serving two years eight months rather than four years.

Consider offender B: a serial burglar with a long record who is convicted of a number of burglaries at the homes of old and disabled people. He is sentenced to eight years' imprisonment. Because no violence is involved, he is convicted of the ordinary offence of burglary and so cannot be sentenced to imprisonment for public protection. Under the current arrangements, this offender would serve a minimum of four years before applying for parole and if this is denied, he would be released only after five years and four months. As a long-term prisoner, he would not be eligible for home detention curfew.

Under the Bill's provisions, this burglar would be released automatically after serving four years and could be released on home detention curfew after serving three years and eight months. Thus, the potential difference of the Bill in offender B's case is that he could serve up to one year eight months less of his eight-year sentence than at present, serving three years and eight months rather than five years and four months.

Finally, consider the case of offender C: a notorious drug baron who is convicted of importing a massive quantity of heroin and is sentenced to 12 years' imprisonment. Because this is not a violent or sexual offence, there is no question of the court imposing a public protection sentence. Under the current arrangements, he would have to serve a minimum of six years before applying for parole and if this is denied, he would be released only after eight years. As a long-term prisoner, he would not be eligible for release on home detention curfew.

Under the Bill, offender C would be released automatically after serving six years and could be released on home detention curfew after serving five years and eight months. So, the potential difference made by the Bill in C's case is that he could serve up to two years and four months less of his 12-year sentence than at present, serving five years and eight months rather than eight years.

These three examples and the sentences passed are all realistic and in all of them the Bill could make a massive difference to the amount of time spent in custody. I am particularly concerned about the Bill having the effect that drug dealers and serial burglars, as well as those violent and sexual offenders who receive determinate sentences, will serve less time in custody.

I believe that these provisions deserve the clearest justification from the Government. Many thousands of offenders, some of them convicted of very serious crimes indeed, will be released from prison much earlier as a result of what the Government are proposing; namely, the reduction from serving two-thirds to serving half of the sentence, with the added reduction if the offender is released early on the tagged curfew. That decision alone flies in the face of the previous Home Secretary's commitment, given to another place on 29th November 1999: We have no plans or intention whatever to provide for electronic tagging to facilitate the early release of serious … offenders. Let me make that clear, with a full stop—none whatever".—[Official Report, Commons, 29/11/99; col. 27.] The Bill allows precisely that: it cuts the maximum time that many serious offenders, such as drug dealers and serial burglars, will spend in prison, as well as allowing their release even earlier on electronic tags. I hope that, in his reply, the Minister will explain the reasons behind that course of action.

5.30 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)

In rising to respond to these amendments, having joined as a late substitute the government team on this Home Office Bill, I want to make a declaration of interest before I begin. My step-daughter is a prison governor, but unfortunately I have not had the benefit of discussing these measures with her.

Perhaps I may set out, if I can, both why we believe that the new arrangements in these clauses are appropriate and how they go to the heart of what the Halliday report was trying to do. I shall then turn to the specific questions raised by the noble Viscount, Lord Bridgeman, concerning their potential effect.

The provisions for custodial sentences of 12 months or more are a central part of the wholesale reform of the sentencing framework. Amendment No. 203A seeks to alter the release provisions for those sentences so that they would not all incur automatic release at the halfway point. Instead, release from sentences of four years or more would take place at the two-thirds point of the sentence; in other words, the amendment would reinstate the present parole thresholds.

The introduction of sentences of 12 months or more with automatic release at the halfway point builds upon the recommendations of the Halliday report. It provides a new custodial sentence that is intended to be transparent and effective so that all parties who need to do so can better understand the thrust, purpose and impact of sentencing policy.

Therefore, the automatic release provisions will make the effect of the sentence simpler for the public and practitioners to understand. It should also, most significantly, assist post-release planning, giving the correctional services the necessary information to put in place a coherent package of interventions for the second half of the sentence. The new sentence also provides for requirements to be attached to the whole second half of the sentence. Currently, after a person has been released—for example, at the two-thirds point—any conditions fall away at the point at which he would have reached three-quarters of his sentence.

The differentiation in release provisions for sentences of over and under four years is justifiable under the current sentencing framework in terms of public protection as potentially dangerous offenders may be serving longer custodial sentences.The Committee will well know why. However, because the Bill introduces sentences for all dangerous sexual and violent offenders, release from which will be dependent upon a recommendation by the Parole Board, the determinate sentence of 12 months or more to which the amendment applies will be available only to non-dangerous offenders.

Therefore, there is no public protection justification for retaining the differential release provisions suggested by Amendment No. 203A, as, I believe, by inference from what he said, the noble Viscount. Lord Bridgeman, well understood. Because the amendment would also forgo all the benefits associated with the new sentences of 12 months or more, we believe that it is undesirable. In other words, the benefits put in place far better release planning and a far more consistent and longer-term supervision regime during the full second half of the sentence that was originally imposed. And, of course, there is a full right of recall to prison if all or any of those conditions are breached.

We are making this change because we believe that prison is certainly about punishment and it is sometimes necessarily about retribution, but it must also be about seeking to reduce the risk of reoffending. Therefore, the purpose of the proposal that half the sentence be spent in prison followed by up to a half outside, with conditionality on that half outside, is to try to put in place better planning between the prison and the probation service in an attempt to settle the offender back into society and reduce the likelihood that he will reoffend.

No one is Panglossian on this issue, assuming that that will automatically happen. But we believe that there is some logic to these arrangements, which involve better planning and impose conditionality of release on licence. For the totality of the second half, which will be longer than the current position for a person released early, the framework will be better than trying to supervise tightly people who have offended and attempting to get them to obey the norms of society and undergo a successful resettlement. I hope that the Committee has borne with me during that digression.

Amendment No. 200A would make a minor drafting change to the provisions which give the court the power to recommend licence conditions for offenders sentenced to imprisonment for 12 months or more. Clause 229 requires the Secretary of State to have regard to the court's recommendations. However, given the period of time that may have elapsed between sentence and release, it was considered inappropriate for the court to give anything other than a recommendation.

The kind of conditions that may be recommended are not specified on the face of the Bill but may include educational provisions, requirements to attend programmes or undertake unpaid work, varying according to the needs of the individual offender. Amendment No. 200A does not change the effect of the clause and, I suggest, does not improve the drafting. For those reasons, we do not wish to accept it.

Amendment No. 204A attempts to enhance public protection by ensuring that offenders serving custodial sentences of four years or more may not be released early on home detention curfew, or HDC, if I may use that abbreviation. We suggest that this amendment is also unnecessary because sufficient safeguards are already in place to ensure that potentially dangerous offenders are not released early on HDC. Those who are given the new sentences for dangerous offenders will not be eligible for HDC and all other offenders must be thoroughly risk-assessed before they may be granted early release.

The noble Viscount, Lord Bridgeman, gave three examples in which he sought to question whether we genuinely wished to release early in the circumstances that he described. If I heard him correctly, the offender in his first example, who had wounded with intent, had clearly committed a violent offence and therefore the provision would not apply in that situation. In his examples B and C, if I heard him correctly, the offenders had not committed violent or sexual offences. Therefore, in that sense, the noble Viscount is right: he is in play in debate on this issue.

We consider the measure to be justified in those circumstances—both providing release at the halfway point and also, although it is a limited discretion, making the discretion available to a prison governor to allow HDC if he believes that the circumstances warrant it—for exactly the reasons that I sought to outline previously. Such discretion is not focused essentially on the good of the burglar or the good of the drugs baron. There is an attempt to make it more likely that there will be a supervisory regime for, in the case of the drugs baron, the full second six months of his sentence. That drugs baron, or the person who has offended, will be on licence in the community but subject to recall to prison at any time if he breaches the terms of the licence.

We believe that that will give a stronger process of control on licence than the current situation and, we hope, will focus the efforts of the probation service on trying to ensure that the person is supervised. We consider it right and proper that the Bill is pitched in this way, consistent with the Halliday recommendations. The aim is for the offender to change his ways and to reduce the risk that he will reoffend. For those reasons—I hope that my explanation has been helpful—we believe that the current measures pitch the issue correctly.

Viscount Bridgeman

On a personal note perhaps I may say how helpful I found the noble Lord's step-daughter on a recent visit to Wandsworth Prison. She made the visit most interesting.

I turn to the amendments. I am grateful to the Minister for his explanation. However, we feel that it did not address the point that I sought to make, which is of a general reduction in prison sentences. In view of the fact that this is contrary to what was said by the previous Home Secretary, I should like to test the opinion of the House.

Lord Thomas of Gresford

As this is my amendment, perhaps I may reply and the noble Viscount, Lord Bridgeman, can divide the Committee in a moment. The magic and mysterious music murmuring around the Chamber made it very difficult for me to concentrate on the full force of the Minister's reply to my amendment. I shall read what he had to say and decide what I shall do when I have understood it. In the mean time, I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

Clause 229 agreed to.

Clause 230 [The Parole Board]:

Lord Filkin

moved Amendment No. 201:

Page 133, line 6, leave out "Part" and insert "Chapter". The noble Lord said: Government Amendments Nos. 201 and 202 rectify minor technical inaccuracies with the Parole Board provisions in Part 6. The functions of the Parole Board under Part 12 ought, for consistency with other provisions, to be references to functions under Chapter 6 of that part. I hope that that is clear. That explains why the government amendments are necessary. I beg to move.

Lord Thomas of Gresford

Amendment No. 202A deals with the procedures of the Parole Board. The purpose of the amendment is to omit subsections (5) and (6), which are very important.

As part of its constitution the Parole Board has a person who has held high judicial office and a psychiatrist. However, in practice, when reviewing licences it is my experience that a number of members who are not identified meet on a daily basis without either a legally or medically-qualified member. It appears to follow a procedure which is opaque, to say the least.

I declare an interest: I was involved in a case— fortunately it is over so I can refer to it—in which the Secretary of State was subject to judicial review. We discovered that it was impossible to find out what were the rules of the Parole Board in reviewing a licence. There is nothing on the web. So far as we could find out, nothing is published and there is a total lack of transparency.

The hearings depend upon written reports, which are not disclosed to the person on licence. He has no right to be present or to be represented. In the specific case with which I was concerned a person on licence was arrested and charged with three offences. As a result, the Parole Board revoked his licence and returned him to prison. One of the charges was dropped. He was acquitted on the second charge and the third charge was due to be heard the day after the Parole Board was to determine his appeal against the revocation of his licence.

Naturally, his solicitor asked the Parole Board to adjourn so that the result of the third offence could be determined. The Parole Board refused that request. The board sat the day before his final hearing and turned him down so that he remained in prison. He was acquitted the following day so all three charges were disposed of. The solicitor went back to the Parole Board and asked it to reconsider its decision, and was told, "We are functus officio. We cannot hear the matter any further". At that point judicial review proceedings were commenced. In due course, before the hearing, although the application for leave was resisted, leave was granted—without, I should say, counsel for the applicant being called upon—and the Home Secretary withdrew.

Through that experience I discovered that it was impossible to find out how many members of the Parole Board were sitting, who they were, why they took this extraordinary decision to refuse an adjournment and why they refused to rehear the matter when all the matters at issue had been resolved. With that experience in mind I came to look at Clause 230(5) and (6).

Subsection (5) gives power to the Secretary of State to, make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times". It does not give any further detail. Subsection (6) refers to giving the board directions.

If one turns to Clause 299(2) to see what is the rule-making power, one discovers that this particular subsection is the only exception to the general rule. Clause 299 states that, The power, [to make rules] unless it is a power to make rules under section 230(5), is exercisable by statutory instrument". So, for some reason which I do not understand, the rules in Clause 230(5) are not to be made by statutory instrument and therefore are presumably to remain as opaque and as lacking in transparency as they are at present. That is completely unacceptable. I fail to understand how it can be compatible with the convention. Although it is not the lead amendment in this group, I shall beg leave to move my Amendment No. 202A in due course.

5.45 p.m.

Viscount Colville of Culross

Before the Minister replies, perhaps I may add a word to the points made by the noble Lord, Lord Thomas. I am glad to say that it is no longer my job to defend decisions of the Parole Board. However, there is a point on rules and directions on which he has rightly focused.

The last time this situation arose was after the United Kingdom lost a case at Strasbourg about discretionary life sentences. It was held that it was no longer acceptable for the Home Secretary to decide when such people should be released. Therefore, the Parole Board was turned into a tribunal in order to make that decision in lieu of the Home Secretary. For that purpose there had to be rules. They were the same sort of rules to which the noble Lord, Lord Thomas, referred, but they were eventually made.

Can the Minister ensure that we do not have a repetition of what happened on that occasion? The Act was to come into force at the beginning of October. The Parole Board asked the Home Office, "Where are the rules?" Nothing happened. We did not ask just out of curiosity. A number of people had to be trained in order to carry out hearings of the kind to which the noble Lord has just referred. They included not just lawyers but also people from a multiplicity of other disciplines. As I said, we asked: "Where are the rules?". But nothing happened.

So in the end, a group of my colleagues and I sat down and wrote down the rules ourselves. We sent them to the Home Office and said, "This is the best we can do. We will have to train the members of the Parole Board on the basis of these rules because you will not produce any". That is what we did. In the end, some time in the middle of September, the rules were produced and bore a marked similarity to the draft that we sent to the Home Office. I believe they have worked perfectly well since, but they are not a statutory instrument.

Not only are there more rules here, we have directions. I can tell the Committee that to ensure that such things are properly understood by members of the Parole Board and of panels who have to sit on cases such as those to which the noble Lord, Lord Thomas, has referred, one needs time in advance to train people so that they can consider the implications. It is no use leaving it until the last minute. I ask the noble Lord, Lord Filkin, to ensure that on this occasion there is plenty of lead time. Otherwise it will simply not work. There is now a great deal to build on. There are the discretionary lifer rules—which, I think, would be a useful starting point.

I should like to draw attention to just one matter. If the Home Secretary is to give directions under subsection (6)(b), having regard to, the desirability of preventing the commission by", prisoners, of further offences", to what on earth else will he have regard? In taking account of any considerations, he must be considering that desirability- although that is an odd word to find here. I hope that the draftsman will reconsider that.

However, my main point is that we must not have a repetition of what happened before: all those provisions must be put in place—it would be much better if they were transparent—much sooner than happened last time. I shall forgive the noble Lord, Lord Filkin, if he cannot say anything about the matter today, because I gave notice of it only about 25 minutes ago; but perhaps he can consider it and let me know what is the situation.

Lord Filkin

In responding to extremely interesting speeches to Amendment No. 202A, which was debated in another place and which would remove the Secretary of State's power to make rules and directions concerning the operation of the Parole Board, let me first make some general remarks before turning to more specific points raised by the noble Lord, Lord Thomas of Gresford, and the noble Viscount, Lord Colville of Culross.

First, on the provision in subsection (5) enabling the Home Secretary to set down directions, as was highlighted during debate in another place the Home Secretary is responsible for CriminalJustice policy and is accountable to Parliament for all aspects of that policy. He is also responsible for the supervision of all offenders on licence—and, again, is answerable to Parliament in respect of their release arrangements. Because of that, it is entirely proper that he should be able to set down the considerations to be taken into account when determining whether to grant early release.

Having said that, that does not give the Home Secretary unfettered discretion to set down excessive or unreasonable criteria to be met before release can be granted. All directions must be compliant with Article 6 of the European Convention on Human Rights. The rules have no influence on the determination of applications for early release. Instead, they offer a procedural framework for the Parole Board when sitting in a quasi-judicial capacity in the form of an oral hearing. The Parole Board is always fully consulted in drawing up such rules.

Of course, that was not the thrust of the issue raised by the noble Lord, Lord Thomas of Gresford. In short—he will bear with me if I slightly oversimplify it—it was that, given that it is operating in a quasi-judicial capacity, one would expect the Parole Board's rules to be known and apparent. He is right on that. I am advised that they are published, but we shall clearly need to consider how they are published and whether they are sufficiently transparent and accessible. If there is a need for greater transparency, we undertake to put that in place.

Turning to the powerful points made by the noble Viscount, Lord Colville: yes, we will ensure that we will make the rules in time; that training is provided for their implementation; and that we consult the Parole Board. I am told that that is already under way. The noble Viscount is absolutely right: the issues affect people's liberty and they have every right to expect that the processes by which decisions are made are comprehensible and open to account.

Having made those two general commitments and, aware that I am—how shall I put it?—speaking on another's Bill, it is better that I put in writing to those Members of the Committee and others any further points on those issues that go to the heart of what they have raised, so that we provide as much clarity as possible before Report. At this point, I suggest that the opposition amendments are not pressed.

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 202:

Page 133, line 7, leave out "Part" and insert "Chapter".

On Question, amendment agreed to.

Lord Thomas of Gresford

had given notice of his intention to move Amendment No. 202A: Page 133, line 26, leave out subsections (5) and (6). The noble Lord said: 1 do not propose to repeat what I said earlier. I am most grateful to the noble Viscount, Lord Culville of Culross, for his support and am interested to hear that it is possible to read the rules. I had been under the impression that one reason that the Secretary of State did not proceed further in the case to which I referred was that there was an unwillingness to disclose the rules to the defence. The order that the judge made on the application for leave was that such disclosure should be made on my application.

We were tempted to press the matter to a Division, but I have heard what the Minister said and await with interest—and within the next two weeks—his further response that will make absolutely clear what is the Government's position on the issue. It is only with that in mind that, for the moment, I shall not move the amendment.

[Amendment No. 202 A not moved.]

Clause 230, as amended, agreed to.

Schedule 16 agreed to.

Clauses 231 to 233 agreed to.

6 p.m.

Clause 234 [Persons extradited to the United Kingdom]:

Lord Hodgson of Astley Abbotts moved Amendment No. 203: Page 136, line 13, after "extradition" insert "and surrender

The noble Lord said: The amendment concerns Clause 234, which is entitled "Persons extradited to the United Kingdom".

Some Members of the Committee may be unaware that in parallel with the Bill the Government are pushing through a new Extradition Bill. In its way, it is as long and complex a piece of legislation as the Bill before us: witness the fact that we have spent nine days in Grand Committee discussing its details.

We have been extremely grateful: first, to the noble Lord, Lord Filkin; and latterly, to the noble Baroness, for the courtesy and attention that they have given to the many amendments tabled. I hope that, in the same spirit, they will forgive me when I say that my noble friend Lady Anelay and I were somewhat horrified to be told that the Government are now to table 158 amendments to the Extradition Bill between now and the end of the week for Report, which begins next Wednesday. If this House is to carry out its proper role of revising and consultation, that is a jolly short period in which to deal with 158 amendments. However, we shall let the matter lie for the moment.

It is important, in the interests of public confidence and clarity of intention, that the Criminal Justice Bill and the Extradition Bill march in step. The objective of my amendment is to help to achieve that cohesion.

The Extradition Bill proposes wholesale revision of our extradition laws. It is argued that the present legislative framework gives too many opportunities for the wrongdoer unfairly to delay his extradition. The force of that argument is accepted on all sides of the Committee. But the Extradition Bill makes a further significant step. It divides the countries with which we have extradition arrangements into two categories, each being afforded completely different treatment. Extradition to category 1 territories, which are expected broadly to be EU partner countries, will be governed by a concept wholly new to English law: the European arrest warrant.

Under the European arrest warrant, individuals who commit one of 32 groups of offences carrying a custodial sentence of more than 12 months are, on the say so of a "judicial authority"—any category 1 territory, not a judicial authority in the United Kingdom—whisked away without any effective protection from the United Kingdom's judicial system. Some of those offences are curiously ill-defined, such as computer-related crime, and others are not crimes in the United Kingdom in any case.

We can argue about whether that is the right policy to pursue. Indeed, we did so at length in Grand Committee. Concerns were expressed about the absence of habeas corpus in many continental European jurisdictions, and that pursuant to the investigative judicial system prevalent on the Continent, as opposed to the adversarial one in this country, there is a risk that the warrant may be used for fishing expeditions as opposed to the prosecution of crime. Concerns were also expressed about the judicial integrity of some of the countries that will shortly join the European Union.

We could argue about those issues, but they are not the point of my amendment. The new extradition system for category 1 territories does not correspond in any way to the meaning of the word "extradition" as understood by the man in the street. To him, extradition means a judicial process involving home and overseas judicial authorities, with appropriate checks and balances. Under this proposal there are no checks and balances. But perhaps we should not be surprised, because the European arrest warrant is contained in a Council framework decision in which paragraph 5 of the preamble reads: The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition"— "abolishing", my Lords— between member states and replacing it by a system of surrender between judicial authorities".

A sample of the warrant to be used is included later in the document. Paragraph (i) of the sample warrant refers to: Contact details of the person to contact to make necessary practical arrangements for the surrender".

The Government propose surrender, not extradition. They should now make that clear in the Criminal Justice Bill. That is why my amendment seeks to insert the words "and surrender" into Clause 234. My amendment is about honesty and clarity with the public. It is proposed in a spirit of helpfulness to the Government. The Prime Minister has said that he now wishes to get away from spin and to focus on reality. Here is a chance for his Government to begin to do so. I beg to move.

Lord Filkin

1 thank the noble Lord, Lord Hodgson, for taking us back to old, familiar territory. Several Members of the Committee, including the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, worked on the Extradition Bill, on which there was a good Committee process. I am slightly surprised that we are having a warm-up act today for issues that no doubt—if what the noble Lord advertises is true—will be a substantial process during further consideration of the Bill in your Lordships' House. For those reasons, such a debate would be better saved until that point.

I shall respond to the central thrust of the noble Lord's argument. Amendment No. 203 seeks to add reference to "surrender procedures" to the provisions concerning the existing legislation on extradition. Although I accept that the Opposition may not be wedded to the exact wording of the amendment, it is worth pointing out that, as drafted, it has an adverse effect on the provisions. Paragraph (a) should be read in conjunction with the definition of "extradition arrangements" at the end of subsection (3). If those extra words were inserted, that would no longer make sense, as "extradition and surrender arrangements" is not a term given meaning to by Section 3 of the Extradition Act 1989.

That leads us to the wider point that "surrender" is not a term used in legislation in this context. The 1989 Act talks only of "extradition", as does the Extradition Bill currently being considered by Parliament. I recognise the Opposition's contention, which we have discussed previously, that the Extradition Bill, and specifically Part 1, which implements the European arrest warrant, is concerned with surrender rather than extradition.

I am sure that the noble Lord, Lord Hodgson, has previously pointed to the use of the word "surrender" in the framework decision on the European arrest warrant. However, I repeat the Government's explanation that it is the Extradition Bill and not the framework decision that will govern the law in the UK.

The dictionary definition of extradition is, to send back an alleged criminal for trial in the country where the alleged crime was committed". That is what our existing legislation is about. It is also what the Extradition Bill is about. Extradition will take place, as it does now, only after due judicial process, including extradition under the European arrest warrant.

It is the existing extradition legislation, as listed in the clause, that governs our procedure now and uses the phrase "extradition arrangements". If, as we hope, the Extradition Bill is passed into law, that legislation will apply, with references to extradition and not surrender. I assure Members of the Committee that, regardless of which Bill receives Royal Assent first, as we hope both will, we will ensure that they are compatible and that any cross-references are correct.

The clause will apply to extradited prisoners in the future, including those extradited by virtue of the European arrest warrant system, in the same way that it would apply under our existing extradition law.

Having had the pleasure of debating the issues previously with the noble Lord, Lord Hodgson, I am not so optimistic to think that on this occasion, by some happy coincidence, I will necessarily have persuaded him. But I invite him to think that there will be a better opportunity to discuss the issues when we come to the Extradition Bill, rather than now. For that reason, without asking the noble Lord to spike his future thunder, it might be a good time to debate them then.

Lord Hodgson of Astley Abbotts

I will not, in any case, spike my future thunder. We shall hold that back until Wednesday week and Monday fortnight. The wording is not the point. I agree with the Minister that we are not wedded to the wording; it is the principle of honesty and openness about extradition proposals. I have no doubt that the Government will get their Extradition Bill—I do not know what its form will be, but they will get it. Had the Minister said that he would consider the issue of clarity and introducing the word "surrender" to the clause, I would have been prepared to rely on him to do that and to come back with an amendment later. Since he is not prepared to do that, I wish to test the opinion of the Committee.

6.9 p.m.

On Question, Whether the said amendment (No. 203) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 118.

Division No 2
CONTENTS
Ackner, L.	Elton, L.
Allenby of Megiddo, V.	Flather, B.
Alton of Liverpool, L.	Fookes, B.
Anelay of St Johns, B.	Fowler, L.
Arran, E.	Freeman, L.
Astor, V.	Gardner of Parkes, B.
Attlee, E.	Glentoran, L.
Biffen, L.	Griffiths of Fforestfach. L.
Blatch, B.	Hayhoe, L.
Bowness, L.	Henley, L.
Bridgeman, V.	Higgins, L.
Brooke of Sutton Mandeville, L.	Hodgson of Astley Abbotts;, L.
Brougham and Vaux, L.	Hooper, B.
Burnham, L.	Howe, E.
Byford, B.	Howe of Aberavon, L.
Campbell of Alloway, L.	Howell of Guildford, L.
Carlisle of Bucklow, L.	Hunt of Wirral, L.
Carnegy of Lour, B.	Hylton, L.
Cavendish of Furness, L.	Jenkin of Roding, L.
Colwyn, L.	Kimball, L.
Cope of Berkeley, L. [Teller]	King of Bridgwater, L.
Crickhowell, L.	Knight of Collingtree, B.
Cumberlege, B.	Lamont of Lerwick, L.
Denham, L.	Liverpool, E.
Dixon-Smith, L.	Lyell, L,
Eden of Winton, L.	McColl of Dulwich. L.
Elliott of Morpeth, L.	Mancroft. L.

Marlesford, L.	Renton of Mount Harry, L.
Miller of Hendon, B.	Seccombe, B. [Teller]
Montrose, D.	Selbome, E.
Moynihan, L.	Selsdon, L.
Mutton of Lindisfame, L.	Sharples, B.
Naseby, L.	Shaw of Northstead, L.
Newcastle, Bp.	Skelmersdale, L.
Northbrook, L.	Stewartby, L.
	Stoddart of Swindon, L.
Northesk, E.	Strathclyde. L.
O'Cathain, B.	Swinfen, L.
Park of Monmouth, B.	Thomas of Gwydir, L.
Pearson of Rannoch, L.	Truro, Bp.
Plumb, L.	Ullswater.V.
Reay, L.	Waddington, L.
Rees, L.	Wade of Chorlton, L.
Renton, L.	Wakeham, L.

NOT-CONTENTS
Acton, L.	Hogg of Cumbernauld, L.
Ahmed, L.	Hollis of Heigham, B.
Amos, B. (Lord President)	Howe of Idlicote, B.
Andrews, B.	Howells of St. Davids, B.
Archer of Sandwell, L.	Howie of Troon, L.
Ashton of Upholland, B.	Hughes of Woodside, L.
Bach, L.	Irvine of Lairg, L.
Barnett, L.	Islwyn, L.
Bassam of Brighton, L.	Jay of Paddington, B.
Berkeley, L.	Jones, L.
Bernstein of Craigweil, L.	King of West Bromwich, L.
Billingham, B.	Kirkhill, L.
Blackstone, B.	Lea of Crondall, L.
Borrie, L.	Lipsey, L.
Boston of Faversham, L.	Listowel, E.
Brennan, L.	Lockwood, B.
Brooke of Alverthorpe, L.	Lofthouse of Pontefract, L.
Brookman, L.	Macdonald of Tradeston, L.
Brooks of Tremorfa, L.	McIntosh of Haringey, L.
Campbell-Savours, L.	McIntosh of Hudnall, B.
Carter, L.	MacKenzie of Culkein, L.
Christopher, L.	Mallalieu, B.
Clark of Windermere, L.	Manchester, Bp.
Clarke of Hampstead, L.	Mar, C.
Clinton-Davis, L.	Masham of Ilton, B.
Cobbold, L.	Massey of Darwen, B.
Cohen of Pimlico, B.	Merlyn-Rees, L.
Colville of Culross, V.	Morris of Manchester, L.
Corbett of Castle Vale, L.	Murray of Epping Forest, L.
Dahrendorf, L.	Nicol, B.
Davies of Coity, L.	Palmer. L.
Davies of Oldham, L. [Teller]	Patel of Blackburn, L.
Desai, L.	Pendry, L.
Dixon, L.	Peston, L.
Donoughue, L.	Pitkeathley, B.
Dormand of Easington, L.	Plant of Highfield, L.
Dubs, L.	Ponsonby of Shulbrede, L.
Evans of Parkside, L.	Puttnam, L.
Evans of Temple Guiting, L.	Radice, L.
Falconer of Thoroton, L. (Lord	Ramsay of Cartvale, B.
Chancellor	Randall of St. Budeaux, L.
Farrington of Ribbleton, B.	Rendell of Babergh, B.
Faulkner of Worcester, L.	Rogan, L.
Filkin, L.	St. John of Bletso, L.
Gale, B.	Scotland of Asthal, B.
Gibson of Market Rasen, B.	Sheldon, L.
Golding, B.	Simon, V.
Goldsmith, L.	Smith of Leigh, L.
Goudie, B.	Stone of Blackheath, L.
Gould of Potternewton, B.	Symons of Vemham Dean, B.
Graham of Edmonton, L.	Taylor of Blackburn, L.
Grocott, L. [Teller]	Temple-Morris, L.
Harrison, L.	Thornton, B.
Haskel, L.	Tomlinson, L.
Hayman, B.	Turnberg, L.
Hilton of Eggardon, B.	Turner of Camden, B.

Warnock, B.	Wilkins, B.
Warwick of Undercliffe, B.	Williamson of Horton, L.
Whitaker, B.	Woolmer of Leeds, L.
Whitty, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.20p.m.

Clause 234 agreed to.

Clause 235 [Duty to release prisoners]:

Lord Filkin moved Amendment No. 203ZA: Page 136, line 33, leave out from "(1)" to end of line 35 and insert "is subject to section (Restrictions on operation of section 235(1) in relation to intermittent custody prisoners)

On Question, amendment agreed to.

Viscount Bridgeman moved Amendment No. 203A: Page 136, line 39, at end insert "(where that sentence is less than four years), or two-thirds of his sentence (in any other case) The noble Viscount said: For the reasons already given, I beg leave to divide the Committee.

6.21 p.m.

On Question, Whether the said amendment (No. 203A) shall be agreed to?

Their Lordships divided: Contents, 110; Not-Contents, 109.

Division No 3
CONTENTS
Addington, L.	Freeman, L.
Allenby of Megiddo, V.	Gardner of Parkes, B.
Anelay of St Johns, B.	Glentoran.L.
Arran, E.	Gray of Contin, L.
Astor, V.	Hayhoe, L.
Attlee, E.	Henley, L.
Barker, B.	Higgins, L.
Biffen, L.	Hodgson of Astley Abbotts, L.
Blatch, B.	Hooper, B.
Bowness, L.	Howe, E.
Bridgeman, V.	Howe of Aberavon, L.
Brooke of Sutton Mandeville, L.	Howell of Guildford, L.
Brougham and Vaux, L.	Hunt of Wirral, L.
Burnham, L.	Hylton, L.
Byford, B.	Jenkin of Roding, L.
Carlile of Berriew, L.	Kimball, L.
Carlisle of Bucklow, L.	King of Bridgwater, L.
Carnegy of Lour, B.	Knight of Collingtree, B.
Cavendish of Furness, L.	Lamont of Lerwick, L.
Colwyn, L.	Linklater of Butterstone, B.
Cope of Berkeley, L. [Teller]	Liverpool, E.
Craigavon, V.	Livsey of Talgarth. L.
Crickhowell, L.	Lyell, L.
Cumberlege, B.	McColl of Dulwich, L.
Dahrendorf, L.	Mackie of Benshie, L.
Denham, L.	Maddock, B.
Dholakia, L.	Mancroft, L.
Dixon-Smith, L.	Mar and Kellie, E.
Eden of Winton, L.	Marlesford, L.
Elliott of Morpeth, L.	Methuen, L.
Elton, L.	Miller of Chilthome Domer, B.
Flather, B.	Miller of Hendon, B.
Fookes, B.	Montrose, D.
Fowler, L.	Moynihan, L.

Murton of Lindisfarne, L.	Sharp of Guildford, B.
Naseby, L.	Sharples, B.
Newby, L.	Shaw of Northstead, L.
Newcastle, Bp.	Shutt of Greetland, L.
Northbrook, L.	Skelmersdale, L.
Northesk, E.	Smith of Clifton, L.
Northover, B.	Stewartby, L.
Oakeshott of Seagrove Bay, L.	Strathclyde, L.
O'Cathain. B.	Swinfen, L.
Park of Monmouth, B.	Thomas of Gresford, L.
Pearson of Rannoch, L.	Thomas of Gwydir, L.
Plumb, L.	Thomas of Walliswood, B.
Razzall, L.	Tordoff, L.
Reay, L.	Ullswater, V.
Rees, L.	Waddington, L.
Rennard, L.	Wade of Chorlton, L.
Renton, L.	Wakeham, L.
Rodgers of Quarry Bank, L.	Walmsley, B.
Seccombe, B. [Teller]	Warnock, B.
Selborne, E.	Watson of Richmond, L.
Selsdon, L.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Hilton of Eggardon, B.
Ahmed, L.	Hogg of Cumbemauld, L.
Amos, B. (Lord President)	Hollis of Heigham, B.
Andrews, B.	Howells of St. Davids, B.
Archer of Sandwell, L.	Howie of Troon, L.
Ash ton of Upholland, B.	Hughes of Woodside, L.
Bach, L.	Irvine of Lairg, L.
Bamett, L.	Islwyn, L.
Bassam of Brighton, L.	Jay of Paddington, B.
Berkeley, L.	Jones, L.
Bernstein of Craigweil, L.	King of West Bromwich, L.
Billingham, B.	Kirkhill, L.
Blackstone, B.	Lea of Crondall, L.
Borrie, L.	Lipsey, L.
Boston of Faversham, L.	Lockwood, B.
Brennan, L.	Lofthouse of Pontefract, L.
Brooke of Alverthorpe, L.	Macdonald of Tradeston, L.
Brookman, L.	McIntosh of Haringey, L.
Brooks of Tremorfa, L.	McIntosh of Hudnall, B.
Campbell-Savours, L.	MacKenzie of Culkein, L.
Carter, L.	Mallalieu, B.
Christopher, L.	Manchester, Bp.
Clark of Windermere, L	Massey of Darwen, B.
Clarke of Hampstead, L.	Merlyn-Rees, L.
Clinton-Davis, L.	Morris of Manchester, L.
Cohen of Pimlico, B.	Murray of Epping Forest, L.
Corbett of Castle Vale, L.	Nicol, B.
DaviesofCoity, L.	Patel of Blackburn, L.
DaviesofOldham, L.[Teller]	Pendry.L.
Desai, L.	Peston, L.
Dixon, L.	Pitkeathley, B.
Donoughue, L.	Plant of Highfield, L.
Dormand of Easington, L.	Ponsonby of Shulbrede, L.
Dubs, L.	Puttnam, L.
Eatwell, L.	Radice, L.
Evans of Parkside, L.	Ramsay of Cartvale, B.
Evans of Temple Guiting, L.	Randall of St. Budeaux, L.
Falconer of Thoroton, L. (Lord	Rendell of Babergh, B.
Chancellor)	Rogan, L.
FarringtonofRibbleton, B.	Scotland of Asthal, B.
Faulkner of Worcester, L.	Sheldon, L.
Filkin.L.	Simon, V.
Gale, B.	Smith of Leigh, L.
Gibson of Market Rasen, B.	Stone of Blackheath, L.
Golding, B.	Symons of Vernham Dean, B.
Goldsmith, L.	Taylor of Blackburn, L.
Goudie, B.	Temple-Morris, L.
Gould of Pottemewton, B.	Thornton, B.
Graham of Edmonton, L.	Tomlinson, L.
Grocott, L. [Teller]	Truro, Bp.
Harrison, L.	Tumberg, L.
Haskel, L.	Turner of Camden, B.

Warwick of Underdiffe, B.	Wilkins, B.
Whitaker, B.	Williamson of Horton, L.
Whitty, L.	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.30 p.m.

Clause 235, as amended, agreed to.

Lord Filkin moved Amendment No. 203AA: After Clause 235, insert the following new clause—

"RESTRICTIONS ON OPERATION OF SECTION 235(1) IN RELATION TO INTERMITTENT CUSTODY PRISONERS

(1) Where an intermittent custody prisoner returns to custody after being unlawfully at large within the meaning of section 49 of the Prison Act 1952 (c. 52) at any time during the currency of his sentence, section 235(1) does not apply until—

1. (a) the relevant time (as defined in subsection (2)), or
2. (b) if earlier, the date on which he has served in prison the number of custodial days required by the intermittent custody order.

(2) In subsection (l)(a) "the relevant time" means—

1. (a) in a case where, within the period of 72 hours beginning with the return to custody of the intermittent custody prisoner, the Secretary of State or the responsible officer has applied to the court for the amendment of the intermittent custody order under paragraph 6(1)(b) of Schedule 9, the date on which the application is withdrawn or determined, and
2. (b) in any other case, the end of that 72 hour period.

(3)Section 235(1) does not apply in relation to an intermittent custody prisoner at any time after he has been recalled under section 243, unless after his recall the Board has directed his further release on licence."

On Question, amendment agreed to.

Clause 236 [Power to release prisoners on licence before required to do so]:

Viscount Bridgeman moved Amendment No. 203B: Page 137, line 3, at end insert— ( ) In exercising his powers under this section the Secretary of State shall have regard to the matters specified in section 135(1).

The noble Viscount said: In speaking to Amendment No. 203B, standing in the names of my noble friends Lady Anelay and Lord Kingsland, I shall speak also to Amendments Nos. 204B and 204C, which are probing amendments. Clause 236 re-enacts, with some amendments, the provisions enacted in the Crime and Disorder Act 1998 that allow the Home Secretary to order the early release of prisoners on home detention curfew before their usual automatic release date. It allows prisoners to be released from custody up to 135 days—more than four months— before the half-way point of their sentences. Thus, if the Bill becomes law, someone sentenced to, for example, two years' imprisonment, might be released on the scheme by the Secretary of State after serving less than eight months in custody. The amendments in this group relate to the operation of that provision within the sentencing framework provided for in the Bill.

Amendment No. 203B requires the Secretary of State, when exercising his early release powers under Clause 236, to have regard to the purposes of sentencing set out in Clause 135(1), which were considered by the Committee in an earlier debate. The amendment gives the Government the opportunity to state the criteria by which the Secretary of State intends to operate the home detention curfew scheme in the future, particularly in relation to long-term prisoners. Will the Secretary of State bear in mind what is set out in Clause 135 when he makes the decision to release a particular prisoner? In particular, what would happen in a case where the trial judge had passed a deterrent sentence or a long determinant sentence with the aim of protecting the public—for example, on a drug dealer or a serial burglar?

Would the Secretary of State take the sentencing decision and the aims of the sentence, as set out by the sentencer, into account when deciding whether to release the prisoner early on home detention curfew or would the release be dictated by other factors? I hope that the Minister will comment on the way in which the Government envisage the aims of the sentencing provisions contained in Part 12 interacting with the early release provisions.

Amendment No. 204B probes the way in which the new sentence of intermittent custody will interact with home detention curfew. Under Clause 176, intermittent custody may be imposed for periods up to 51 weeks. The maximum number of "custodial days"—that is, the actual time spent in prison—is 90 days. During that 90-day period, the prisoner may be released temporarily on licence under Clause 176. It is plain from Clause 236(1)(b), to which Amendment No. 204B relates, that prisoners sentenced to intermittent custody may also be released on the home detention curfew scheme.

How do the Government intend that the two systems should operate together? What will be the difference in restrictions between release on licence under the intermittent custody sentence and release on the HDC scheme? Will offenders end up spending more time under restriction when they are theoretically "released" on the HDC scheme? Someone serving a sentence of intermittent custody might spend only one or two days per week in prison, while, on home detention curfew, the offender would spend the equivalent of at least three-and-a-half days under curfew each week. I would welcome the Government's view on how the two systems will work in practice.

Finally, Amendment No. 204C would require the Home Secretary to inform the victim of the offence when the offender is released on home detention curfew. When we debated a previous group of amendments, moved by my noble friend Lady Anelay, she reminded the Committee that the home detention curfew scheme is not mentioned by sentencers when sentence is passed. If the victim is in court, he or she will be left with a false impression of when the offender will be released. Even if HDC is mentioned in the future, the victim will never know precisely when the Secretary of State is going to exercise his power to release any given prisoner.

The amendment would therefore at least allow the victim to know how long the offender has actually served in prison, rather than entertain false notions based on a "headline" sentence which will never actually be served. I recognise that in some situations—for example, where revenge attacks are possible—it would be inappropriate to inform the victim that an offender had been released on home detention curfew. But surely, in general, victims ought to know that a decision to release an offender early on HDC has been made; a possibility about which they may, through no fault of their own, be entirely unaware. I look forward to the Minister's comments on these amendments. I beg to move.

Lord Carlisle of Bucklow

A few weeks ago the Government had acquired a reputation for excessive spin. In terms of this Bill, it appears to have moved very quickly from excessive spin to excessive stealth. Clause 176 introduces the concept of weekend imprisonment, which I welcome, but without any real announcements at all. In Clauses 235 and 236, effectively, we are doing away with the parole system as we have known it for many years. Instead of everyone serving a sentence of four years or more being eligible for consideration for parole at the half-way stage, under Clause 235 that half-term remission shall be automatic without the Parole Board having any say.

Amendment No. 203B, moved by my noble friend, applies to Clause 236, under which the Secretary of State is given the power to release at any moment any prisoner serving a fixed term of imprisonment— provided that it is a term of more than eight months— up to 135 days before the halfway stage. What is the cause of this sudden change of attitude? The parole system, which stood the test of time for many years, was accepted as a sensible way of releasing an offender back into society. One can only assume that the immediate release of prisoners at the half-way stage of a short sentence, rather than the present four-year sentence, is to help provide space in prisons for additional prisoners which will arise as a result of the clauses that we have had on serious offences, which we have considered, and those on murder, which we will consider shortly.

However, what concerns me far more is the power now being taken by the Home Secretary to add another 135 days' release, apparently at will, for any prisoner whose sentence is long enough. Looking at the example cited by my noble friend Lord Bridgeman, if a man is serving five years in prison, in future he will come out automatically after two-and-a-half years and, if the Home Secretary so wishes, he can be released 135 days before that halfway point.

Before he replies, can I humbly remind the Minister that the basic reason why the parole system came into disrepute for a time both in the public eye and in the eye of the judiciary—and was the cause of the subsequent review—was the fact that people given identical sentences by the courts were being released at different times? Conversely, two people serving different sentences could come out on the same day. In any event, the period of the release bore little relationship to the sentence passed.

Here we shall have a situation where sentence is passed and then the Secretary of State, apparently of his own volition and without being required to give any reason, will be able to say that prisoners A, B and C will serve 18 months of their three-year sentences, while prisoner D is to be let out 135 days earlier. One can only assume again that the power is there is to be used if required for the purpose of helping to reduce overcrowding in prisons and to make room for the additional prisoners that the rest of this Bill will produce.

Like my noble friend Lord Bridgeman, I should like to hear from the Minister what is the philosophy behind the intention to provide a power for the Secretary of State to release prisoners sentenced by the court 135 days before the time that they would normally be released. The date of release is therefore no longer to be dependent on prisoners serving half of their sentences, but to be dependent on serving half the sentence less anything up to 135 days on the whim of the Home Secretary of the day.

6.45 p.m.

Lord Filkin

As I am sure Members of the Committee know, the home detention curfew scheme—HDC—has been in operation since 1999. It is a process and a system which has been reasonably well tested in practice over that period.

Amendment No. 203B seeks to require the Secretary of State to take into account the purposes of sentencing, as set out in Clause 135, when considering prisoners for early release under the HDC scheme, while Amendment No. 204B would make those serving intermittent custody sentences ineligible for release under that scheme. Amendment No. 204C seeks to make it a statutory requirement that the Secretary of State must inform victims of crime of his decision to release prisoners on HDC unless there are exceptional reasons for not doing so.

HDC is a well-developed scheme which primarily concerns the promotion of resettlement, a key element in the purposes of sentencing. The scheme is based on individual risk assessments of prisoners carried out by prison governors. We think that the amendments should be resisted because they would seriously reduce the scope for governors to make reasoned judgments and release suitable prisoners.

Because the schemes have been in operation for some time, it has been possible to evaluate the judgment of prison governors. The evidence shows that they do appear to be well informed and skilled at making those judgments, when considered as regards the extent to which the HDC scheme is abused, or where there is failure as a consequence.

All prisoners released on HDC are in any event due to be released into the community within a short time. HDC provides a managed return to society for prisoners in the vital first few months of their release, while providing protection to the public. This applies equally to prisoners serving longer sentences as to those low-risk prisoners whom the courts have determined are suitable for intermittent custody.

We think there is an equally good reason why it should be tried and used for prisoners who have been serving long sentences. Those sentences will come to an end and it is in the interests of civil society generally to try to maximise the resettlement of such prisoners back into the community in ways that reduce the likelihood of reoffending. That is how HDC bites: it provides a technological means of enforcing movement restrictions according to the risk assessment before there is full release.

We further think that Amendment No. 204B should be rejected because preventing release under the scheme would have an unfair impact on intermittent custody prisoners. Potentially they could serve longer sentences than custody plus prisoners with the same custodial period.

There is already statutory provision for the victims of serious crimes to be informed of release arrangements. These apply to those released on HDC as they do to any other method of release. In addition, probation areas have the discretion to provide information to the victims of other crimes as well.

At the risk of repeating myself, I want to emphasise that HDC is primarily a tool to facilitate resettlement and it is with this in mind that the Secretary of State will make a decision as to eligibility, ruling out those offenders who are judged to be high risk.

I shall speak in a little more detail about the issue of informing victims of a decision to release prisoners on HDC. A statutory duty already exists in Section 69 of the Criminal Justice and Court Services Act 2000 for the National Probation Service to contact all victims of sexual and violent crimes where the offender was sentenced to imprisonment for 12 months or more. Victims are asked whether they wish to make representations about whether the offender should be subject to certain conditions or requirements upon final release, and whether the victim wishes to receive information about release arrangements.

Where resources allow, probation areas have the discretion to offer the contact scheme to victims not included in the standard list of offences where it is appropriate. An additional statutory duty contained in the HDC provisions would duplicate the existing provisions, but would also widen the requirement to contact victims of any crime, irrespective of its seriousness.

I turn now to the relationship between HDC and intermittent custody. HDC operates by kicking in on the days that the offender would otherwise be held in custody. He will therefore be on curfew on those days, while on the other days of the week he will be on his intermittent custody licence, with its conditions. So, in that sense, the person serving the sentence will benefit from being on HDC; otherwise he would have been caught.

The noble Lord, Lord Carlisle of Bucklow, has asked about these changes to the parole system. The short answer to that is that the Halliday report, which looked into these issues, set out a system of automatic release at the halfway point as part of a process of trying to increase the likelihood that there would be stronger supervision arrangements in place over the second half of the sentence. The most specific example of an immediate benefit is that anyone released at the halfway point will be under the terms of the licence restrictions right throughout the second half of his term. Under current arrangements, after the three-quarter point has been passed, there is no effective control. In particular, for those serving long sentences, one can see that this system strengthens the ability of the Home Secretary to control a person under a form of governance.

The noble Lord also asked about the 135 days' release. The maximum HDC curfew point is currently 135 days. That came into force on 14th July through an affirmative order, which was discussed in this House and in another place. That does not necessarily mean that it will satisfy the noble Lord, Lord Carlisle, but at least it was considered in this Chamber at that point.

I hope that those comments on these amendments are helpful to noble Lords. They will put into the record the arguments for, at least, further reflection.

Lord Carlisle of Bucklow

I am grateful for and accept the explanation why the Government have decided to change the system from one in which a prisoner is merely eligible for parole at the half-way stage to one in which he is automatically released from the second half of the sentence.

I still do not understand—with respect, I do not believe that the Minister answered the question— where the 135 days comes in. Surely that must mean that, as a result of whoever's whim it is, people given the same sentence will find themselves serving different lengths of time in prison.

Lord Filkin

I do not want to give the impression that I am avoiding the question, but I genuinely believe that I would give a better answer if I write to the noble Lord, Lord Carlisle, on that issue setting out the full argumentation. Perhaps he will bear with me in that respect.

Viscount Bridgeman

I am grateful to my noble friend Lord Carlisle of Bucklow for his support and to the Minister for his reply. We shall read Hansard carefully in anticipation of the Minister's letter. We may need to revisit this issue from a slightly different perspective on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin moved Amendment No. 204: Page 137, line 5, leave out "aged 18 or over

The noble Lord said: In moving the amendment on behalf of my noble friend Lady Scotland of Asthal, I shall speak also to Amendment No. 205. The amendments seek to extend the provisions for early release on home detention curfew to under-18s.

Under-18s were originally excluded from the scheme because of concern that electronic tagging might not be appropriate for young offenders. Before making a judgment on that question, the Government wished to await the evaluation of the curfew order pilots with electronic monitoring for 10 to 15 year-olds. The pilots have now been evaluated and the disposal has been made available throughout England and Wales.

In the years since the home detention curfew was introduced for over-18s, the use of electronic monitoring for under 18 year-olds has become increasingly widespread. For example, eligible offenders subject to a detention and training order of eight months or more are released one or two months early on an electronic tag.

Detention training orders are subject to a separate set of legislative provisions under Section 91, but the Government see no good reason why Section 91 offenders who are under 18 and meet the eligibility criteria should not also be released on an electronic tag. The amendments respond to ongoing litigation and reflect amendments recently made by order to current legislation.

Amendments Nos. 204CA to 204CF amend the method of calculation of the period spent on home detention curfew, which is tapered according to the length of the sentence. The tapering mechanism as currently drafted is not consistent with the 1991 Act as it significantly reduces the maximum curfew period available for different sentence lengths. For example, under the 1991 Act, a prisoner serving a 12-month sentence would serve three months in custody and three months on home detention curfew. As the clause is currently drafted, such a prisoner would serve four-and-a-half months in custody and one-and-a-half months on curfew. The amendments will correct this position and provide curfew periods consistent with the maximum curfew periods currently achieved through the Criminal Justice Act 1991.

Amendment No. 204MA prevents prisoners who have been recalled to prison for failing to comply with the curfew condition from being re-released on HDC during the current sentence. It is not appropriate for prisoners who have breached their curfew to be immediately eligible for consideration for release on HDC for reasons that I hope are self-evident. The amendment prevents this possibility. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 204A to 204C not moved.]

Lord Filkin moved Amendments Nos. 204CA to 204CF:

Page 137, line 13, leave out "8" and insert "6".

Page 137, line 15, leave out "6" and insert "4".

Page 137, line 16, leave out "three-quarters" and insert "one-half".

Page 137, line 18, leave out "56" and insert "42".

Page 137, line 20, leave out "42" and insert "28".

Page 137, line 21, leave out "three-quarters" and insert "one-half".

On Question, amendments agreed to.

Viscount Bridgeman moved Amendment No. 204D:

Page 137, line 23, at end insert—

( ) the court has recommended to the Secretary of State that subsection (1) should not apply in the interests of justice,

The noble Viscount said: In moving Amendment No. 204D, I shall speak also to Amendments Nos. 204E to 204M and to Amendment No. 204N, all of which are tabled in the names of my noble friends Lady Anelay and Lord Kingsland.

The amendments are tabled in order to probe the precise scope of the expanded home detention curfew provisions contained in Clause 236. A number of categories of prisoner are already excluded by statute from the HDC scheme, such as those liable to deportation and registered sex offenders. The amendments seek to add to those excluded categories and to ascertain the arrangements by which a variety of types of prisoner will be released on the modified HDC scheme provided for in the Bill.

Amendment No. 204D would allow the court to specify when sentencing that a prisoner should not be released early on the HDC scheme. In the case of those offenders from whom the court considers the public need protecting but who might otherwise qualify for the HDC scheme, would not this enable victims and the public to feel sure that an offender would not be released up to four months earlier than the standard release date? This might be a particularly important safeguard in the case of those serving very long sentences indeed, to which the next three amendments in the group relate.

Amendments Nos. 204E, 204F and 204G would exclude from the HDC scheme those offenders sentenced to terms of at least seven, 10 or 14 years respectively. Such offenders are presently excluded from the HDC arrangements by virtue of the fact that the scheme applies only to short-term prisoners serving less than four years. However, they will be eligible for release on HDC if the Bill is enacted because the restriction of the scheme to short-term prisoners is not replicated in Clause 236.

The amendments simply pose the question of whether all prisoners serving determinate sentences— perhaps those serving sentences of 14 years or more for very serious offences such as drug trafficking, armed robbery, manslaughter or even terrorist crimes— ought to be eligible for early extra release on the HDC scheme. Can the Minister say whether Clause 236 will allow those already serving such sentences—of whom there must be many in Her Majesty's prisons—to be released early on HDC, or will it apply only to those sentenced after commencement?

Does the Home Secretary intend to operate any separate policy in relation to those sentenced to long terms of imprisonment or who have committed the most serious offences, or will the same eligibility criteria apply regardless of whether the sentence is 12 months or 12 years?

As regards Amendments Nos. 204H, 204J and 204K, can the Minister clarify whether any special policy will be put in place in respect of those who have been sent to prison after committing an offence against a child or a drug trafficking offence, particularly if they have been sentenced to long terms of imprisonment for very serious crimes?

Will he also comment on the scope for the early release of those who have been convicted of the specified violent or sexual offences referred to in Clause 215 but who have been sentenced to ordinary determinate terms of imprisonment rather than detention for public protection or extended sentences? What criteria will govern the release of such prisoners, who may have committed very serious crimes?

Amendment No. 204L would prevent the release of a prisoner on HDC if the Secretary of State's view was that it was more likely than not that the prisoner would re-offend while on HDC. I sincerely hope that this is indeed the position at the moment in relation to those who are risk assessed after being released early on HDC and that the Minister can confirm that the amendment is reflected in the Secretary of State's policy.

Will the Minister also comment on the risk assessment for those serving short prison sentences who are released on the presumptive HDC scheme introduced last year who, as I understand it, do not have to go through precisely the same sort of checking as those who are released on the standard scheme? Will the Minister, in responding to the amendment, also comment on the risk assessment process more generally, and how successful it has been in preventing the release of those who might reoffend while on HDC?

I commend Amendments Nos. 204M and 204N to the Minister as alternatives to government Amendment No. 204MA, which was debated in the previous group. Amendment No. 204N would prevent the release of a prisoner who had on any occasion— whether during his present sentence or a previous one—been released on the home detention curfew scheme. While I welcome the Government's decision to include Amendment No. 204MA, I simply ask the Minister why the Government think that someone who has breached the licence conditions of a previous early release on HDC so drastically that he or she has been recalled to prison is a fit person to benefit from the scheme a second time.

Amendment No. 204M is on a similar point. Why should a person who has previously been released early on HDC and has committed a further serious offence, justifying a new prison sentence, be released early on HDC a second time? I should be grateful for clarification of the Government's position on these points. I beg to move.

7 p.m.

Viscount Colville of Culross

I do not know what the noble Lord, Lord Filkin, will do about these amendments, but I should be very grateful to be enlightened either by him or the noble Viscount, Lord Bridgeman, on Amendment No. 204L. This seems to be another of these occasions on which we are enacting power for the Secretary of State, without advice from anybody, to refuse to give somebody his liberty. Presumably he will have to give reasons for this. Is this consistent with the European Convention on Human Rights and therefore the Human Rights Act? I seriously doubt whether it is but, at any rate, it certainly deserves consideration.

Lord Filkin

I should like to read some general principles into the record and turn to the specifics later on.

Amendment No. 204L requires the Secretary of State to exclude prisoners who are likely to commit an offence during the curfew period from release under the scheme. The well established risk assessment process carried out by prison staff already takes into account the likelihood of reoffending. In fact, it is, self-evidently, one of the central focuses for making that judgment. Governors do not, nor should they, release prisoners if they consider that there is a significant risk that the prisoner will reoffend during the curfew period. It is impossible for the risk assessment process to guarantee a successful curfew, but governors have proved themselves to be effective assessors of risk. The vast majority of curfewees—if I can use that expression—complete the curfew period without any problems at all. Less than 3 per cent of curfewees are reported to reoffend during the curfew period.

The noble Viscount, Lord Bridgeman, also asked the question the other way round. In a sense it was a comment on the risk assessment and on preventing the early release of people who should not be released early. It is almost impossible to know what people who had not been released might have done if they had been released. I am not being flippant—all we know is what happened to those who were released. Again, one would expect that governors, mindful of their duties, would be prudent and cautious on early release as the statistics I have given bear out.

Amendment No. 204M seeks to prevent prisoners previously released on HDC being released on the scheme at any time in the future. The amendment would limit the scheme to prisoners who had never previously been released on HDC, even where they had completed the curfew period successfully. We consider that the risk assessment process adequately takes account of the previous criminal history of prisoners and persistent offenders, and that it would be unduly harsh to limit eligibility to first-time offenders.

Amendment No. 204D seeks to establish a right for the sentencing court to prohibit an offender's future release on HDC, in the interests of justice". The amendment would mean that sentencers could direct, at the point of sentence, that an offender must not be released on HDC. Suitability for HDC might therefore be determined months or even years in advance of a prisoner's release date and would remove the discretion of the Secretary of State—or, more specifically, the governor—in the decision-making process.

HDC assessments are purposely undertaken near to the potential date for release so that the most relevant and up-to-date information is taken into account. That feels right. For example, behaviour in custody, success in addressing offending behaviour and domestic circumstances are all matters which are most appropriately considered near to the release date. In some cases it is only near to the release date that they can be considered. The seriousness of the original offence and the previous criminal record are also taken into account and should be taken into account.

Amendments Nos. 204E, 204F and 204G seek to limit the maximum eligible sentence length to 14, 10 and seven years respectively. The amendments would, in varying degrees, limit access to early release for longer sentence prisoners. This would reduce the resettlement opportunities for such prisoners and would have a detrimental impact on prison population projections.

Resettlement opportunities are the central focus. HDC is intended to make resettlement more likely. People who are serving long sentences will come out at some point in time—that is a fact. The issue is how to maximise the success of that. The discretion is with the governors, they have to make the judgment. It is not a question of whether to impose a custodial sentence— that has already been decided by the court—but whether to grant abatement. It is wise to give them that discretion across the full span of offences. No doubt they will be even more mindful of people who are serving longer sentences and have had repeated criminal convictions when they exercise that judgment.

Amendments Nos. 204H, 204J and 204K seek to exclude broad categories of offenders on the basis of offence committed rather than the risk presented at the point of release. For the same reasons, we think that the assessment of the risk of reoffending at the point of release is the right point at which to make the decision. It is good that it is not unduly fettered.

Amendment No. 204H seeks to exclude prisoners who have committed an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000. But many of the offences listed in that part are sexual offences which already render prisoners statutonly ineligible in these circumstances. Offences involving child cruelty fall under the administrative presumption against release, which was introduced on 14th July 2003. So I hope that gives strong comfort to the noble Viscount, Lord Bridgeman.

Amendment No. 204J seeks to exclude prisoners serving sentences for offences involving the production and dealing in class A drugs. Amendment No. 204K seeks to exclude prisoners serving sentences for violent and sexual offences listed in Schedule 12. This would exclude those not given extended sentences for these offences.

Prisoners subject to the registration requirements of the Sex Offenders Act 1997 are already excluded from HDC. Other sexual offenders and some violent offenders are subject to the administrative presumption against release.

Amendment No. 204N—the last amendment in this group, noble Lords will be relieved to hear—seeks to exclude prisoners who have previously been released on HDC and have been recalled for breaching the curfew conditions.

The reason the Bill removes the exclusions set out in the 1991 Act is that it was considered that previous HDC breaches, which may have taken place a number of years ago, would unnecessarily limit access to HDC for otherwise suitable prisoners. One trusts that prison governors are not foolish. For someone who has previously breached an HDC, the burden of the governor's consideration as to whether that person is likely to breach in the future must be a material consideration. But we do not think there should be an automatic exclusion because there could be circumstances in which a governor quite wisely decides there has been a change of behaviour sufficient to justify the release.

I was also asked whether the amendments are compatible with the ECHR and our own Human Rights Act. They are indeed, although if it would be helpful I would be delighted to write in more detail to the noble Viscount, Lord Colville, on that point, with copies to those on the Opposition Benches.

I was asked about the risk assessment process. Governors consider a range of issues before deciding to grant release, such as current offences, previous criminal history, behaviour in custody and success in addressing offending behaviour. They also judge the risk of breaking the curfew or of reoffending during the curfew period. Each individual case is different, and the risk assessments and process reflect that. Those convicted of drug dealing offences are not considered for release under the presumptive scheme, and governors may refuse release if there are compelling reasons for doing so.

] fear that I am in danger of boring the Committee. Let me conclude by saying that 90 per cent of offenders have successfully completed HDC without any problems, and less than 2 per cent have been reported as reoffending on HDC. I hope that clarification is helpful.

Viscount Colville of Culross

I am grateful to the Minister for saying that he will write to me. I am interested only in the point in relation to Amendment No. 204L, because it is different from the others. If he could tell me about that, it would be quite enough.

Lord Filkin

I was threatening not a very long letter, but a focused letter on that specific point.

Viscount Bridgeman

I am grateful to the Minister for undertaking to write to the noble Viscount, Lord Colville, as the question was addressed jointly to me. I am also grateful for a comprehensive reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 204E to 204 M not moved.]

Baroness Scotland of Asthal moved Amendment No. 204MA:

Page 137, line 34, at end insert— (ff) the prisoner has been released on licence under this section during the currency of the sentence, and has been recalled to prison under section 244(1 )(a),'

On Question, amendment agreed to.

[Amendment No 204N not moved.]

Baroness Scotland of Asthal moved Amendment No. 205:

Page 138, line 11, leave out paragraph (a).

On Question, amendment agreed to.

Clause 236, as amended, agreed to.

Clauses 237 to 239 agreed to.

Clause 240[Licence conditions]:

Baroness Scotland of Asthal moved Amendment

Nos. 205A to 208: Page 139, line 37, after "(6)" insert "and section (Licence conditions on re-release of prisoner serving sentence of less than 12 months)" Page 140, line 1, after "include" insert— (i) Page 140, line 5, at end insert "and (ii) such other conditions of a kind prescribed for the purposes of this paragraph as the Secretary of State may for the time being consider to be necessary for the protection of the public and specify in the licence. Page 140, line 31, leave out from "licence" to end of line 32 and insert "at any time while a curfew condition required by section 242 is in force Page 140, line 36, after "subsection" insert "(2)(b)(ii) or

On Question, amendments agreed to.

Clause 240, as amended, agreed to.

Baroness Scotland of Asthal moved Amendment

No. 208A: After Clause 240, insert the following new clause—

"LICENCE CONDITIONS ON RE-RELEASE OF PRISONER SERVING SENTENCE OF LESS THAN 12 MONTHS (1) In relation to any licence under this Chapter which is granted to a prisoner serving one or more sentences of imprisonment of less than twelve months and no sentence of twelve months or more on his release in pursuance of a decision of the Board under section 243 or 245, subsections (2) and (3) apply instead of section 240(2). (2) The licence—

1. (a) must include the standard conditions, and
2. (b) may include—
1. (i) any condition authorised by section 62 or 64 of the Criminal Justice and Court Services Act 2000 (c. 43), and
2. (ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of section 240(4)(b)(ii) as the Secretary of State may for the time being specify in the licence.

(3) In exercising his powers under subsection (2)(b)(ii), the Secretary of State must have regard to the terms of the relevant court order. (4) In this section "the standard conditions" has the same meaning as in section 240.

On Question, amendment agreed to.

Clauses 241 and 242 agreed to.

Clause 243 [Recall of prisoners while on licence]:

Baroness Scotland of Asthal moved Amendment

No. 208B:

Page 141, line 42, at end insert— (4A) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 176(l)(b) in the intermittent custody order.

On Question, amendment agreed to.

Clause 243, as amended, agreed to.

Clauses 244 to 252 agreed to.

Clause 253 [Interpretation of Chapter 6]:

Baroness Scotland of Asthal moved Amendment No. 208C:

Page 146, line 36, at end insert— "intermittent custody prisoner" means a prisoner serving a sentence of imprisonment to which an intermittent custody order relates;

On Question, amendment agreed to.

Clause 253, as amended, agreed to.

7.15 p.m.

Lord Lloyd of Berwick moved Amendment No. 209: Before Clause 254, insert the following new clause—

"AMENDMENT TO MURDER (ABOLITION OF DEATH PENALTY) ACT 1965 In section 1 (1) of the Murder (Abolition of Death Penalty) Act 1965 (c. 71) (abolition of death penalty for murder), for the word "sentenced" there is substituted "liable".

The noble and learned Lord said: We come to a very important and, I suspect, very contentious part of the Bill.

Nearly 40 years ago, the sentence of capital punishment was abolished and a sentence of imprisonment for life was substituted. Nearly 15 years ago, a Select Committee of this House was set up to consider the definition of the crime of murder and, in particular, whether the sentence of life imprisonment should be mandatory or discretionary. The chairman of that Select Committee was Lord Nathan, whom I believe to have been a much respected Member of the House. Many distinguished Members of the House sat on the committee, including my noble and learned friend Lord Ackner, and the noble Lords, Lord Windlesham, Lord Harris, and Lord Campbell of Alloway.

The committee heard a great deal of evidence about how the mandatory sentence had worked in practice. The evidence came from judges, academics and from many others, including the noble Viscount, Lord Colville of Culross. With only one dissenting voice, the committee reached the conclusion that the sentence for murder should not be mandatory.

The reasoning was simple. Everything that was intended to be achieved in 1965 by making the life sentence mandatory could be equally well achieved, and perhaps better, by making it discretionary, so that the sentence of life imprisonment could be reserved for the really serious cases—that is to say, cases that on any view deserved a life sentence. In that way, murder would be brought into line with other very serious crimes that carry a maximum sentence of life imprisonment.

The amendment would give belated effect to the recommendation of the Nathan committee. The report was debated in the late 1980s, and almost everyone who spoke in the debate spoke in favour of the committee's recommendations. If the amendment were passed, the rest of Chapter 7 of Part 12 of the Bill, including Schedule 17, would fall to the ground.

The argument in favour of making the life sentence mandatory is, of course, that murder is a uniquely serious crime. That is the argument which is always advanced but I hope to persuade the Committee that that is not so. Even if the crime of murder were confined to the deliberate taking of another life— which it is not—the seriousness of the crime would still vary greatly from one case to another. No one would argue, for example, that a life sentence is always appropriate in a case which is in truth a case of what is often called "mercy killing".

The Committee will perhaps remember the case of the Maw sisters in the 1980s on which the Nathan Committee commented. They were found guilty of killing their father, and there was no question but that the killing was deliberate. However, the sentence of three years which was imposed on the Maw sisters was generally regarded as being too heavy, not too light, because of the circumstances of the particular case. So deliberate killing of another does not of itself make the crime of murder uniquely serious.

However, the crime of murder is not confined to the deliberate taking of another life. The intention to cause the victim serious harm— as all the lawyers present will know only too well—is enough. If the mandatory sentence for murder were abolished— which is the purpose of this amendment—judges could then distinguish between an intention to kill and an intention to cause serious harm falling short of an intention to kill but which happens to result in death. They could then make the punishment fit the particular crime of murder instead of imposing the same punishment on all. That is why the judges who gave evidence to the Nathan Committee, and others, were overwhelmingly opposed to the mandatory sentence of life imprisonment for murder.

Let me give an example from my own experience because I always find that one example carries more weight than any amount of theoretical argument. Members of the Committee may remember the Clegg case. Clegg was a private soldier in the Parachute Regiment serving in Northern Ireland. He tried to stop a car after it had been driven through a checkpoint. He fired after the car had passed him and killed one of the passengers who happened to be a joyrider. On the facts as found by the noble and learned Lord, Lord Hutton, then Lord Chief Justice of Northern Ireland, Clegg was found guilty of murder. That verdict was inevitable even though Clegg had acted in the course of his duty.

Clegg then appealed to the House of Lords and his conviction was upheld—a decision of which I was a party. It was not open to us to reduce the conviction to one of manslaughter so there was, as the law now stands and stood then, no alternative to a sentence of imprisonment for life. Fortunately, there was a rehearing on the facts and on that rehearing the conviction was quashed. So in that sense and in that sense only the story could be said to have had a happy ending.

But the point of referring to the case is simply this: to my mind it was quite wrong that Clegg should have had to be sentenced to imprisonment for life for a crime which would otherwise have carried a short, perhaps very short, sentence of imprisonment. To have to impose a life sentence in such a case makes a mockery of the sentencing process, and may even paradoxically reduce the deterrent effect of a true life sentence, as the Nathan Committee pointed out. It is the very opposite of honesty in sentencing to which I believe this Government are committed.

So let us not hear any more about murder being a uniquely serious crime. Some murders are, of course, as serious as any crime could be but others emphatically are not. To have to impose the same nominal sentence for all simply makes no sense. I hope that when she replies the Minister will not rely on that old, old cliche that to abolish the mandatory sentence for murder would send out the wrong signal. If she says that, I should be very interested to know to whom the signal is intended to be sent and by whom it is intended to be received. I beg to move.

Lord Ackner

I am a co-proposer of the amendment and I should like to add a little to what has been said. It is often thought that the mandatory life sentence was a compromise which induced the legislature to drop the mandatory death sentence. It is often thought that to alter that would be going back on that compromise. Those who say that are wrong about what happened.

I shall read from the report of the Nathan Committee at page 32. It stated: During the debates on the Murder (Abolition of Death Penalty) Bill in 1965, there was a strong body of opinion in Parliament that the sentence for murder should be discretionary. The opposition to the mandatory sentence was led by the then Lord Chief Justice, Lord Parker of Waddington, who moved an amendment at the Committee Stage to make the sentence discretionary. His amendment was accepted by 80 votes to 78. Eleven Peers who held high judicial office voted. All but one were in favour of the amendment. The exception was the Lord Chancellor, Lord Gardiner, whose opposition was in accordance with Government policy. In the face of Government opposition and disquiet among the sponsors of the Bill, Lord Parker proposed alternative amendments on Report which maintained the mandatory life sentence, but gave the court power to recommend a minimum period of time which, in its view, should be served. These amendments were accepted without a division in either House". There is this constant reference to murder being a uniquely heinous crime. Lord Hailsham, a former Lord Chancellor, dealt with that point in his speech in R v Howe in the House of Lords in 1987. He said: Murder, as every practitioner of the law knows, though often described as one of the utmost heinousncss, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, 'mercy killing of a beloved partner". The report continues: Some cases of murder will be less grave than some cases of attempted murder, or of manslaughter, or of causing grievous bodily harm with intent. The organisation JUSTICE has examined in some detail over 200 cases over the last 30 years and concluded that the circumstances giving rise to murder vary infinitely so that the relative heinousness of the crime covers the whole spectrum from the tragic mercy killing to the most sadistic type of sex murder of young children". The noble and learned Lord who was then Lord Chief Justice, who gave evidence before the committee, made the point—it is very important— that, in discretionary life cases, the seriousness of the offence is often greater. The report recorded that: The opinion of the Lord Chief Justice is that the problem of dangerousness arises in a more acute form in relation to offences other than murder. Rapists and arsonists may be much more likely to commit the same sort of offences than a murderer; and they are dealt with by passing a life sentence or a sentence which is somewhat longer than would have been necessary without the element of risk. The abolition of the mandatory sentence would involve only a slightly increased risk.

In so far as a mandatory life sentence is justified by the special problems of estimating the chances of future violence by those who have killed once, the existence of the special defences such as diminished responsibility and provocation"— as Members of the Committee know, they reduce murder to manslaughter—

introduced in earlier times for different purposes, undermines the logic of the sentence by excepting from its scope just those offenders who are most likely to prove dangerous for the future". The Home Secretary has now lost his power to decide how long a murderer should remain in prison. That happened as a result of a decision of the legal committee of this House, which advised that it would be contrary to European jurisprudence for a politician to have any say in sentencing. Subsequently, a decision of the European Court of Human Rights said just that. What we seek—that the sentence on murder should be discretionary—will no longer take away from the Home Secretary something that he possesses. That is gone already, which was really the political justification for maintaining that the sentence be mandatory, with discretion not entering into it.

I therefore submit that it is quite out of date to hang on to that anomaly. It is wrong from the point of view of evaluating the nature of the crime. A consistent approach—leaving the judges to decide the appropriate sentence—should be allowed to stay. I make it perfectly clear, as did the report, that there would be very lengthy sentences in the really serious cases and, in some cases, there would be whole-life sentences so that the murderers never came out of prison. I support the amendment.

7.30 p.m.

Lord Thomas of Gresford

The noble Baroness, Lady Kennedy of The Shaws, talked earlier about the duty of a government to lead and educate public opinion. However, on the question of a mandatory life sentence no government have yet had the guts to lead and educate the public on the realities of murder cases, about which the noble and learned Lords have spoken so movingly.

Those of us who regularly practise in the courts know only too well that there are great differences between cases. For example, the noble and learned Lord, Lord Lloyd of Berwick, referred to the case of Clegg, a soldier. As he spoke, my mind was taken back to a case where I was on one side and Lord Williams of Mostyn—I have been thinking about him very much recently, for obvious reasons—was on the other. That involved the miners during the miners' strike who dropped a concrete block and killed a taxi driver in a taxi taking a worker to work. In all sorts of cases, the degree of culpability differs. Judges are well used to distinguishing a killing caused through depravity from one caused through weakness or a domestic quarrel that is over in a flash, and so on.

The noble and learned Lord, Lord Ackner, referred to the fact that the mandatory life sentence distorts the law. The law of provocation is a highly difficult and complex area that always causes problems. It causes many trials to take place where the facts are gone into at length over many days, simply to establish whether the jury is satisfied that the defendant was provoked into what he was doing and that the provocation was such that a reasonable man would have been so provoked, and therefore the crime is reduced from murder to manslaughter. The problems that have arisen with the law of provocation, particularly with people who suffer physical or mental disability, distort the law entirely.

Again, issues are discussed at length about the intention of a particular person. We have no distinction in this country between an intent to kill and one to cause some really serious injury. Those distinctions exist in other jurisdictions, where differences of sentence can then be passed.

The Liberal Democrats have for many years strongly supported the abolition of the mandatory life sentence. We are wholly behind the amendment.

Lord Clinton-Davis

I was much moved by the speeches of the noble and learned Lords who spoke to the amendment. They made a very powerful case. I do not think that I have considered carefully the consequences of the provision. The noble and learned Lord, Lord Lloyd, said that Chapter 7 would be abrogated, as I understand it. I had not realised— perhaps it is my fault—that that would be the case.

We are considering a vital amendment at 20 minutes to eight. The whole Committee should consider carefully what has been said. I therefore ask the noble and learned Lords if they would be prepared at this late stage to come back to the issue on Report. 1 ask that because they have raised a most important issue. I do not know how many people have spoken tonight— maybe three or four—but I am not sure that the issues on which they have embarked have been carefully considered. We need to do that, because what has been said is of immense importance to the credibility of this place.

I therefore ask the noble and learned Lords whether they are prepared to do that, because we should not go into the Lobby lightly about this issue. What has been said today should be considered by my noble and learned friends very carefully, but I am sure that the consequences are of enormous importance. For that reason, I beg the noble and learned Lords to say today that they are prepared to return to the matter on Report.

Lord Renton

I am sure that the noble Lord who has just spoken is quite right in saying that this is a very important matter and that the final decision should be taken by your Lordships not tonight, but on Report. I should confess that I voted and spoke against the 1965 Act. That may be because I had already done what very few living people have done: I prosecuted and defended in a number of murder cases as long ago as 1938 and 1939, because I was the so-called circuit junior of the south-eastern circuit. Also, during my four and a half years as a Home Office Minister, where the late Lord Butler of Saffron Walden was the Home Secretary throughout, the death penalty was still in existence. He had to deal with those matters on his own. He bravely never tried to pass the buck to any of us or to any of his civil servants. He took the responsibility himself of deciding whether the death penalty should be imposed.

Those of us who were against the abolition of the death penalty were worried because we felt it almost certain that the number of murders would increase, and I am sorry to say that they have increased. Although they fluctuate a bit, they are now of a numerical character that never existed when there was a death penalty. However we must take things as we find them and not as they are. There is no question of the death penalty being restored. As has been so lucidly articulated by the noble and learned Lord, Lord Lloyd of Berwick, supported by the noble and learned Lord, Lord Ackner, the question is whether the Home Secretary should have the discretion to decide the lengths of the time to be spent in prison.

I must confess that I have, I hope, learnt to live with the times, in spite of the views which I used to hold and which I have already described. There is a lot to be said for what the noble and learned Lord has described. I will be interested to hear what the noble Baroness, Lady Scotland of Asthal, has to say about that, but I am sure that both Houses of Parliament—and the Bill provides the opportunity—should now apply their minds to whether the Home Office should have discretion, as the noble Lord, Lord Thomas of Gresford, also suggested, or whether the rather rigid results should be prolonged.

That is a very important matter. I hope that we do not decide on it tonight. I hope that it will come up again on Report as the noble Lord has suggested.

Lord Borrie

It is appropriate that in 2003, nearly 40 years after the 1965 Act abolished capital punishment, the matter of a mandatory life sentence should be questioned. We must all be grateful to the noble and learned Lords for introducing their amendment. They have both made powerful and eloquent speeches. The most powerful part of the speech of the noble and learned Lord, Lord Lloyd, was his indicating how false, how dishonest, how unreal and how unhelpful to the public is the mandatory life sentence, which in so many circumstances does not mean what it says and is not intended by the judge to mean what he has to say. That is an unreality with which we have lived over all these years, for reasons which we can partially understand from the history that the noble and learned Lord, Lord Ackner, has described. The reasons are political in part, such as the need to reassure the public, many of whom were not happy about the abolition of capital punishment. Surely, therefore, it is timely.

I support my noble friend Lord Clinton-Davis in asking that the proponents of the amendment do not push it tonight. If it were carried, there would be some unfortunate outcomes, including our then being unable to discuss the controversial detail, which deserves to be discussed, of the principles set out in Schedule 17 of what different types of murder justify different types of minimum starting points for sentencing and whether someone other than the judge—namely, Parliament—should become involved with detail of this sort. That is worthy of discussion, these many years on since 1965, as well as the points that have been so usefully and helpfully raised by the noble and learned Lords.

7.45 p.m.

Baroness Scotland of Asthal

1 add my voice to those who commend both the noble and learned Lords, Lord Lloyd and Lord Ackner, on their erudite presentation of the matter, but I hope that they will forgive me for saying that in the comments which they made with such passion they have been reciting a view that has been recited repeatedly since 1965. We therefore have a dividing line on which way the argument falls.

If I repeat some of the issues that we have raised in the past, I should make it clear that I do so because they do not lose their poignancy or their importance. In discussing the issue, it is important for all of us to bear in mind the victims who are subject to those offences and their families. It is true—and a number of noble Lords will have heard it themselves—that for those families who have lost a loved one, life really does mean life, because the people whom they love will never return.

Perhaps I may with some temerity trespass on those issues which are perceived to be mercy killings when a member of a family makes a decision, perhaps with the victim, to terminate the life of that loved one and to put him "out of his misery". Members of the Committee will know that even such killings do not necessarily meet with universal approval within the family of the victim. There can be great pain, great resentment and great anger. It would be to fail to recognise the delicacy of these situations if we did not put the issue against that back-cloth.

Members of the Committee will also know that when talking to the families of such victims there is a feeling bordering on rage as regards the failure to recognise that the life which has been taken away should be mirrored by a life sentence for the perpetrator, albeit that there is an understanding that the whole-life tariff may not necessarily be served in custody but in part on licence in the community. I was pleased to note in the elegant remarks of the noble and learned Lords, Lord Lloyd and Lord Ackner, a recognition that, historically at least, murder has occupied a special place in our criminal law. I understand what the noble Lord, Lord Thomas of Gresford, says: that many would have wished that not to be the case.

The special status of the offence arises not only from the tragedy of loss of life, but also from the murderer's intention that the victim should die, or at least should suffer serious harm. Those characteristics of the offence obtain whatever the circumstances in which it occurs. The sentence of mandatory life imprisonment reflects this unique nature of the offence and the fact that the public rightly regard it as a particularly abhorrent crime. It is a consolation to relatives in such cases that society marks its disapproval of the crime of intentionally depriving another of his life by imposing a life sentence.

Since 1965, Parliament has on numerous occasions discussed these issues and had an opportunity to decide whether to abolish the mandatory life sentence for murder. There has not been any occasion when the majority of both Houses has been in favour of doing so.

There is a clear distinction between the mandatory life sentence for murder by adults and discretionary life sentences. The former is characterised as a mandatory sentence automatically imposed by law as a punishment reflecting the unique gravity of the offence. The discretionary life sentences, on the other hand, are justified primarily by considerations of the offender's character, mental state or age, and his resulting dangerousness.

This distinction between the mandatory and discretionary sentences has been recognised and confirmed in a number of human rights cases. Most recently, appeals in the case ofLichniak & Pyrah found that the mandatory life sentence was compatible with the convention rights. The court also noted in its judgment that, section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965 represents the settled will of Parliament". and,

it may be accepted that the mandatory life penalty for murder has a denunciatory value, expressing society's view of a crime which has long been regarded with peculiar abhorrence". If I may respectfully say so, that Judicial Committee of your Lordships' House had a particularly strong court. Sitting in the House, determining this matter, were the noble and learned Lords, Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry. Members of the Committee will know that that was a strong court indeed. They spoke and what they said chimed very much with what the country seems to desire.

As your Lordships will be aware, offenders are not lightly prosecuted for murder. There are a number of partial defences to murder—such as diminished responsibility or provocation—which result in commuting the charge to one of manslaughter. This ensures that those who are convicted of murder will have committed a uniquely serious crime. This ensures, too, that those who are convicted of murder will have committed this crime in circumstances where the court feels it was justified to so mark it. The Law Commission is currently examining the operation of partial defences to murder—taking up the point made by the noble Lord, Lord Thomas of Gresford— provocation and diminished responsibility, including the proposed introduction of a partial defence of self-defence where an excessive amount of force was used. The intention is to complete the review early next year. I therefore understand what the noble and learned Lord, Lord Ackner, said about those issues.

I agree, too, that there is a great variety in the nature and facts which give rise to murder. The framework which we have set in place, which we will discuss later, enables a court to make that distinction when differentiating between those who may fall into the category such as the noble and learned Lord, Lord Lloyd, mentioned in terms of mercy killings, and those at the other end, who the noble and learned Lord, Lord Ackner, acknowledged may be subject to a whole-life tariff. That distinction is there to be seen.

The death penalty for murder was abolished on faith that the criminal justice system would continue to treat the offence with the utmost gravity. That was clear. We believe that loss of the mandatory life sentence for murder would undermine public confidence in the criminal justice system's ability to deal appropriately with these most serious crimes. This Government have sought to lead. But it is only right to say that in leading we have also sought to listen: to listen to what victims and witnesses say; to listen to what perpetrators say; and then to craft something which will meet the needs of justice.

I hope that Members of the Committee will understand why I feel unable to agree to this amendment. It is not because it would expunge Schedule 17. The truth is that members of the public just would not understand. They would not understand because the fact that the life sentence exists is at least an acknowledgement that a life was removed. It is not dishonest because, as noble Lords will know, even if people are released after a specific time, they remain on licence. We have the opportunity to differentiate between the different categories.

Lord Ackner

Does the noble Baroness accept that now that the Secretary of State's role has been removed the procedure in relation to murder will be exactly the same as the procedure in relation to the discretionary sentences? At the hearing and after the pronouncement of the verdict, or the plea, in the discretionary case the judge is expected to say what is the length of time that the person should be in prison in order that the penal side—that is, the punishment and deterrent side—of the sentence should be satisfied. The judge will say what that period is; 20 years, 15 years, whatever it may be. Of course, at the conclusion of that period, the Parole Board will consider the issue of risk in relation to whether the person can be safely released.

Exactly the same situation will apply in a murder case. In both manslaughter and murder cases, the judge can say, "I do not specify the penal side of this sentence because I do not think there is one that I should specify", thereby indicating that it is a whole-life sentence. The same will apply to a murder case, where it is appropriate.

Therefore, the public do not see any difference at all. The removal of the Secretary of State's final discretion has made the procedure virtually identical. In those circumstances, it is difficult to see that the reaction of the public can in any way be different. In each case, whether it is discretionary or whether it remains mandatory but without the interference of the Secretary of State, the judge will lay down the penal side of the sentence if he considers it appropriate to do so. If he does not consider it appropriate, in both those cases he will say the same. Therefore, does the noble Baroness agree that the concern about the public is a little difficult to follow?

8 p.m.

Baroness Scotland of Asthal

The noble and learned Lord will not be surprised if I say that I am unable to agree. The situation may be similar but it is not the same. The noble and learned Lord will know that in Schedule 17 and the clauses in this part of the Bill we are seeking to set a framework within which the courts will be able to exercise their discretion. Therefore, we are setting the bench-marks.

The maintenance of the mandatory life sentence will continue. Of course, the court will determine the length of the determinate part of any given sentence. But if one looks at the starting points that we have indicated—the 15 years, the 30 years and the basis upon which a whole-life tariff should be considered— there is the voice of Parliament. Parliament is setting down the parameters, although not through the exercise of the Home Secretary's discretion on a case-by-case basis. But, in terms of setting the structure within which these offences will be judged, Parliament's voice will be clear.

We are not proposing that Parliament should dictate to the judiciary how they exercise their discretion within the boundaries set, but the boundaries are none the less an important part of the response. If noble Lords consider the way that the courts—we shall come to this when we reach Schedule 17—will respond to sentences in relation to murder and life imprisonment and those in relation to other serious offences, they will see that there is a very clear distinction. 1 do not believe that anything I have said thus far militates against this proposal. The removal of the Secretary of State's individual discretion has been, and will be, replaced by a statutory framework which will give expression to Parliament's will.

Lord Thomas of Gresford

There is a weakness in the argument put forward by the noble Baroness. When a mandatory life sentence is passed following a murder conviction, the public know perfectly well that it does not mean life. They know perfectly well that there will be a release at some point in the future and that the whole thing is up in the air.

To suggest that murder is unique because there is a death is wrong because there is a death in manslaughter cases. The family is just as distressed by what happens in a manslaughter case with the loss of a relative, and so on. I recall that I prosecuted a case in which a woman received an absolute discharge for killing her husband and living with the body for 20 years. She suffered from severe provocation and that was the final decision of the court. On the other hand, in other manslaughter cases in which I have been involved, life sentences have been passed. I should have thought it impossible to envisage a situation where a judge would not pass a life sentence, meaning a life sentence, in a case where there had been a depraved killing involving not only an intention to kill but also a desire to kill. It is impossible to consider that a judge would not pass a life sentence in a case where there had been a desire to cause grievous bodily harm, resulting in a killing.

The point is that every case is different. It is for the judge, who hears the facts, sees the witnesses, sees the photographs and understands the whole case, to determine what is just for the individual defendant in the particular case, bearing in mind all the issues, including how the family feel and the fact that a life has been lost, and so on. Therefore, I do not believe that the unique quality of a murder case is anything like a sufficient justification for the mandatory life sentence.

Lord Lloyd of Berwick

I am grateful to those who have spoken in favour of the amendment. I listened with great care to what the Minister said by way of reply. I shall of course read it, but I hope that she will forgive me if I say that, for the moment, I do not find her reply completely satisfying. However, I bear in mind the point made by the noble Lord, Lord Clinton-Davis, which was supported by other noble Lords. This is a very important issue and perhaps tonight is not the time to vote on it. However, I shall certainly bring back the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begin again no later than 9.8 p.m.

Lord Ackner

Before the Committee adjourns, I made reference to a report that deals with a particular type of sentence. I have found the command paper. It is the report of the Committee on Mentally Abnormal Offenders, Command Paper 6244.

Baroness Farrington of Ribbleton

Perhaps it would be helpful at this stage if the noble and learned Lord, Lord Ackner, could write to my noble friend. She could then reply to him and place a copy in the Library.

Lord Ackner

That is much more convenient. All I am doing is indicating to the Committee the details of a report to which I referred. I shall not talk about its merits; I merely give the information. The nature of the sentence to which I made reference is to be found on pages 71, 72 and 73. As I suggested to noble Lords, they are cases of reviewable sentences. That is all I wish to add.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.