Sitting of 27 January 1997

Preamble
The House met at half-past Two o'clock
PRAYERS
[MADAM SPEAKER in the Chair]
Oral Answers to Questions
  DUCHY OF LANCASTER

    Deregulation
    Mr. Wilkinson: To ask the Deputy Prime Minister what plans he has to visit the European Commission in Brussels during the current Parliament to discuss deregulation in business. [11110]
    The Deputy Prime Minister (Mr. Michael Heseltine): My right hon. Friend the Chancellor of the Duchy of Lancaster has regular contacts with the Commission and our European partners to discuss deregulation. He is to be congratulated on the considerable progress that has been made. We will maintain pressure for regulatory reform in Europe over the coming months.
    Mr. Wilkinson: Will my right hon. Friend make one of his visitations, preferably prearranged, to the European Commission to make the European Union understand that the idea mooted by the Advocate General that the acquired rights directive should not apply to service contracts would be gravely prejudicial to British interests as regards competitive tendering in local government and
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    market testing in national government? That is an urgent matter which potentially affects the terms and conditions of employment of many thousands of people and many contractors in the United Kingdom.
    The Deputy Prime Minister: All my visits are prearranged and tend to attract a great deal of attention. I can assure my hon. Friend that I am sympathetic to the idea that he has in mind. The timetable for the next few weeks may not allow for a high-profile visit to Brussels, but the Commission would undoubtedly welcome a visit and be immensely sympathetic to the message that I would deliver.
    Mr. Caborn: Will the Deputy Prime Minister enlighten the House about the latest proposals from his Department's deregulation unit, which I think have been code-named sunset provisions? Can he confirm the reports that the latest idea from the unit, which was discussed in Cabinet this morning, according to the Financial Times, is to withdraw all regulations on companies after a period of five years, unless the Government take a clear decision to continue them? Will the Deputy Prime Minister inform the House whether that madcap idea has been discussed with the European Commission? According to the Financial Times this morning, the proposal was intended to appease small business. Will the Deputy Prime Minister harangue any that do not agree with him?
    The Deputy Prime Minister: We all congratulate the Financial Times on reporting this morning conversations that have yet to take place. The Government have rigorously scrutinised all legislation and regulations to see how we can lighten the load on small businesses. We will continue to do that, but it is inconceivable that there would be an automatic sunset provision in all regulations introduced in the House.

    Information Technology (Government Departments)
    Mr. Ian Bruce: To ask the Deputy Prime Minister if he will make a statement on the progress of his

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    Department's initiatives to use information technology within Government Departments and to disseminate information to the general public. [11111]
    The Paymaster General (Mr. Michael Bates): My right hon. Friend the Chancellor of the Duchy of Lancaster will be making a comprehensive statement after the conclusion of the period for comments on the Green Paper "Government Direct", which was published last November. There have already been a large number of responses to the Green Paper and more are expected before the closing date, which is 7 February.
    Mr. Bruce: I congratulate my hon. Friend on his answer and on his promotion to the Government Front Bench. The Government are helping to move out the information super-highways presaged by the Green Paper. Will we in South Dorset have one of the computerised terminals that would allow my constituents to find information about government and communicate directly with the Government?
    Mr. Bates: I thank my hon. Friend for his welcome to me to this position. The terminals have proved extremely popular throughout the country and many pilots have been available, but there is none yet in South Dorset. My hon. Friend's championing of interest in information technology and openness of government may lead us to consider that location shortly.
    Mr. Derek Foster: I welcome the hon. Gentleman to his elevated position. Despite his Geordie credentials, I hope that his tenure of office will be short.
    Is the hon. Gentleman aware that a so-called unbeatable anti-benefit fraud scheme which was pioneered in the north-east was abandoned after only a year because the criminals cracked the system? Does that not prove that the Government are ill-prepared for the information revolution and impotent in protecting taxpayers from fraud? How can a Prime Minister who cannot lead his own party rise to meet the challenges of the information society and how can a Government who cannot see beyond the end of the week lead the nation into the millennium?
    Mr. Bates: I thank the right hon. Gentleman for his barbed welcome. It gives me an opportunity to thank the Leader of the Opposition for removing the right hon. Gentleman from his position as Opposition Chief Whip, thereby ensuring that my last year in the Whips Office was easier than it might otherwise have been.
    We have taken many new initiatives to try to clamp down on benefit fraud—and it is notable that the Opposition have opposed every one.

    Royal Yacht
    Mr. Viggers: To ask the Deputy Prime Minister if he will make a statement on his role in the co-ordination and presentation of Government policy in respect of the replacement for the royal yacht. [11112]
    The Chancellor of the Duchy of Lancaster (Mr. Roger Freeman): My right hon. Friend chairs the Ministerial Committee on the Co-ordination and
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    Presentation of Government Policy and undertakes other activities as necessary to ensure the successful presentation of the Government's policies across its range of responsibilities.
    Mr. Viggers: Does my right hon. Friend agree that last week's statement about a replacement royal yacht has been widely welcomed? Does he agree also that, ideally, Britannia should become the centrepiece of the millennium project in Portsmouth harbour, spanning Gosport and Portsmouth? I am sure that that idea would prove very popular.
    As to plans for a new yacht, does my right hon. Friend share my distaste for the Opposition's tactics? They had every opportunity to express their grudging and negative attitude during the past two years when the project was under discussion.
    Mr. Freeman: I am grateful to my hon. Friend for reminding us that the royal naval ship to replace Britannia should be commissioned in 2002, which is the golden jubilee of Her Majesty the Queen. I hope that the new ship will play an important role in those celebrations.
    As to the Opposition's attitude, we have witnessed their small-mindedness and their misunderstanding not only of the role of Her Majesty but of the promotion of the best interests of the United Kingdom economy abroad.
    Mr. Cunliffe: How can the Minister reconcile in any shape or form public expenditure cuts—which have forced many authorities, such as that in my area, to sack home helps and teachers and make all kinds of cuts to public services—with the proposed expenditure on a new royal yacht? Is that not indefensible, as most people consider the vessel to be a kind of floating palace which is used mainly by the privileged? The idea is totally unacceptable to the majority of British people and certainly to many of my colleagues.
    Mr. Freeman: I think that the hon. Gentleman misunderstands the function of the royal yacht. It is in no sense an irrelevant "floating palace": its primary role is to make a very positive statement abroad about the importance of this country and to promote trade with the rest of the world. Her Majesty the Queen will use the royal yacht on certain occasions, but it is not for her exclusive use. I am very glad that Her Majesty is pleased with the decision.
    As regards the proportionality of the decision, it does not represent additional, unplanned public expenditure, as the money for the Ministry of Defence will come from the reserve.
    Sir Sydney Chapman: In welcoming the Government's recent announcement and disagreeing with the uncharacteristically unfair comments by the hon. Member for Leigh (Mr. Cunliffe), for whom I have great regard, I ask my right hon. Friend to confirm that a replacement for Britannia is justified on commercial and trade grounds alone. In answer to those who say that the money might come from the national lottery rather than the taxpayer, will he confirm that everyone who buys a ticket in the national lottery immediately pays 12p to the Treasury? Therefore, if we were to hypothecate, we could say that a fraction of the lottery money will pay for the new royal yacht.
    Mr. Freeman: It will take the next five years to design and build the new royal yacht. She will be commissioned

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    with, we hope, a life of 25 to 30 years at the very least. It will be money well spent by the Government on behalf of the taxpayer in promoting the best interests of the United Kingdom.
    Mr. Beith: Will the Minister confirm that it has been the Government's practice to consult the Opposition parties beforehand on every announcement affecting or concerning the royal family, so as not to embroil the royal family in any political controversy? Will he explain the thinking behind the refusal to accept any element of business support for the project? Surely we have passed through the days when it was fashionable to disparage those in trade. Are the Government not acting rather like one of the Minister's former hon. Friends towards one of his right hon. Friends, who referred to him as the sort of person who had to buy his own furniture?
    Mr. Freeman: On consultation with the Opposition parties, this is not a constitutional matter. It is a right and proper decision for the Government in commissioning a royal naval ship. I hope that the House will appreciate that business sponsorship of a royal naval ship, which occasionally will be used by Her Majesty the Queen, is not appropriate.
    Mr. Jessel: Will my right hon. Friend confirm my arithmetic that £60 million, when divided among the United Kingdom's population of 58 million, works out at about £1 per head, or about 20p per head per year over five years? Is it not unbelievably small-minded of Opposition Members to carp about such a small sum that can do such a great deal to generate employment and exports?
    Mr. Freeman: I am sure that my right hon. and hon. Friends will very much agree with my hon. Friend. The Opposition do not understand the importance of promoting the best interests of the United Kingdom throughout the world.

    Government Policy
    Mr. Barry Jones: To ask the Deputy Prime Minister when he last met the Prime Minister to discuss the co-ordination and presentation of Government policy. [11115]
    The Deputy Prime Minister: I meet my right hon. Friend the Prime Minister regularly to discuss many areas of my responsibility.
    Mr. Jones: Why did not the Government discuss matters concerning the royal yacht with Her Majesty's very loyal Opposition? Why did the Government contrive a situation that caused deep embarrassment to the sovereign? The presentation of policy under the right hon. Gentleman is an unmitigated disaster.
    The Deputy Prime Minister: I refer the hon. Gentleman to the reply by my right hon. Friend the Chancellor of the Duchy of Lancaster a few moments ago.
    Sir Donald Thompson: When my right hon. Friend is discussing with his right hon. and hon. Friends the co-ordination and presentation of the Government's
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    policies, will he not omit the way in which Government policy has enriched the north, the north-east, Wales and Scotland as well as the south?
    The Deputy Prime Minister: I am most grateful to my hon. Friend. I am sure that the House will recognise the further continuation of Government success as a result of Nissan's exciting recent announcement.
    Mr. Prescott: Will the Deputy Prime Minister explain to us the difference between seeing my right hon. Friend the Leader of the Opposition about extra millennium expenditure and having discussions about the Queen's yacht?
    The Deputy Prime Minister: Very simply, I saw the Leader of the Opposition as a millennium commissioner; I speak in the Chamber as a Minister.
    Sir Teddy Taylor: To ask the Deputy Prime Minister if he will review the co-ordination of Government Departments in respect of the provision of information on Government policy on the European Union. [11116]
    Mr. Freeman: We have no plans to carry out any such review.
    Sir Teddy Taylor: Does my right hon. Friend share my concern and alarm that, throughout the recent big row about value added tax on food, no reference has been made to the fact that, under article 28.2 of the sixth directive, which, incidentally, was approved by the Labour Government, a right to continue a zero rate ended on 31 December 1996 and has continued only by a legal ploy, which is likely to be challenged at the European Court? Would it not be fairer to the electors if the Government and the Opposition were to make it abundantly clear to the people of Britain, instead of putting up silly posters, that there is a real danger that we shall shortly have to pay VAT on food and on children's clothes irrespective of who wins the general election?
    Mr. Freeman: I very much regret that I cannot agree with my hon. Friend's analysis. I am sure that he is sincere, but there is no imminent danger of VAT being put on food.
    Mr. Shore: On the co-ordination of Government policy and information about the European Union, will the Minister tell us whether today's release through the British press of the excellent article written by the Prime Minister, in which he makes clear his great repugnance of the idea of a European central bank on democratic grounds, was cleared with the Chancellor of the Exchequer?
    Mr. Freeman: I have not seen the reports to which the right hon. Gentleman refers. The Prime Minister, on behalf of a unanimous Cabinet, made our policy quite plain. [Interruption.] The hon. Member for Doncaster, North (Mr. Hughes) may laugh, but I am repeating for the record the facts of our policy on the single European currency.
    Mr. John Marshall: Will my right hon. Friend remind our colleagues in the European Union that this country has had much greater success in creating jobs that they have? The reason for that is that we have a relatively deregulated economy, whereas they have overregulated economies.
    Mr. Freeman: Her Majesty's Government will continue to remind the British electorate of the advantages of our opt-out from the social chapter of the Maastricht treaty. We will also continue to remind the electorate that the Labour party would jeopardise that opt-out, increase unemployment and reduce our competitiveness.
    Mr. Jim Cunningham: To ask the Deputy Prime Minister how many meetings he has had with his Cabinet colleagues and civil servants since October to discuss the presentation of Government policy. [11117]
    Mr. Bates: That subject has arisen frequently in meetings during that period.
    Mr. Cunningham: Does the Deputy Prime Minister remain in charge of Government policy, given that he was not allowed to present the case for the royal yacht?
    Mr. Bates: Questions on that subject have already been answered. [HON. MEMBERS: "Oh."] They have already been answered. The hon. Gentleman asked a serious question, and I shall give him an answer based on my experience. I visited India two years ago, not long after the royal yacht Britannia had been there. During its visit, £1.3 billion-worth of orders for British companies were secured, which meant thousands of jobs. The new royal yacht will mean 500 jobs for the shipyards—a subject that Labour Members used to care about, but that now only Conservative Members care about.
    Mr. Jacques Arnold: When my right hon. Friend the Deputy Prime Minister discusses the presentation of Government policy, will he stress yet further the great success of the private finance initiative, particularly in north-west Kent, where, thanks to the PFI, we will get me brand new Darenth Park hospital? Will he contrast the Government's policy with that of the Labour party, which would have us waiting in the queue for Government handouts of NHS capital, as we have waited for the past 25 years?
    Mr. Bates: I agree absolutely with my hon. Friend's observations on the private finance initiative. I know of his interest in this matter. His constituents will benefit from our policies, which create extra beds and extra facilities in much-needed health care.
    Mr. Donald Anderson: Were not the attempts to portray Government policy as full of probity, honesty and honour called into question by the cheating of the Government Whips just before Christmas? Why has there still been no apology for that cheating? Why have no heads rolled?
    Mr. Bates: Perhaps because it was not cheating. It could be more easily explained as sheer incompetence by the Opposition Chief Whip.
    Mr. Dykes: To ask the Deputy Prime Minister if he will make a statement on his Department's role in co-ordinating Her Majesty's Government's economic and social policies. [11119]
    Mr. Bates: My right hon. Friends and I work closely with colleagues to carry out the policies that are best for Britain. Our key policy themes include the delivery of economic prosperity, the upholding of decent common-sense values in the pursuit of law and order and justice, and the provision of first-class public services.
    Mr. Dykes: Does my hon. Friend expect the forthcoming economic statistics to confirm the strong underlying growth trend in the United Kingdom economy?
    Mr. Bates: We do indeed. I agree with my hon. Friend about that trend. This morning, we learned of yet more figures demonstrating strong growth: there has been a growth of 2.3 per cent. in gross domestic product. That further endorses the Government's performance in delivering good, solid growth that is non-inflationary, something that has eluded past Governments for about 50 years.
    Mr. Wigley: Is the Minister aware that last Wednesday—the very day on which the announcement about the royal yacht was made—the Secretary of State for Wales announced, in reply to a question from me, that the Government could not go ahead with their commitment to a community hospital in Porthmadog which they had promised for the past seven years, because it had to await the private finance initiative? If the Government are providing public money for the royal yacht when private money is available, and not proceeding with hospital projects when no private money is available, what are their social priorities?
    Mr. Bates: During this Question Time, we have heard of instances in which the private finance initiative is working for health care; I know, from experience in my part of the country, that that is happening. The subject will be dealt with by my right hon. Friend the Secretary of State for Wales—but I seem to remember that, on that same day, my right hon. Friend announced the creation of 700 new jobs as a result of inward investment in Wales.
    Mr. Congdon: I welcome the success of the Government's economic policies since 1992. Since that time, they have led to the best growth record in comparison with the other major European countries, and to a record fall in unemployment. Does my hon. Friend agree that all that would be put at risk by the imposition of a minimum wage and the implementation of the social chapter, as advocated by the Labour party?
    Mr. Bates: Absolutely. I thank my hon. Friend for drawing that to my attention. Let me again stress the threat to jobs that would be posed by the possibility of an alternative Government. The reality is that the unemployment rate in this country is coming down, and my hon. Friend may be interested to learn—even if the Opposition are not—that the London chamber of commerce has today put paid to the myth promulgated by the Opposition that the jobs involved are all part time. It says that the growth in part-time jobs was greater in the 1950s and 1960s, and that these are new full-time jobs that are extremely welcome.
    Mr. Winnick: Are we to take it that the person who heads co-ordination—the Deputy Prime Minister—denies any responsibility for the announcement about the royal ship? Is it not clear that that announcement was meant as an election ploy, but has backfired on the Government? Is it not a matter of deep regret that the Queen has been embarrassed in such a way by this Government?
    Mr. Bates: Listen: we are not going to take that from the Opposition. [Interruption.] May I just make a few points clear? The hon. Gentleman, who is a very experienced Member of Parliament, may remember that, in the middle of the general election campaign of 1951, a Labour Government announced the placement of an order for the royal yacht.
    Mr. Rowe: While taking an interest in the presentation of Government policy, will my hon. Friend remind the chattering classes who currently appear to be taken in by new Labour that, in 1979, they and their predecessors were convinced both that the country was becoming ungovernable and that the north-south divide was entirely unbridgeable? Both those factors have been turned on their heads by the success of the present Government.
    Mr. Bates: I certainly endorse what my hon. Friend has said. It was generous of him to draw attention to the eradication of the old phrase "the north-south divide". The north is now sharing in the benefits of our present economic prosperity, along with the rest of the country. Last week, jobs were announced in England, in the shape of Nissan; in Wales, in the shape of a meat processing factory; and in Northern Ireland, in the shape of Shorts. This week, jobs have also been announced in Scotland. There is not a part of the United Kingdom that is not benefiting from this economic prosperity, and therefore there is not a part of it that would not be at risk from a Labour Government.
    Mr. Hutton: To ask the Deputy Prime Minister if he will make a statement on the role of civil servants in the co-ordination and presentation of Government policy. [11122]
    The Deputy Prime Minister: Civil servants continue to play a role in co-ordinating and presenting Government policy consistent with the spirit and the letter of the civil service code and the civil service management code.
    Mr. Hutton: Will the Deputy Prime Minister confirm that he agrees with the principle that civil servants should not be asked to take part in activities that could give rise to criticism that people who are paid from the public purse are being used for purely party political reasons? Will he therefore explain why, on at least two occasions in the past six months, that appears to have taken place, first, in the laughable attempt to cost Labour's manifesto commitments and, secondly, in the establishment of a so-called good news network in the business community to argue for Tory policies? Do not both those activities expose the fact that the Government have broken the spirit, at least, of those guidelines?
    The Deputy Prime Minister: The hon. Gentleman will be fully aware that the costing of Opposition policies is carried out under guidelines established by the head of the
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    civil service, so I in no way accept his first suggestion. The second suggestion is that civil servants were in some way improperly used in examining areas where supporters of Government policy might exist. That is the subject of an investigation by the Select Committee that is appropriately responsible for the matter, which took evidence from the head of the civil service, who made it clear that nothing improper had taken place. However, before the hon. Gentleman feels that I am wholly in accord with the spirit of what he suggests, he will be aware of the statement by the hon. Member for Oldham, West (Mr. Meacher):
    "leaked documents are particularly welcome. I promise to make good use of them."
    I have never read a more disgraceful statement by a Labour party spokesman positively encouraging civil servants to break their high standards.
    Mr. Marlow: I believe that it is right that civil servants in the United Kingdom are not supposed to involve themselves in the organisation and presentation of Government policy. Why therefore is it right that Brussels's very own Dr. Goebbels, Geoffrey Martin, of the European Union office on the other side of the square, wishes to involve himself in the great democratic process known as the British general election? Will my right hon. Friend do something to stop that involvement happening? It is scandalous.
    The Deputy Prime Minister: I will send a little note to the gentleman concerned drawing his attention to my hon. Friend's views.
    Mr. Llew Smith: Will the Deputy Prime Minister inform the House whether civil servants or the Government co-ordinated the Prime Minister's statement over the weekend that, if we become part of a single currency, we will hand over economic decisions to an unelected and unaccountable European central bank?
    The Deputy Prime Minister: The hon. Gentleman has obviously not been fully in touch with what has been going on recently on these matters because, if he had been, he would realise that the party that is threatening to hand over more power to the European movement and to extend qualified majority voting is his own party.
    Mr. Harry Greenway: Would it be right to assume that civil servants did discuss the policy on the royal yacht with Ministers and to congratulate them as well as Ministers on the policy? Surely it has become clear from exchanges this afternoon and well before that, like its predecessor, the new royal yacht will earn billions of pounds, which will enable the Government to build many more schools, hospitals and the like than could be built for £60 million.
    The Deputy Prime Minister: I am grateful to my hon. Friend. Let me make it absolutely clear that the decision about the royal yacht was taken in the normal practices of Government after discussion with officials from the Departments concerned and that the decision was collectively agreed by Ministers. But the whole House will have witnessed the most extraordinary thing: when the announcement was made, one conspicuous voice on the Opposition Benches, the right hon. Member for

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    Bethnal Green and Stepney (Mr. Shore), had the guts and integrity to speak for Britain. If I have to choose between new Labour and old Labour, give me old Labour every time. [Interruption.]
    Madam Speaker: Order. I think that Mr. Faulds is making it clear that he also caught my eye on that occasion and was very supportive. [Interruption.]

    Value Added Tax
    Mr. Gerrard: To ask the Deputy Prime Minister when he last met the Chancellor of the Exchequer to discuss the co-ordination and presentation of Government policies relating to VAT. [11125]
    The Deputy Prime Minister: Labour Members have not recovered from my last reply. I shall try another one.
    I keep in regular touch with my right hon. and learned Friend to consider how the Government can further the success of their economic and fiscal policies.
    Mr. Gerrard: Will the Deputy Prime Minister confirm from his discussions with the Chancellor that the Chancellor has several times clearly stated his view that the VAT tax base is too narrow and specifically mentioned food, children's clothing and newspapers as candidates for the extension of VAT? Precisely which of those is being considered for VAT?
    The Deputy Prime Minister: The Chancellor has made his position absolutely clear, despite Labour attacks suggesting that he proposes to extend VAT to food. Both my right hon. Friend the Prime Minister and my right hon. and learned Friend the Chancellor of the Exchequer have said that that is simply not the case. Nothing is more indicative of the scurrilous nature of Labour's coming election campaign than the preposterous posters with which it is adorning the countryside. It is extraordinary that Labour should ask us to answer questions about taxation. Why cannot it answer questions about any of its own taxation proposals?

  OVERSEAS DEVELOPMENT

    Cyprus
    Mr. Nigel Evans: To ask the Secretary of State for Foreign and Commonwealth Affairs how much assistance was given to Cyprus in 1996. [11138]
    The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Dr. Liam Fox): Bilateral assistance to Cyprus totalled £473,000 in 1995–96. Assistance from the European Union was £450,000 in 1994, of which the UK share was some 16 per cent. Those are the latest years for which figures are available.
    Mr. Evans: Does my hon. Friend think it is regrettable that tensions on the island seem to be increasing? Not only were mere tragic deaths last year on the green line, but it has been announced that Cyprus intends to buy the S300 military system from Russia. At the same time, the authorities in the north have said that they will retaliate
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    with more army personnel in the north. Does he agree that negotiation is the only way to resolve the problems and hostilities on the island, particularly in view of Cyprus's European Union application? Does he further agree that the real losers will be both sides if we allow military tensions to increase any further on this beautiful island?
    Dr. Fox: The missile deal is extremely unwelcome. It dangerously raises the stakes in an already tense area. Equally, the Turkish threats are unacceptable. All parties must look for ways to reduce tension, not add to it, and I am sure that that view is shared by all hon. Members.
    Mr. Faulds: Would the hon. Gentleman agree that perhaps the more relevant question would be how much assistance has been given to the Turkish Republic of Northern Cyprus, which the Greek regime has prevented from happening? But would he also agree that the provocations on the green line, the UN separating border, have been by the Greek Cypriots because no other forces apart from the UN are supposed to enter that area?
    Dr. Fox: The Government do not recognise the Turkish Republic of Northern Cyprus—only Turkey does. There can be no change in our policy of maintaining balanced contacts with both communities. My right hon. and learned Friend the Foreign Secretary deserves praise for his recent initiative in trying to take forward peace in Cyprus. Only by a negotiated settlement and equal movement on both sides can peace be achieved.
    Mr. John Marshall: Does my hon. Friend agree that the greatest assistance that can be given to Cyprus is for the island to be reunited so that the refugees can return to their homes?
    Dr. Fox: We are looking at the 10 points that my right hon. and learned Friend the Foreign Secretary made in taking the peace process forward. If we are to achieve a settlement, both Governments must reduce the tension. The No.1 move needed at the moment is for both sides to get away from the dangerous rhetoric of recent weeks and to start to reduce, not increase, the tension. We should like to see fewer arms on both sides in Cyprus than there are at present.

    Rwanda
    Mr. Spearing: To ask the Secretary of State for Foreign and Commonwealth Affairs what further assessment he has made of the effects of conditions attached to aid from (a) the World bank and (b) other sources on the causes of the civil war in Rwanda. [11139]
    Dr. Liam Fox: The causes of the crisis in Rwanda are complex and go back many generations. However, the report, "Joint Evaluation of Emergency Assistance to Rwanda", did not conclude that previous development assistance was a primary cause of the crisis in Rwanda.
    Mr. Spearing: Does the Minister agree that the five-volume report, which the Minister of State has placed in the Library, makes it clear that there were many factors in the crisis? Is it not true that an over-emphasis on competition, particularly among people of similar ethnic background and in certain regions of a country,

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    increases the risk of armed conflict? Has not history shown that that is true? Would not it be good if in future the World bank, the International Monetary Fund and national Governments paid attention to that fact when drawing up loan conditions?
    Dr. Fox: It is certainly true that the report's historical analysis attaches some blame to ethnic policies during the colonial period, although the United Kingdom was not primarily involved in that area. Our aid to Rwanda is of a humanitarian nature, and we should remember that people in Rwanda—regardless of which ethnic group they belong to—may be starving. Our primary objective in Rwanda is to deal with its humanitarian needs.
    Mr. Foulkes: Does the Minister recall that, last week, the Foreign Secretary admitted that the United Nations' arms embargo is not enforceable in our dependencies, which is why Mil-Tec of the Isle of Man was able to supply more than £3 million of arms to the perpetrators of genocide in Rwanda? Will the Minister assure us that no other such violations are occurring, and attempt to close the loophole so that seedy companies in those island boltholes cannot undermine all our humanitarian efforts?
    Dr. Fox: I might have expected that the hon. Gentleman, rather than concentrating on the £175 million bilateral humanitarian aid that the United Kingdom has given since 1994, would try to find the single negative aspect in Britain's involvement in the Rwanda crisis. Customs and Excise is currently considering whether there is a case for more prosecutions, and I am therefore unable to answer his specific question. Should further details emerge, I will write to him. Instead of the pathetic sniping we have just heard, it would be nice if, for once, the Opposition were to praise the United Kingdom for the help it has provided in the Great Lakes crisis, and to praise our non-governmental organisations and those who put their lives at risk.
    Mr. Jacques Arnold: Is it not the case that the countries of Africa and elsewhere that have complied with programmes suggested by the World bank made very great progress, whereas countries such as Rwanda, which are involved in political expression and racial politics, have not lived up to the standards of the new Africa and new developing countries?
    Dr. Fox: I should have thought that it was self-evident that the political situation in Rwanda is holding back any economic development. There has been much economic movement in neighbouring countries such as Tanzania or Uganda, in which there has been some political co-operation—which, sadly, we have not seen in some of the other countries of the Great Lakes region. I hope that the Governments in the region will co-operate to provide a stable political environment in which economic development can occur in Rwanda. Clearly there must be a regional solution; we cannot impose one from outside, through financial institutions or by other means.

    Tanzania
    Mr. Win Griffiths: To ask the Secretary of State for Foreign and Commonwealth Affairs what additional
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    assistance has been provided in the last year to help Tanzania cope with the influx of refugees from Rwanda and Burundi. [11141]
    Dr. Liam Fox: Britain has committed £3 million bilaterally since January 1996 to help Tanzania to cope. We are ready to do more.
    Mr. Griffiths: I thank the Minister for that response, and I am very pleased that the Government's emergency aid to Tanzania has been increasing. However, will he stop for a moment, ponder the wider picture and try to imagine what would happen if, for example, half a million people suddenly moved into the south-west of England, Wales or the highlands of Scotland and started to live off the land, on which they were dependent for all their requirements? A radical transformation in economic and financial policy is occurring in Tanzania. In such circumstances, why have the Government halved their general aid programme to that country in the past five years? Will they now admit that they should be doing more to help the Hutu refugees return to their own country?
    Dr. Fox: I returned last week from a trip to Tanzania. I discussed the refugee problem with the Tanzanian Government, whom the House should congratulate on the efficient and sensitive way in which they have dealt with the Rwandan refugees, given the size and the nature of the problem. We have already provided substantial aid and we are willing to do more. The problem that the Tanzanian Government identified was not a matter of need as such, but of access to many refugee groups. The Government are constantly looking at that problem. We have an open dialogue with Tanzania and if the Tanzanian Government ask for specific help, we shall certainly consider it.

    Great Lakes
    Mr. Timms: To ask the Secretary of State for Foreign and Commonwealth Affairs how much of his Department's bilateral and multilateral budget was allocated to the Great Lakes area of Africa in the last year for which figures are available; and if he will make a statement. [11142]
    Dr. Liam Fox: More than £14 million of gross public expenditure was provided to the Great Lakes region in the financial year 1995–96. Comparable information on multilateral expenditure is not readily available.
    Mr. Timms: I thank the Minister for that answer. In view of his earlier answer, will he reassure the House and the country by expressing outrage at last week's revelation that British arms were supplied to Hutu extremists in Rwanda? Does he agree that it is extremely important that the perpetrators of genocide in Rwanda are rapidly brought to justice if we are to ensure that the welcome British and other aid that has been supplied since 1994 is not wasted?
    Dr. Fox: Indeed, human rights problems cause us great concern not only in Rwanda but in Burundi. The perpetrators of genocide must be brought to trial. We are looking at events in Rwanda to make sure that the trials

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    are fair and that a proper system of justice is applied because, as the hon. Gentleman rightly said, without basic political stability we will be unable to use the large resources that are currently available in the Great Lakes region to help the refugees. The greatest problem identified by non-governmental organisations is moving the stocks that are already in place to the refugees; political stability is required first.
    Mr. Rowe: In such a tangled area there have, of course, been distressing stories of some aid being misappropriated. Will my hon. Friend assure us that, particularly in parts of Africa where the NGOs are far less strong but aid is given, every possible means is used to avoid it being misappropriated or falling into the wrong hands?
    Dr. Fox: Of course we shall try to do that as far as we can, but it would be quite wrong and improper for me to suggest to the House that we have that degree of control over where the aid goes once it has been disbursed. We hope that the organisations to which we provide aid will make the best use of it. We should commend the courage of the NGOs, especially those who have been willing to put their lives in danger to use the aid that we supply for the greater good. We are grateful that people are still willing to take that risk for humanitarian reasons.
    Miss Emma Nicholson: Will the Minister inform the House how much of his Department's bilateral aid programme has been dedicated to education? Education in Rwanda touches only the 8 per cent. of the population who are literate, despite the fact, of which the Minister does not appear to be aware, that for the past two and a half years the Rwandan Cabinet has been a coalition, elected from all parts of society, and a very good Government. None the less, our Government are still not supporting UNESCO through multilateral aid, despite the wonderful work of the organisation there. Will the Minister discuss the matter with UNESCO's deputy director-general, Professor Maurizio Iaccarino, who will be in London this week?
    Dr. Fox: While I am always willing to take part in discussions that I believe will be fruitful, our position has been made quite clear in UNESCO and I need say nothing further on that. Much aid is focused on the internal structure in Rwanda. Since 1994, £127 million of European Union money—of which £18.5 million was United Kingdom money—has been given for human rights, health, education, environment and other projects in Rwanda. The Government have a good record on supporting education projects in Rwanda. It is certainly nothing to feel sorry about. We are proud of our record since 1992.

    Aid Budget
    Mr. Pike: To ask the Secretary of State for Foreign and Commonwealth Affairs what representations he has received since the Budget regarding the level of aid projected for 1997–98. [11143]
    Dr. Liam Fox: We have received a number of representations from hon. Members and others.
    Mr. Pike: Are not organisations involved in overseas aid concerned that the figure for 1997–98 represents a real-terms cut of 8.4 per cent.? It is also a cut in cash terms. Do not the Government stand condemned on their record of cutting money for overseas aid?
    Dr. Fox: I really did not think that any Opposition Member would have the nerve to say that today. The Labour policy document of October 1996 says:
    "Labour will start to reverse the decline in UK aid spending."
    I wonder how that squares with what the shadow Chancellor said last week. Either Labour's tax and spend promises are not worth the paper on which they are written or Labour Members, if they now agree with our tax and spend priorities, have been telling porkies for the past 17 years. Either the shadow Chancellor's document is dishonest, or Labour now admits that it has been consistently wrong for the past 17 years. If it is going to increase aid, what will it cut—or is its promise just another casualty in its seemingly insane search for power?

  PUBLIC ACCOUNTS COMMISSION

    National Audit Office (Staff)
    Mr. Steen: To ask the Chairman of the Public Accounts Commission how many staff without professional qualification are employed by the National Audit Office. [11148]
    Sir Terence Higgins (Chairman of the Public Accounts Commission): The National Audit Office employs 328 staff who do not currently have a professional qualification. Included in that number are 91 staff who are training for a professional qualification and 100 others who have been trained to a high standard in the professional disciplines required by the office. The remaining 137 include the full range of support staff required by a professional organisation.
    Mr. Steen: Is it not clear that the National Audit Office is doing well and reducing the number of staff because it is working with a Government who are committed to reducing bureaucracy, cutting red tape and getting rid of unnecessary laws? Is it not true that if the Labour party ever got into power, the number of staff, skilled and unskilled, in the National Audit Office would rise dramatically, simply because of the number of rules and regulations that a Labour Government would introduce? Labour does not trust the people and would introduce ever more laws, so more people would be needed in the National Audit Office to check on what was going on.
    Sir Terence Higgins: In 1997–98, a greater volume of work will be done at a lower real-terms cost. As for the second part of my hon. Friend's question, he may well think that, but it would be wrong for me to answer a hypothetical question.
    Mr. Maclennan: Does the Public Accounts Commission accept that the qualifications of those in the National Audit Office are adequate—indeed, highly

    17
    suitable—to take on the task of considering the work of the non-departmental public bodies that spend public money? The work of those bodies is not subject to review and has for too long been excluded from proper oversight. Will the right hon. Gentleman invite his colleagues on the commission to consider the resource implications, if any, of expanding its remit in that way?
    Sir Terence Higgins: The main work of the office covers 570 accounts, involving expenditure and income of more than £500 billion. It is also the auditor of half of the 300 or so non-executive agencies to which the hon. Gentleman referred. I shall consider carefully what he has said and bring it to the attention of the commission.
    Mr. Janner: Has the commission complied with the recommendations of the Equal Opportunities Commission and the Commission for Racial Equality to carry out proper sex and ethnic monitoring? If so, what are the results?
    Sir Terence Higgins: I cannot give the hon. and learned Gentleman an immediate reply, but I shall happily look into the matter and write to him. Alternatively, he may wish to table a specific question. I am not aware of any form of discrimination in the employment of the staff to whom I referred in answer to my hon. Friend the Member for South Hams (Mr. Steen).

  OVERSEAS DEVELOPMENT

    Angola
    Mr. Harry Greenway: To ask the Secretary of State for Foreign and Commonwealth Affairs what support his Department is giving to (a) school and (b) higher education schemes for Angola; and if he will make a statement [11144]
    Dr. Liam Fox: We are supporting efforts to improve the teaching of English in secondary schools and at the Institute of Languages.
    Mr. Greenway: Is my hon. Friend aware of the devastated condition of many schools in Angola following the civil war? Is he aware that quite a lot of aid is given to Angola? Should not that aid be directed into education, which would best enable the country to help itself and its citizens?
    Dr. Fox: I am grateful to my hon. Friend for that question. I am also grateful for the fact that schoolchildren in his constituency, following his visit to Angola, raised £500 and donated it to the Chiva primary school near Huambo for classroom furniture and educational materials. We currently have two English language teaching projects, costing £900,000. It is important for us as a nation to recognise that whatever the colonial legacy in terms of language, English is the international business language and the language of the future. It is important for developing nations to learn English if they are to trade successfully in the future.

  CHURCH COMMISSIONERS

    Disestablishment
    Mr. Michael Brown: To ask the right hon. Member for Selby, representing the Church Commissioners, if he will estimate the costs of disestablishing the Church of England. [11149]
    Mr. Michael Alison (Second Church Estates Commissioner, representing the Church Commissioners): Disestablishment would not lie with the Church Commissioners to initiate and, without formal instructions and definitions, cost estimates are impracticable.
    Mr. Brown: I thank my right hon. Friend for that reply. However, does he agree that whatever the costs, they would be well worth paying to enable the Church of England to renew itself? For example, the diocese of Lincoln, which covers my constituency, has become a laughing stock because the bishop, for whom I have the greatest regard, is unable to preach his Christmas sermon in his own cathedral. Does my right hon. Friend agree that as many vicars—two thirds, so it is said—are unable to remember even two or three of the Ten Commandments, there is a case for allowing the Church of England to go its own way, to renew itself and to take part in political debate without politicians criticising it when it does so?
    Mr. Alison: I share my hon. Friend's dismay at the damage that the Lincoln cathedral dispute has done. I am grateful for the concern that he has expressed, the interest that he has taken and the support that he has given to the Bishop of Lincoln. Disestablishing the Church of England, however, could prove detrimental to Church and to state. It would be paradoxical thus to extend even further the detriment that has already arisen from the Lincoln dispute.
    Mr. Frank Field: Will the right hon. Gentleman confirm that no disestablishment Bill has gone through the House without disendowment? The effect of disestablishment would be that, the day after, the same old crew would be running the same old show with a lot less money.
    Mr. Alison: I am happy to confirm the point that the hon. Gentleman has shrewdly and pertinently made. Queen Anne's bounty, which has a remote but important historic pedigree and origin, is at stake in the matter of disestablishment and, if disendowment occurred, there would not be sufficient resources to pay clergy stipends at their present level.
    Mr. Simon Hughes: I join in the support for the Bishop of Lincoln who has had a hard time and who deserves fully to be supported. It would, however, be helpful if the Church Commissioners assessed the benefits of disestablishment. It has been no disbenefit in Ireland and no disbenefit in Wales. The better and more democratic position in Scotland has been no disbenefit either. The benefits would be to the Church which, it seems to me from all the Gospel teachings, should not be part of the establishment but challenging it.
    Mr. Alison: The hon. Gentleman should reflect on the point made by the hon. Member for Birkenhead (Mr. Field)—that disestablishment would inescapably be associated with the controversial issue of disendowment. Although that might be a great benefit to the non-conformist Churches, which might claim some of the assets of the Church of England, and to the Roman Catholic Church, it would bring considerable financial detriment to the clergy in the Church of England.
    Sir Patrick Cormack: Will not my right hon. Friend give a more robust defence of establishment? Does he agree that one inestimable benefit of establishment is that every man, woman and child in the country has, as of right, the services of the established Church unless he or she is a member of some other religion or sect?
    Mr. Alison: I am happy to support my hon. Friend and I hope that my references to the hon. Member for Birkenhead showed that I am intrinsically robust in my approach. In the light of the importance and significance of Church Commissioners' questions every month, I hesitated so as not to exalt too highly the benefits that might accrue to Parliament from having questions answered regularly by a Conservative Back Bencher.

    Church Funds
    Mr. Flynn: To ask the right hon. Member for Selby, representing the Church Commissioners, what new proposals he has to improve the transparency of Church funds." [11150]
    Mr. Alison: The statement of recommended practice "Accounting by Charities", issued by the Charity
    20
    Commission, and part VI of the Charities Act 1993 and the Charities (Accounts and Reports) Regulations 1995, provide the framework for charity accounting with which dioceses and parishes of the Church of England must comply. The Church Commissioners are exempt from the regulations but complied in full with the statement of recommended practice in their 1995 accounts.
    Mr. Flynn: When will the Church publish the report that might partly explain the calamity whereby the Church Commissioners lost a third of their total assets in the great property boom and how they lost £80 million in an absurd venture in Kent? It seems that we are not to know the details. When will the right hon. Gentleman answer the campaigns by CELFRA—Church of England's lost funds recovery action—and Mr. Ancrum Evans who claim that the Church Commissioners should sue Coopers and Lybrand and Chestertons and anyone else who advised them during the loss of that £80 million? The Commissioners are still refusing to publish the full report. When will we be told the truth?
    Mr. Alison: The hon. Gentleman will know that all the details of the losses, which occurred some years ago, were published in the properly scrutinised and audited annual reports. I am sure that the hon. Gentleman, who although he comes from Wales is not inimical to the Church of England, will be glad to know that the largely paper losses that arose from the drop in valuation of the Church of England's assets have now been almost fully recovered. On the question of the property in Ashford in Kent, if the hon. Gentleman would like to table a question, I will happily give him at least a written answer. Consideration and investigation of the background to that debacle—I agree that it was no less than that—are continuing and results will be published in due course.

Points of Order
3.32 pm
Mr. Kevin McNamara: On a point of order, Madam Speaker. You will be aware that, last week, Mr. Justice Kay discontinued the trial of people accused of escaping from Whitemoor prison. One of the reasons that he gave for doing so was the deteriorating health of the accused as a result of the conditions in which they were kept in the prison. Has the Home Secretary given any indication that later today he will seek your leave to interrupt business, to make a statement about the debacle of that trial?
Madam Speaker: I have not heard from any Minister, and certainly not from the Home Secretary, that he is seeking to make a statement later today, although, of course, the House will be sitting and any Minister is able to make a statement later in the day, as the hon. Gentleman is aware.
Mr. Paul Flynn: On a point of order, Madam Speaker. It may surprise you to know that in the past, two members of the royal family have communicated their approval to me of campaigns that I have run, but—following "Erskine May"—I have never mentioned that fact in the House. I should like us to consider what is stated on page 376 of "Erskine May":
"The irregular use of the Queen's name to influence a decision of the House is unconstitutional in principle and inconsistent with the independence of Parliament."
Today, we heard the use of the Queen's name as approving a controversial decision, and there were similar examples last week. We all regret the fact that the Queen's name has been dragged into a controversial political matter. May we have a ruling on whether the rules of the House have been broken?
Madam Speaker: The hon. Gentleman is quite correct; I would refer any Member who is interested to page 376 of "Erskine May", where it reminds us that it is disorderly to
"use the Queen's name to influence a decision"—
22
or the judgment of this House. In this instance, I heard the remark that was made, but did not hear anything irregular in any of the exchanges this afternoon—just as I did not during the statement last week, although many remarks got close to being objectionable. I should, however, take this opportunity—I am grateful to the hon. Gentleman for raising the matter—to remind all Members, whether they are Ministers of the Crown, Front Benchers or Back Benchers, that the Queen's name should not be used in this House during such exchanges.
Mr. Alan Williams: Further to that point of order, Madam Speaker—
Madam Speaker: Order. The right hon. Gentleman is probably aware that, once I have given a ruling, I do not accept further points of order on the subject. I have nothing further to add to what I have already said. If he can make a different point, I will of course hear it.
Mr. Williams: It is an extension of the point.
Madam Speaker: Now who is rewriting the constitution?
Mr. Williams: I am sure, Madam Speaker, that you will see my point to be an extension. I accept entirely your ruling that one must not use Her Majesty's name in such matters. Is not it also part of the rule that one should not embroil the Crown in party political disputes in the House—which is a wider point? Was not what happened on Wednesday a calculated and deliberate attempt to do just that on the eve of an election? Is not the matter even more serious, given that the statement last week could not have been made without the Prime Minister's consent? If what I have put forward is a rule of the House, should not the Prime Minister therefore come to the House to explain his conspiracy in breaching that rule?
Madam Speaker: It seems to me that the right hon. Gentleman is trying to involve the Speaker of the House in party political exchanges. I am not prepared to be so involved. I have given my ruling and I stand by it.

Orders of the Day

  Sex Offenders Bill
  Order for Second Reading read.
  3.36 pm
  The Minister of State, Home Office (Mr. David Maclean): I beg to move, That the Bill be now read a Second time.
  The Bill is an important further plank in the Government's strategy for protecting the public against sex offenders, particularly those who prey on children. It contains two distinct parts, both with the common purpose of protecting children from sexual abuse. Part I imposes a requirement on those convicted of sex offences against children and other serious sex offences to register their name and address, and any subsequent changes, with the police. Part II makes it an offence for United Kingdom residents to commit certain sex acts against children abroad. The Bill's measures represent an important step in our comprehensive strategy to combat sex offenders. I should say something about the overall strategy, of which the Bill is a part.
  In the Crime (Sentences) Bill, as the House will recall, we are providing for automatic life sentences for those convicted, for a second time, of a serious sex offence: rape, attempted rape or unlawful sexual intercourse with a girl under 13 years old. Passing a life sentence on those who have demonstrated the propensity for repeated serious sexual offences will ensure that such people are not released unless or until it is judged safe to do so. In addition, the Crime (Sentences) Bill provides that all sex offenders will receive extended supervision after release for a minimum of 12 months or 50 per cent. of sentence, extendable up to 10 years at the court's discretion.
  As well as the Crime (Sentences) Bill and the Bill before the House today, the Government are legislating, through the Protection from Harassment Bill, against stalking—a phenomenon that may often have a sexual element, sometimes directed against child victims. We are also supporting two important private Members' Bills. The Sexual Offences (Protected Material) Bill will regulate access to victim statements in sex offence cases, and prevent the despicable practice of such material being used for pornographic purposes, and the Criminal Evidence (Amendment) Bill will extend police powers to obtain DNA—deoxyribonucleic acid—tests for all convicted sex offenders still serving a sentence.
  Finally, we are today publishing proposals for a prohibition on sex offenders seeking employment with children. Copies of the proposals have been placed in the Library. That was one of the elements discussed in last summer's consultation paper and it received widespread support, but it was clear from the comments received that further work was necessary to develop an effective scheme. The results of that further work are contained in the paper published jointly today by the Home Office and the Scottish Office and we look forward to receiving further comments from the public on how the arrangements should work.
  To return to the Bill, the suggestion that sex offenders should be required to register was first put forward by the Police Superintendents Association of England and
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  Wales, and I am grateful to that organisation for its assistance in developing our proposals. We decided to issue a consultative document, "Sentencing and Supervision of Sex Offenders", in June last year to canvass opinions on a range of measures that could improve public protection against sex offenders, including a registration requirement. There was strong support for the idea of registration—as there was for all the proposals in that document—and the Bill has been drafted in the light of the detailed comments that we received on how the scheme should work in practice.
  Recent tragic cases have brought home to all of us the risk posed to children by paedophiles. There is a clear need for additional measures to strengthen the arrangements already in place to protect the public against sex offenders. We should not delude ourselves into thinking that there will ever be a complete defence against the determined sexual predator, but the Government must, and will, do all that they can to make sure that children can be protected as far as is possible.
  The primary purpose of requiring convicted sex offenders to notify the police of their name and address and of changes to those details is to ensure that the information contained within the police national computer remains fully up to date. At the moment, the address held in police records will be the last one known to the police, which is usually the one where the offender was residing when convicted. The unsatisfactory result is that the police have no means of learning when a convicted sex offender has moved into their area.
  Mr. Andrew Robathan: Are the arrangements different for any other sort of offence? For example, if a repeated drugs offender or repeated mugger moves house, does he have to register his address somewhere?
  Mr. Maclean: No, such offenders do not have to register their address. The requirement to register is an innovation and, so far, we are proposing that it should apply only to those convicted of the offences listed in schedule 1. Of course, prisons notify local police of people leaving prison who were convicted of serious offences, and those who have received a life sentence may have conditions built into their life licence that they should notify the police of any change of address. However, other than in those circumstances, there is no requirement on individuals to tell the police that they are moving or, indeed, that they have moved.
  Mr. Peter Thurnham: I am sure that the Government want to do everything possible to ensure that good information is held The Minister mentioned that the police are passed information when an individual is released from prison, and I believe that that information is also passed to social services departments. Will the Minister therefore clarify the instructions for local authority departments? In the paper, "Working Together", which was published a few years ago, it was said that local authorities should not keep lists of suspected offenders, despite the fact that there was a court case—Regina v. Devon county council—in which local authorities were held to be responsible for keeping such information and using it.
  Mr. Maclean: It may be legitimate for authorities to keep lists of offenders, especially when there is any

  25
  likelihood of their seeking employment with children. As I continue my speech, the hon. Gentleman may be satisfied by comments that I make. In addition, I shall address another point that he raised in the press at the weekend.
  Mr. Kevin Hughes: Will the Minister assure us that he believes that the Bill's provisions are sufficient to deal with paedophiles who, as he probably knows, frequently change their names and the areas in which they live? One matter that concerns me is the difficulty that the police and social services have in keeping track of such people when they have changed their name or moved to another area. Is the Minister happy that the Bill's provisions will ensure that paedophiles can be tracked by the police and social services?
  Mr. Maclean: The hon. Gentleman makes a good point, which I shall come to shortly. The short answer is no. That is why I am informing the House that I shall propose a small amendment to impose a requirement for additional information to be provided by the person, to enable the police to identify more accurately the person standing at their desk and giving them a name and address. I have concluded that the requirement for merely a name and address needs to be strengthened.
  Sir Patrick Cormack: If the aim of the provisions is to give added protection and security to the general population and to act as a deterrent to a potential offender, and if that is such a splendid idea, why are the provisions not extended to other categories of dangerous people? There seems to be some illogicality in my right hon. Friend's proposals if he limits them in that way.
  In that context, did my right hon. Friend see the remarkably interesting and sensitive article by Matthew Parris in The Times last Friday?
  Mr. Maclean: Yes, I did see the article and I shall refer to it in a moment, but I say to my hon. Friend that we must not attempt to bite off more than we can chew.
  I believe that everyone accepts that, among criminals, paedophiles are in a special category. We can distinguish their sexual activity from that of violent criminals, muggers or other serious criminals because, as our research appears to show, usually paedophiles are highly manipulative and clever and often their offending behaviour intensifies as they get older. They are in a particularly dangerous category, and the request by the police for some form of register was made to tackle the particularly recognised problem of paedophiles.
  That is a sensible starting point. Once those arrangements are in place—bearing in mind the fact that the police will have the administrative burden of dealing with the large number of paedophiles who will register under our proposals—we might be trying to run before we can walk if we try to go much further before we have a successful paedophile register in place.
  Mr. Barry Sheerman: Will the Minister reassure me and the House that the register is not only for paedophiles but is a register of sex offenders? He knows from my recent questions to him that in this
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  country child prostitution is rife and successful prosecutions against those who entice young people into prostitution are minimal—there have been only six in the past five years. To be effective, a register must be backed by good detection and criminal proceedings.
  Mr. Maclean: Of course the hon. Gentleman is right. On his first point, the Bill is properly called the Sex Offenders Bill. For shorthand, we have tended to call it the "paedophiles Bill" and to talk about the paedophiles register, but schedule 1 of the Bill includes not only offences against children, but other sexual offences, including rape.
  Mr. Rod Richards: My right hon. Friend said that paedophiles were in a special category. Does he accept that paedophiles are mentally sick people for whom there is no effective treatment, so they should be detained indefinitely? Will he consider that point, and do so in the context of amending the mental health Acts, which effectively would do away ultimately with the need for a register?
  Mr. Maclean: I hear what my hon. Friend says. Some paedophiles may fall into that category, but I do not think that all could be defined as such—although I suspect that we would all say that those who kill someone else must be sick to do such a thing. One of the difficulties of dealing with hardened paedophiles is that they do not consider their activities to be wrong; hardened paedophiles believe that the rest of us have set unfair parameters to their sexual activity. They do not believe that having sex with children is wrong—many of them believe that it is a right thing to do and that we are the wrong ones for trying to restrain that activity. That is what makes them especially dangerous, and that is why some are so clever and manipulative.
  I do not regard the Bill as a panacea to prevent all sexual offences against children; no measure can do that. No measure can control all paedophiles, but the Bill is a significant step in helping the police to track down the whereabouts of those who may be offending against children. If the police are armed with the information provided under the Bill, it will not only help them to identify suspects once a crime has been committed; it will act as a deterrent to some reoffenders.
  I want now to explain the main provisions of this part of the Bill, and to describe the key clauses. The registration requirement will apply in any part of the United Kingdom to all who are convicted of a qualifying offence, either there or in any other part of the UK. It will apply equally to those convicted under courts martial, and to those convicted in the UK of offences committed abroad—under part II of the Bill. In England and Wales, it will also include those who are cautioned for any of those offences.
  The qualifying offences are set out in schedule 1. They cover sexual offences involving children, including child pornography offences, and also the most serious sexual offences against adults: all cases of rape and attempted rape, and cases of indecent assault for which a sentence of 30 months' imprisonment or more has been imposed. The Bill is intended to protect children, both boys and girls.
  The Government intend to add one further offence to the list set out in schedule 1. We wish to close a loophole in relation to the prohibition on importing indecent and

  27
  obscene material featuring children. Difficulties with establishing possession under section 160 of the Criminal Justice Act 1988 can sometimes arise; but on the same facts, it is possible to secure a conviction for importation under section 170 of the Customs and Excise Management Act 1979. We shall therefore table an amendment in Committee.
  It is the paedophile and the serious sex offender whom we are targeting. That is why a number of offences that would otherwise attract registration have age-related exemptions. Some people have sought to argue that all consensual homosexual acts should be excluded, but we must be careful that, in seeking to exclude consensual sexual offences from the requirement to register, we do not inadvertently place under-18-year-olds at risk. In his article in The Times last Friday, Matthew Parris suggested incorrectly that consensual homosexual acts between adults would be caught by the Bill. The age exemptions focus on consensual teenage sex and adult homosexual acts. By restricting the age exemption in that way, we have been mindful of the possibility of manipulative and coercive pressure being exerted by older people on younger impressionable people.
  The requirement to register applies indefinitely to those convicted of the most serious offences—that is, those sentenced to imprisonment for 30 months or more. Those sentenced to shorter periods of imprisonment are required to register for a finite period: up to 10 years if the sentence is more than six months, and seven years for a sentence of six months or less. Non-custodial penalties and cautions will attract a registration period of five years.
  Those are significant requirements—rightly so, in the Government's belief. Registration periods need to be long enough to reflect the long-term offending pattern of paedophiles. Should the offender be convicted of a further relevant sex offence, the requirement to register will be extended; or if it is after the expiry of a registration period, a further one will be imposed. Periods of registration also apply to persons found not guilty of one of the schedule 1 offences by reason of insanity or by having been found to be unfit to plead, even though they committed the act with which they have been charged.
  Mr. David Alton: Does the Minister recall the harrowing reports last year of two young girls, aged nine and 13, whose charred remains were found in a brothel in Bangkok? Will he assure the House that those guilty of offences committed overseas against children will be included on the register? If that is not done, surely there will be more of an impetus to export sexual offences against children, if British nationals believe that they can commit them abroad with impunity.
  Will the Minister comment on whether he thinks that one month's imprisonment is long enough for someone who fails to register?
  Mr. Maclean: I shall shortly be commenting on sexual offences committed overseas, in the context of part II; but I believe that it is not possible to require people convicted of any offence abroad to register here. If a paedophile who has committed an offence abroad is convicted in the
  28
  United Kingdom, we can certainly impose the requirement, but not on people convicted of any offence overseas who have not been convicted in this country.
  Mr. David Mellor: I warmly welcome the Bill, but can my right hon. Friend help me with the thinking behind the point that he was elaborating? He said a very true thing that bears out my experience of more than five years in his office. He said that paedophiles are incorrigible, all the more so because they believe that society is wrong, and that they are not. Clearly, paedophiles are the criminals least likely to mend their ways.
  Once the decision has been taken—a major and significant step—to require people convicted of paedophile offences to have their address registered with the police, why is a distinction drawn, based on how long each has been required to serve in prison? That depends on two variables, neither of which is particularly reliable. The first is whether the judge got the initial sentence right. The second is the difference between a fumbled indecent assault and the murder of a child, which depends on how clumsy were the attempts to restrain the child's efforts to protest. That has been my experience. Once people are convicted paedophiles, why should not they remain on the register throughout their lives?
  Mr. Maclean: My right hon. and learned Friend makes an interesting point. I believe that we have got the balance about right. It would be difficult to impose a lifetime registration requirement on any person convicted of a sexual offence of the type specified in schedule 1. There may be a philosophical difference between us. I am open to the suggestion that the registration periods are not right, that they could be extended or perhaps that they should be shortened, but it would be a draconian measure to impose a lifetime requirement on any person convicted of any of the sexual offences in the Bill.
  The requirement as drafted is quite draconian. For anyone convicted of a sexual offence who gets a sentence of more than 30 months—not a long sentence—there is a lifetime registration requirement. For anyone who gets more than a six-month sentence, there is a registration requirement of 10 years. Those are fairly hefty, but I shall listen carefully to my right hon. and learned Friend's speech if he catches your eye, Madam Speaker. He might be persuasive, but at present he is not.
  Mr. Alun Michael: I congratulate the Minister on his approach and on his willingness to listen to other hon. Members' arguments. That is extremely helpful to the atmosphere of debate. The relationship between offences committed abroad, which are listed in schedule 2, and offences committed in this country, which are primarily listed in schedule 1, is extremely important. Is it the case that offences listed in schedule 2—those committed abroad—which the schedule brings within the ambit of United Kingdom law, will therefore require registration in the same way as offences committed in the UK under schedule 1? I note that schedule 2 is more narrowly drawn and I understand the reasons for that, but should there not be a requirement for the registration of offences dealt with under UK law?
  Mr. Maclean: I am grateful to the hon. Gentleman for his kind words. He may be slightly confused about what I said or by my answer to my right hon. and learned Friend the Member for Putney (Mr. Mellor).

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  It is clear that those who are convicted in the United Kingdom of offences in schedule 1 will be required to register. Those who may be convicted of offences overseas would not be required to register. [HON. MEMBERS: "Why not?"] That would be impossible. In most cases, we would not know whether people had been convicted overseas. In cases where someone had committed offences overseas that were tried in the UK under part II of the Bill, and the person was convicted in this country of offences committed overseas, the requirement to register would exist.
  Mr. Donald Anderson: The Government are likely to be informed about offences committed overseas because, as the Minister well knows, most of the groundwork is performed by an international network of non-governmental organisations that would readily seek to protect children by providing the relevant evidence to the Government. Will the Government reconsider the matter, otherwise there will be a glaring loophole in the legislation?
  Mr. Maclean: I suggest that the hon. Gentleman reconsiders the enormity of his suggestion. We operate—as does part II of the Bill—the dual criminality test. Everyone who is convicted by a British court of the relevant offences will be required to register. However, the hon. Gentleman suggests a haphazard registration system that would include those who might come to public attention because they had been convicted of an offence in a foreign country. I suspect that the vast bulk of such people would not have to register and that the British dual criminality test would not operate. People might be convicted in foreign countries of offences that are not recognised in British law and that are not compatible with our requirements. For instance, we all know that the age of consent differs between countries. It is a recipe for disaster.
  Our prime duty at this stage is to deal with criminals who are convicted in this country of serious sexual offences—there are about 2,000 such cases a year. Once we get that system working correctly, I might be tempted to examine the radical extension that the hon. Gentleman proposes.
  Rev. Martin Smyth: I appreciate the Minister's argument, but I press him to re-examine the matter even before we consider it in Committee. His proposal might send a signal to people who have such tendencies and who would be convicted in a British court to commit those offences abroad. I ask the Minister to reconsider his position.
  Mr. Maclean: I am always happy to consider carefully the views expressed by hon. Members on both sides of the House about an entirely non-political issue such as this. I shall examine carefully all the points that have been made. However, I think that the hon. Member for Cardiff, South and Penarth (Mr. Michael) focuses on only one narrow question. The Bill has two parts and the second part deals with sex tourists. We intend to introduce powers to prosecute people in this country for offences that they have committed overseas. I think that there will be few such prosecutions in this country, not because people will wish to be prosecuted overseas, but because of the difficulty in obtaining evidence. Britain has a very
  30
  good record of extraditing those who have committed offences overseas, and we shall continue that practice provided that the normal rules are satisfied. Those involved then face tough penalties in the countries where the offences were committed.
  Mr. Nigel Evans: I welcome the legislation because my first Adjournment debate in the House of Commons addressed the problem of sex tourism in Thailand. We must do all that we can to ensure that people do not escape the law in this country by perpetrating dreadful acts abroad. I urge my right hon. Friend to reconsider the case of someone who travels abroad and who is tried and convicted abroad of a serious sexual offence. Is it not better to catch some such paedophiles on the register in this country rather than saying. "Oh well, people will fall through the net, so we had better have none rather than some"?
  Mr. Maclean: I am not sure how our obligations under the European Court of Human Rights would be affected by a provision that said, "We shall impose draconian conditions on those whom we know about but not upon those who have been convicted abroad but whose convictions have not come to our attention." That is not a sensible way to proceed legislatively.
  If serious sexual criminals from this country are returned to foreign countries to stand trial, the National Criminal Intelligence Service will know about it. That organisation keeps tabs on such people, and it will notify the police if they return to this country after they have served their sentences. The National Criminal Intelligence Service performs a valuable liaison and intelligence role in keeping the police informed of the whereabouts of the most serious paedophiles and sexual offenders.
  I am conscious of the fact that many hon. Members wish to speak in the debate, so I must make progress.
  Clause 2 defines the nature of the notification requirement. Any change of name or address must be registered within 14 days, either by personal attendance at a police station or by written notice to the police. The Government intend to tighten the notification requirement in the light of further views put to us by the police, who have argued that in practice they will need fuller information, to ensure the proper identification of the offender furnishing the information.
  We shall therefore be tabling an amendment to require a person to notify his name and address at the time of conviction, his last notified name and address, his date of birth and the information which he is notifying the police has changed. We shall also be requiring that notification be made to a police station in the police force area where the offender's address falls. That will remove unnecessary administrative burdens from the police and will be more effective in ensuring that the local force is the first to know.
  Clause 3 makes failure to comply with the requirement, or false notification, a criminal offence. At present, the penalty is a fine of up to £1,000—that is level 3 on the standard scale—or up to one month's imprisonment, or both. Once again, we have reflected further in the light of views expressed since the Bill was published, from a number of bodies including those concerned with the protection of children, as well as the police. The penalty in the Bill was decided upon in the light of responses to the original consultation.

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  We are now persuaded, however, that a more severe penalty would provide a more effective incentive in persuading offenders to comply with the registration requirement. We shall therefore be tabling an amendment to raise the maximum penalty to a period of imprisonment of up to six months or a fine of up to £5,000—that is level 5 on the standard scale—or both. We shall also table an amendment making it clear that the offence of failing to register, or false registration, is one that will continue to be triable beyond the normal six-month period for a summary offence.
  I take the opportunity to thank those who have commented on the proposals set out in the Bill since it was published, enabling us to announce some sensible amendments even before the Bill is considered in Committee.
  Clause 4 sets out certain provisions that relate to young offenders. The periods of registration that would otherwise be applicable, be they five, seven or 10 years, are halved for offenders under 18 years of age, and a custodial sentence cannot be imposed for non-compliance. In addition, the court has the power to direct that a parent or guardian should bear the responsibility for complying with the requirements if the offender is under 18, or under 16 in Scotland.
  In some circumstances, the registration requirement will apply also to those convicted of relevant offences in the past. Those offenders still in contact with the criminal justice system—those in prison or on probation, for example—will be required to register. Those still in prison will be required to register after release if the period of registration from the date of their conviction for a qualifying offence still has time to run.
  It would be a vast undertaking to track the many thousands who would be involved and then to calculate who should still be subject to registration having regard to the length of sentence originally imposed upon them. It would be a still greater exercise to subject all those persons to a fresh risk assessment, as some have suggested. We concluded that it would be impracticable to place such an obligation at large in that way.
  Having examined the measures taken to protect children from sexual abuse in the United Kingdom, I come to the vile activities of British citizens and British residents who commit offences against children abroad.
  Mr. Thurnham: Does the Minister agree that probably more than 50,000 previous offenders will not be within the terms of the Bill as constituted? It will be decades, therefore, before the register is of any use to anyone.
  Mr. Maclean: I disagree with the last part of the hon. Gentleman's remarks. The register will be of immediate use when it is set up. It will contain over 2,000 names a year from England alone. The hon. Gentleman is right in the first part of his observations, however, in that there are likely to be about 50,000 people—that is, if we go back far enough—who have been convicted of a sexual offence. Some of those previously convicted may still be active paedophiles. Equally, many of them will no longer offend.
  It would be impossible to track down those who have been convicted since 1956, when the Sexual Offences Act was introduced, or who were convicted before the war.
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  Some people would be in their 60s or 70s. We would have to go way back in taking account of a 70-year-old, for example, who was convicted in the 1920s, 1930s or 1940s of certain offences that do not match current offences. Assuredly, some homosexual acts would be brought into consideration, committed with or without consent. We would have a dog's breakfast on our hands. We are talking of information that the police would find impossible to make sense of and to assimilate.
  I am happy to listen to what the hon. Gentleman has to say if he wishes to explain in detail—that is, if he catches your eye, Madam Speaker—the report that appeared in the weekend press. On the basis of the information that he provided over the weekend, I do not think that it is practicable to try to track back every sex offender who passed through the United Kingdom's criminal justice system and then to subject those people to a new risk assessment.
  It is of deep concern to the Government that people from this country are among those who travel to countries where child prostitution is rife and sexually abuse young children there. Parliament recently showed its commitment to addressing the particular problem of child sex tourism when it enacted the Sexual Offences (Conspiracy and Incitement) Act 1996. It recognised the importance of extending the jurisdiction of our courts over acts of conspiracy or incitement in the United Kingdom to commit sexual offences against children abroad.
  The question of taking extra-territorial jurisdiction over the offences themselves presented the UK with some difficulties, and has required some pretty careful thought. The requirement of oral testimony and the right of the defence to cross-examine witnesses are central to criminal trials in this country, and it is, therefore, much more difficult for us than it is for many other countries to mount successful prosecutions for offences committed abroad. Nevertheless, it was right that the Government should have considered carefully the concerns expressed to us, and in the light of those concerns, we set up an interdepartmental review of extra-territorial jurisdiction to consider the general position.
  That review, which reported in July last year, confirmed that considerable practical difficulties would be involved in obtaining sufficient evidence and witnesses from abroad, but concluded that some prosecutions could be successful in certain circumstances. In view of that, and the particularly serious and unpleasant nature of the offences concerned, the Government concluded that extra-territorial jurisdiction could be justified in this case.
  Clause 7, therefore, makes it an offence in England and Wales or Northern Ireland to commit, in a country or territory outside the United Kingdom, the offences listed in schedule 2. For England and Wales and Northern Ireland, those will be the same as those covered by the Sexual Offences (Conspiracy and Incitement) Act 1996, which include rape, sexual intercourse with a girl under the age of 16, buggery, and indecent assault on a child. In addition, the major child pornography offences will be covered.
  The clause applies to offences committed by British citizens and residents of the United Kingdom.
  The jurisdiction of the courts would be extended in that way only where the conduct concerned was a criminal offence both in the United Kingdom jurisdiction and in the territory of the state where it was committed. That is

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  the so-called dual criminality test, and it is an important safeguard. We in this Parliament rightly consider that it is our function to pass laws that apply in the territory of the United Kingdom. We would take great exception if the law-making body of another country attempted to pass laws that would apply here. Equally, therefore, we must not attempt to export our laws overseas. The dual criminality test avoids that trap. The Bill provides that the test is to be taken as satisfied unless the defence shows grounds for believing that it is not so satisfied; in which case, it is a matter for the courts to decide.
  Clause 8 contains the similar Scottish provisions. They are framed slightly differently from those applying in the other United Kingdom jurisdictions because of the differences in Scots law. For instance, several of the offences caught by the Bill in Scotland are common law rather than statutory offences. However, the effect is essentially the same in all jurisdictions.
  The provisions will supplement the Government's other activities in discouraging child prostitution worldwide. We continue to believe that the best place for prosecutions is the country in which the offences are committed. If a British tourist was accused of abusing children overseas, we would look to the authorities in the country concerned to prosecute him under their own laws. This country, unlike many others, has no barrier to the extradition of our own nationals, provided of course that the normal extradition safeguards are satisfied. However, if extradition is not possible for any reason, for offences as obnoxious as these, it is right to make the necessary commitment to bring perpetrators to justice here.
  The Government have a proud record in the fight against sex offending, particularly offences against children. That was clear from the prominent role that we were able to play at last August's world congress on the commercial sexual exploitation of children, in which the Under-Secretary of State, my hon. Friend the Member for Leeds, North-East (Mr. Kirkhope), who will be winding up the debate, took a leading part. But there is always more to be done, and the Bill before the House today marks an important next step forward. I commend it to the House.
  4.14 pm
  Mr. Alun Michael: I welcome the Bill, and give an assurance that we will work with the Government to get it through as quickly as possible—although I hope that we can improve it in some respects during the process. We promise to do what we can to work positively, particularly in Committee.
  I also welcome much of what the Minister has said. He promised to introduce a number of amendments, and, although we shall need to examine the drafting of those amendments carefully, from what the Minister has said it seems that they will be helpful and positive. He has expressed a willingness to listen to representations on points of detail, and I think that we can look forward to constructive discussion during the Bill's passage.
  Nevertheless—despite the Minister's positive approach—I regret the way in which the Home Secretary and the Prime Minister delayed the introduction of the Bill. I remind the House that this is yet another example of Labour's setting the law and order agenda, and forcing the Government to take action against paedophiles. For a long time, the Government rejected Labour's call for
  34
  domestic prosecutions against child sex tourists from Britain, and last year they blocked attempts by Labour Members—in particular, my hon. Friend the Member for Rossendale and Darwen (Ms Anderson)—to set up a national register of paedophiles.
  Despite a clear statement from the Home Secretary at the Conservative party conference in October that he was taking action on paedophiles and child sex tourists, both proposals were dropped from the Queen's Speech, and only after the intervention of my right hon. Friend the Member for Sedgefield (Mr. Blair), the Leader of the Opposition, did the Prime Minister—in one of the fastest U-turns in political history—accept the case for Government action.
  I welcome the Minister's conversion in relation to offences committed abroad, which he has had to reject in a number of debates in which he and I have participated over the past couple of years. Having made that point—because I do not think that it is a piece of history that should be completely disregarded—I assure the Minister that we will co-operate with the Government to put the Bill on the statute book as soon as possible, and to ensure that it targets, in an appropriate way, those who should be targeted.
  Important practical questions must be answered, and I hope that the Under-Secretary of State will answer some of them at the end of today's debate. First, what will the Government do to ensure that the introduction of the legislation is effective in practice?
  Secondly, how will information be held? Given the current stage of the development of information technology, it should be possible for information to be updated rapidly and made available throughout the country, without the difficulties that have featured in the keeping of manual records in the past. Are the Government acting to ensure that, from the outset, the information that is registered is up to date, and accessible to all who need to use it? Thirdly, how will the information be used? The question of access is not covered in the Bill.
  Even more important, what is to be done with information that is registered with the police? I can tell the Minister that chief constables are not sure what their responsibilities will be. Their initial reaction is that information will have to be passed on; but to whom, and in what circumstances? That, too, is not covered in the Bill. It is important to have clear and effective guidelines on how information is used.
  It may well be—I offer this as a suggestion to the Minister—that an amendment to the Bill, enabling the Home Secretary to set out clear guidelines in a statutory instrument after consulting widely, would ensure the existence of a protocol subject to scrutiny by the House, but absolutely clear to those holding the information. I think that it is only fair to the police to make it clear what they are expected to do with that information, and also in the interests of the public for everyone to be clear about the way in which that information is to be used and acted on.
  Mr. Donald Anderson: Much of the good work in the Philippines, Thailand and other countries is done by British non-governmental organisations. Does my hon. Friend incline to the view that responsible organisations should in certain circumstances be able to consult the

  35
  register here to find out whether individuals they suspect of being involved in paedophile activities in those countries are registered here?
  Mr. Michael: My hon. Friend makes an important point about the way in which information about paedophiles is exchanged between countries. Access from people overseas to the register is different from access by British NGOs. It is a sensible point to consider in Committee, and I hope that the Minister, who said that he would listen to points made during the debate, will consider that one. I look forward to discussing the point in Committee.
  To return to the practicalities of handling the information, there is the question of how the registration of information in the Bill relates to the Police Bill, which we will be debating in the near future. We also need to set the Sex Offenders Bill in context with other activities in which Government should be taking a lead. The Minister has presented the Bill as part of a coherent strategy, but a real strategy needs action by Ministers, not just legislation, important though Acts of Parliament should be.
  I am sure that the Minister agrees that the low level of sex offence convictions is worrying, that the high level of abuse shown by different indicators is a matter of concern, and that there is the wider context of child protection, which my hon. Friend the Member for Stockport (Ms Coffey) will particularly deal with in the debate. We cannot just shrug off the responsibility of dealing with these issues to local authorities and social workers. There must be a proper understanding of the problem, and a lead from Government.
  The extent of the problem is illustrated, for instance, by the fact that, in 1994–95, Childline counselled more than 89,000 children about all sorts of problems and concerns, but 21 per cent. of those counselled—more than 18,000—rang about physical or sexual abuse, and often both. The recorded crime statistics do not always identify the age of the victim, but it is sufficient to point out that, for unlawful sexual intercourse with a girl under 13, there were 178 convictions in 1995—considerably lower than two years earlier—that there were 1,287 convictions for gross indecency with a child, 3,150 convictions for indecent assault on a male, 4,986 convictions for rape of a female, and 150 convictions for rape of a male—although, as a new offence, that last statistic may be less reliable.
  There is considerable evidence of the extent of the problem. For instance, "The Cook Report" questioned more than 300 child sex offenders in prison. The findings are clear. The programme said:
  "Our respondents told the police they'd committed between them some four thousand eight hundred offences, but in truth, as the survey shows, the total was nearer fifty thousand. We also asked them how long they'd got away with it before they were caught and these are fairly typical examples. This man, nine a half years, this man fifteen, this man nearly twenty, and this one a staggering thirty-two."
  Like the Minister, I feel that, to an extent, we are dealing with the tip of the iceberg. It is therefore important to set the Bill in context against the nature of the problem as a whole.
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  That has led to organisations welcoming the Bill as a step forward, but seeking to remind us of the context. For instance, the National Society for the Prevention of Cruelty to Children said:
  "A Child Sexual Offenders Register will assist in the protection of children, but it must be co-ordinated with other measures which will offer a more complete package of protection. For example, there must be improved vetting procedures linked to a public education campaign about child sexual abusers."
  It also calls for investigation systems in court procedures that will offer a comprehensive package of child protection.
  Getting the law right is one aspect of the matter, and I do not underestimate its importance, but the systems that are used to investigate, prosecute and try offenders and the way in which the wider context of child sex abuse is dealt with are also extremely important. We deal only with what we put in legislation at our peril. I hope that, during the debate or in Committee, we will go further and set the measure in context. The Minister sought to set it in the context of other legislation, but in terms of this measure, we need to look at the Government's wider responsibilities.
  Recently, some of my hon. Friends from a number of Front-Bench teams met representatives of children's charities to discuss issues that worry those charities. The need for co-operation and co-ordination between the public and private sectors came out as a clarion call from those discussions, and it was clear that that is not the way that the public and voluntary sectors are used to operating. In the light of that, I note the comments on the Bill by the Children's Charities Consortium:
  "whilst the Bill's purpose is to be welcomed, it can only form a very limited part of a much more comprehensive response to child sexual abuse. The majority of children are not abused by convicted offenders and that in the minority of cases where prosecution follows the disclosure of abuse, the rate of convictions remain disturbingly low."
  In relation to prosecution, the consortium calls for the full implementation of the Pigot committee's recommendations on children's evidence. The Opposition, and especially my hon. Friend the Member for Newcastle-under-Lyme (Mrs. Golding), have been pressing for that for many years. There are concerns about the way in which judges use the facilities currently available to them, and that matter needs to be pursued.
  On the other side of the equation, Liberty and others have expressed concern at the possibility that some people who are not a danger to children or to other adults may be inadvertently affected by the Bill. I welcome the Minister's acknowledgement of that. I am not sure that the targeting is yet sufficiently precise, and I hope that the Minister will listen to constructive debate in Committee. There is also a risk that we might miss some offenders who are a danger to children. For example, a 13-year-old girl who was subjected to abuse by a man who is just under 20 would not be caught by the register as it stands.
  I understand the difficulty of targeting such cases, which the Minister and I have debated in the past. However, if we use the clear consensus to target the right offenders in the right way, amendments could be used to fine-tune the legislation. The issue of child sex offences overseas has been mentioned, not least by my hon. Friend the Member for Swansea, East (Mr. Anderson).
  Mr. Julian Brazier: Perhaps the hon. Gentleman could expand what he said earlier. He said that

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  the vast majority of acts of abuse were not committed by convicted criminals, and that they could make up only a small part of the total. Many hon. Members agree that we need to use the Pigot committee recommendations. Does the hon. Gentleman think that a register should include information on those against whom there are strong grounds for suspecting child abuse—perhaps even grounds that have been tested under civil conditions in court? Is the hon. Gentleman arguing for the broadening of the register?
  Mr. Michael: I am certainly not asking for that at this stage. The Government left that as an open question for the future, and there is enough to be done at this time in targeting convicted abusers. There is considerable evidence that many convicted people have a string of offences over a long time. Therefore, some of the most dangerous abusers are in that category.
  I should make the point—which my hon. Friend the Member for Stockport will deal with again later in the debate—that other registers exist in education and social work. We should be clear about how the Bill's provisions will fit in with those registers. The hon. Member for Canterbury (Mr. Brazier) was right to highlight the problem, but the Bill deals with specific, targeted activity. We have enough problems in dealing with that activity without now attempting to deal with the issue too generally. I believe that the Government came to that conclusion—although the Minister will correct me if I am wrong—and I think that it is the right conclusion.
  Mr. Maclean: The hon. Gentleman's summary of the Government's position is about right. Trying to impose a registration requirement on people whom the police suspect are apt to abuse would be a very radical measure. How would people know that they were supposed to register if the police have not told them that they are suspect of activities? I do not know how we could force people to register if they are merely suspected of abuse.
  However, I can assure my hon. Friend the Member for Canterbury that, if police and their local intelligence systems have information on individuals, they will maintain that information. There is no requirement for an individual to register. If the person seeks a job, however, the police may share their information—there are proposals on access to criminal records—with relevant child protection agencies.
  Mr. Michael: The Minister's remarks confirm the Government's view—which is shared by hon. Members on both sides of the House—on how far we should proceed now, and leaves open the possibility of linking and developing information in records in future, when more experience has been gained.
  In the past, the Minister and I have stressed the need for international co-operation on child sex offences overseas. It is much easier to agree with him now that he has accepted extra-territorial jurisdiction, at least in some cases. I ask him to consider—as hon. Members asked in earlier interventions—provision for registration of offences abroad, at least in the clearest and most flagrant cases. Such provision would be consistent with his earlier remarks, especially if it were part of a wider protocol and of the development of agreements between nations on how to deal with that international problem.
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  I am sure that all hon. Members would agree that few crimes are more appalling and devastating than sexual crimes committed by adults against young children. The Labour party has clearly and often expressed its position on the issue, and, in June 1996, published "Protecting our Children". As they are already on the record, I shall not go into the document's details now.
  However, the document stresses the point that measures must be complementary if we are to deal adequately with the problem. It is vital to ensure that our procedures for tackling child sexual abuse are as effective as possible, and that the Bill's objectives are efficient and well-targeted. In that context, we look forward to considering the Bill's details in Committee.
  In the debate on the Crime (Sentences) Bill, we underlined the importance of the effectiveness and availability—in prison and in the community—of treatment programmes for convicted and unconvicted sex offenders.
  There are some problems in the Bill's details on targeting, as some of those who should be covered by the registration requirements may be missed out. There are also problems in ensuring that the Bill's provisions do not apply accidentally to those who are not a danger to others, and particularly not a danger to children. The Minister made it clear that, so far as possible, his intention is to hit the right targets, not unintended targets. I accept that assurance, and offer to work with him to help to fine-tune the Bill. I believe that we can make constructive proposals towards a well-targeted measure.
  I should point out the dangers of the Bill's current phraseology in respect of notification of address. It requires the address of a person's
  "sole or main residence in the United Kingdom".
  Why is it limited to that? People in a number of professions have more than one important address—the office of Member of Parliament springs to mind. Most hon. Members spend a considerable part of each week at two different addresses. Many people who work in London are in similar circumstances, as are people who live in one part of the country and work in another. Should that not be covered in the Bill?
  A person may have a flat or home in one place, but spend part of the week with a partner, who may have young children. That could cause difficulties, as the Minister well understands. The Bill does not cover those circumstances. There is no requirement for offenders to inform the police where they spend the most significant part of their time.
  Commercial travellers, business people and lorry drivers travel a great deal, and there have been examples of that being relevant to offending behaviour. I hope that the Minister will take that point on board, and that we will be able to amend the Bill in Committee.
  There are also problems in that the public will assume that the police have certain information once the register becomes law. It is important that the register should not only aid the investigation of new sex crimes but act as a deterrent to those on the register and assist agencies that offer treatment programmes.
  I do not know whether the Minister heard a former offender being interviewed on radio last Thursday night. That individual acknowledged that he would always be a danger. He was reminiscent of a former alcoholic when

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  he spoke about the danger of constant temptation. Unlike the people to whom the Minister referred, he acknowledged the long-term nature of that danger. I am sure that the Minister accepts that the fine tuning of the Bill should reflect the need to offer such people help and the opportunity to avoid further offending, as well as the capacity to assist the police in investigating offences.
  Some organisations have expressed concern about the Bill in respect of cautions. As a caution requires the admission of guilt, some of those fears may be misplaced. Perhaps the Bill should be amended in Committee, however, as a lack of clarity could produce unintended consequences.
  Finally, it is important in this and other legislation not only to be sure that information is available to employers who are considering taking someone on—whether they are public bodies, in the voluntary sector or private organisations involved in activities such as child minding—but to provide for clear checks on employers. The Government did not accept that proposal in respect of the private security industry, where there is clear evidence of offenders running companies. However, it becomes even more important in respect of the care of children.
  This is an important measure, which should be targeted on offenders who are a danger to children and others. It is important for the confidence of the public that we are clear about what will happen to the information on the register, and that the police and other agencies will work together to ensure that appropriate action is taken to avoid reoffending. Those issues need to be dealt with in the House. I welcome the Minister's acknowledgement of that, and I look forward to a constructive—albeit brief, I hope—Committee stage, so that the Bill can be improved and can pass on its way without delay. I welcome the Bill and the spirit in which the Minister has introduced it.
  4.39 pm
  Mr. David Mellor: I echo the welcome given to the Bill by the hon. Member for Cardiff, South and Penarth (Mr. Michael) from the Labour Front Bench. I congratulate my right hon. Friend the Minister on bringing it forward. The approach of those on both Front Benches to the Bill is a model of how Parliament should operate. On some subjects, deep and often embittered partisanship is inevitable. On others, hon. Members do the House no disservice by working together, pooling our experiences and talking sensibly about an issue that is beyond party politics but is of fundamental importance.
  I shall not waste precious time saying how much I agree with the Bill when so many others want to speak. However, although I do not want to appear to be making the best the enemy of the good, there are ways in which the Bill could be improved. I see it in a John the Baptist role, pointing the way towards further changes that may become inevitable, following the thinking behind the Bill. I entirely accept that it will be a major achievement to get the Bill on the statute book before the election. I do not want any of my thoughts to impede that progress, but it is important to look ahead to work which the next Parliament will have to do on this important topic.
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  The Bill applies to all sex offenders, but to avoid exceeding reasonable time, so that everyone who wishes to participate in the debate has the chance to, I shall confine my remarks to paedophiles.
  I should like to return to the point that I raised with the Minister. It is in no sense a carping point. I appreciated what he said about the nature of paedophilia. It is important that we understand it. Many hon. Members have extensive experience of working in the courts, including the hon. Member—I could almost call him my hon. Friend without embarrassment—for Swansea, East (Mr. Anderson), who has had many years at the Bar, and my hon. and learned Friend the Member for Burton (Sir I. Lawrence). I have also had extensive experience working in courts and spent a number of years discharging the Home Secretary's discretion, under his superintendence, on the release of mentally disordered offenders and others. That experience brought me face to face rather starkly with the problems of paedophiles.
  Many middle-aged and elderly men who now sit in armchairs tut-tutting about the crime wave and the behaviour of the younger generation were, in their day, teddy boys, mods or rockers, and engaged in all manner of anti-social and often criminal activity. However, people grow out of such behaviour. The teenage burglar, the teenager who takes and drives away, or the teenage serial offender, often grows out of all that—and thank goodness they do, because, if certain people continued offending in adult life at the rate at which they offended in their teens, the situation would be pretty sad.
  That is not true for paedophiles, as my right hon. Friend the Minister eloquently pointed out. Paedophilia is perhaps the most deep-seated of all the perverse emotions and feelings with which people can be inculcated. We talk about paedophiles being "cured". I suspect that paedophilia is an inherent problem rather than one that people acquire. We therefore have to think about how it can be controlled. It is a variant of pathetic fallacy to think that it can be cured. I know of no basis on which it can be cured. It is a particularly devastating problem.
  Many crimes are vicious and unpleasant, but the crime of sexually abusing a young child, robbing that child of its innocence and sometimes of its life, is surely so repugnant that we are entitled to look for special ways of dealing with it and making clear society's abhorrence of such activities.
  Mr. Thurnham: Will the right hon. and learned Gentleman give way?
  Mr. Mellor: I should like to develop my argument. I shall not take a long time.
  As the Minister so eloquently said, the problem with paedophilia is that so deep-seated is the paedophile's predilection that he is likely to think that society is wrong.
  How many of us remember trying to outlaw the Paedophile Information Exchange some years ago? In countries such as the Netherlands, these people are still allowed to move about freely, which has caused the problems that have emerged in Belgium. Allowing them to spread and proliferate suddenly brings a dreadful day of reckoning. Anyone who has seen the national outpouring of grief and concern that followed the discovery of the activities of the paedophile ring in Belgium will know that we must not allow our country to deteriorate to that extent.

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  Against that background, I should like to make one detailed point. Because of the difficulties of getting children to give evidence on oath and obtaining convictions based on the uncorroborated evidence of a child—even though the Government have been able to make significant changes to prevent the evidential burden from being heavily against the child, some of them during my time at the Home Office—no more than 5 or 10 per cent. of paedophile cases come to the attention of the courts. Few experts would disagree with that—my right hon. Friend the Minister will have access to more experts than I do. When cases come to court, we should not create artificial barriers to prevent the full weight of the Bill from being brought to bear on paedophiles while they are likely to remain active.
  I mentioned in an intervention that may have gone on too long the important point—at least, I think that it is an important point, and I hope that I can persuade others to agree with me—that it is profoundly unlikely that a person just dabbles in paedophilia. Once a paedophile, always a paedophile, is a much more certain saying than once a burglar, always a burglar, or even once a rapist, always a rapist.
  I appreciate that there is a tendency not to go too far, and to offer a few concessions to those who oppose a measure. I understand why the barriers at 10 years and six or seven years have been introduced, but where is the opposition to the measure? I do not see it.
  I do not know whether my right hon. Friend is involved in the Home Secretary's discretion on life sentence prisoners, but when he considers dreadful child sex murders and looks at the previous convictions, he will realise that rarely does the tendency come out of the blue—there is normally a sign. It is rarely an equally serious matter, but lurking somewhere in the past is the clear evidence that the person in question has that particular intent.
  We are being asked to legislate on the basis that judges—almost as fragile a breed as politicians, as likely to get things wrong as right—pass the right sentence. My experience does not suggest that that is invariably—or even very often—the case.
  I know from reading more than 1,000 life sentence prisoner cases when I was at the Home Office, many of which involved the sexual or sadistic murder of children, that the difference between a nasty sexual assault and murder is not great. A child protests at the indignities that it suffers. The clumsiness and crudeness of the attempts to suppress that child's resistance will often make the difference between an offence that can be written off as indecent assault, punishable by a few months' imprisonment, and a murder, punishable by life imprisonment.
  Mrs. Llin Golding: I strongly support what the right hon. and learned Member is saying. He has identified the same issue as I picked out. Is it not true that many judges are not trained to deal with sexual cases, and pass too many lenient sentences, even when the children get caught? Only a fortnight ago, a case was brought up in the House. That case has gone back to the Court of Appeal because of the leniency of the sentence. The barrier of seven or 10 years seems artificial.
  Mr. Mellor: I am glad that the hon. Member has mentioned that point. She was an indefatigable
  42
  campaigner on these issues back in the 1980s when I was doing the job that my right hon. Friend the Minister is doing now. I welcome her further intervention.
  I found myself on television this morning discussing the case of Myra Hindley with someone who took the view that she should be released, and who thought that politicians should not intervene in such cases because they were a matter for the judiciary. However, I well remember how in 1983, when Leon Brittan, with my assistance, decided that the minimum period of imprisonment for those who were convicted of the sadistic or sexual murder of a child should be 20 years, there was an outcry from the judiciary. I regularly saw cases in which the Lord Chief Justice of the day would recommend only 14 years of imprisonment for such a murder.
  Against that background, I ask my right hon. Friend the Minister to put into practice the conviction he so eloquently expressed about the deep-seated nature of paedophilia. Given that, to use the old cliché—I suppose that clichés become clichés because they are true—we are dealing only with the tip of the iceberg when we deal with the cases that come before the courts, I ask my right hon. Friend please to make the law apply to all these people. In the sexual lifetime of an adult, seven years is the twinkling of an eye, and 10 years is not much more. We would have cause to regret somebody escaping the full force of the recommendations merely because their conviction became time-expired. That is one change to the Bill that it would not be difficult to make.
  I now move on to matters that are probably too difficult to deal with at this time, but which relate so directly to the Bill that it is worth at least pointing ahead.
  Having decided that it is right that the police should be able to keep tabs on people and that their addresses should be notified, we shall have to confront the problem—I am slightly surprised that the point has not been raised already in this debate—that is already quite commonplace in America. The problem is that, if the police have a right to know, why do the public not have the right to know? If someone with a string of convictions for sexual offences against children moves into a house, why should the nice young family living next door not be told about him? Why should the community not be told?
  I understand all the points about vigilantes and about people taking the law into their own hands. We need, however, to consider carefully the right way in which to deal with the problem. If we believe that paedophiles are in a category entirely on their own, we should consider whether it would be appropriate to take the exceptional step of saying that, when a paedophile lives in a neighbourhood, all those living in the neighbourhood should know.
  My right hon. Friend the Minister is right. One reason for requiring registration with the police is that it becomes easy for the police to trace someone who may have been responsible for a terrible offence. The other reason is deterrence; someone will feel that he is under pressure. It is a way of putting likely persistent offenders under pressure and telling them that they are unlikely to get away with the crime if they give way to their urges in a way that causes serious harm to young and vulnerable children. I believe that, in the longer run, we shall be hard put to resist the claims, which will undoubtedly come, that something should be done so that the public are let in on the secret about who is living in their street.

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  It is important that, although we see the Bill as a significant step forward, we do not make too many large claims for it. I want to draw attention to two recent cases which show how much further we shall have to go if we are serious about tackling the problem of paedophiles.
  I refer first to the murder of Sophie Hook. Sophie's father Christopher is someone I know well; I have discussed these matters with him, and I know that he has also discussed them with my right hon. and learned Friend the Home Secretary. Indeed, he discussed them with him back in November, and he raised with him the question whether the public should be told where convicted sex offenders lived. My right hon. and learned Friend undertook to talk to the Association of Chief Police Officers about the matter. Two months on, it would be interesting to know whether there has been any response. I am sure that not only Christopher Hook but some of the rest of us would like to know what the Home Office's latest thinking on the matter is.
  Sophie Hook was a nine-year-old. She was not one of the "streetwise" children we are told about—poor little mites who are left to wander the street by parents who do not care about them, and who are therefore in a vulnerable state. Sophie Hook was a cherished child, who illustrated the fact that good parents are as vulnerable as bad parents to having their children abducted; that is a salutary lesson for all of us.
  On a hot night two summers ago while on holiday, Sophie Hook was sleeping in a tent with her two cousins in a garden in north Wales. From there, she was abducted by a creature called Howard Hughes. He was notorious in his neighbourhood for his paedophile and other anti-social tendencies, and was regarded as a ticking time bomb. He was 6 ft 8 in tall, and wandered round the town dragging his rottweiler behind him; everyone was afraid of him. Sophie Hook, aged nine, was taken out of the tent, sexually abused, battered, beaten, tossed into the sea and left to die.
  The Bill will do nothing about Howard Hughes. We have to ask ourselves a question which came up, strangely enough, on television; television stations are usually the least likely places to find a real insight rather than a soundbite. I appeared on "Heart of the Matter" with Chris Hook to discuss the issue. One of the foremost forensic psychiatrists dealing with the problems of paedophiles put in a nutshell the dilemma we face as legislators, when he said that the trouble was that we were concerned with punishment and not with dealing with dangerousness.
  Howard Hughes could not be punished, because, until he abducted Sophie Hook, he had not done anything for a good many years that the courts could pick up on; but he was manifestly dangerous and known to be dangerous, to the extent that, when Sophie's body was found, everybody in the district said, "Well, it's Howard Hughes. It must be him."
  There is an issue that we shall have to leave hanging in the air for the moment, but which we shall have to grasp eventually. If we are indeed of the view that to be a paedophile is to be beyond the pale, if we wish to protect our children, and if we know that paedophilia is a deep-seated instinct—once someone is known to be a paedophile, they are known to be a ticking time bomb—is there not a case, as one of my hon. Friends said earlier,
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  for some kind of finding to be permitted to the courts? It would not necessarily rank as a conviction, but might be equivalent to being bound over to keep the peace, which is not a conviction, but which sometimes operates as a deterrent against the bad behaviour of certain ill-disciplined people.
  Could we not have a finding of being a paedophile, whereby some form of supervision was carried out on people such as Howard Hughes, to the extent that, if the framework of good behaviour set out by that supervision was disobeyed, it would be possible for some form of preventive detention to be imposed? If not, we shall always find ourselves being wise after the event. It sounds tremendous to say that there will be life imprisonment after the second serious offence, but that second offence is predicated on the fact that two innocent youngsters will have to suffer horribly before society nerves itself to take action. We need to think about that.
  That point leads me to the second case that I want to bring forward, without wearying the House—the case of Trevor Holland. He came to the notice of some as recently as last summer, when, having been convicted as a serious paedophile, he was taken to Chessington World of Adventure on a day trip. It was rather like taking an alcoholic to a brewery for a little R and R. Trevor Holland absconded, and there was a great deal of concern about the case.
  It might be worth considering the case of Trevor Holland again. He was convicted of a serious assault against a 12-year-old boy, and he went to prison for a number of years. He would therefore be caught by the Bill, and would have to register his address. However, when Trevor Holland was released from prison, he made threatening telephone calls to the home of his victim, blaming the victim for the fact that he had been in prison and saying that he would go round and sort out the victim and his family. He put those people in fear, but they were then told by the police that they could do nothing until something happened.
  Interestingly, such was the danger posed by Trevor Holland that it was found possible under the mental health Acts to detain him last summer—I hope that he is still detained—not because he was still serving the prison sentence for the offence of which he had been convicted, but because he was regarded as a danger to the public. Somehow, the authorities found a basis on which to confine him under the mental health Acts, but they had to bring into use Acts that were not intended to be used in that way.
  It should not be too long, if we are serious about paedophilia, before a proper court or tribunal is set up to make a finding about paedophile tendencies, and, as a consequence, a form of lifelong supervision is introduced—which could be waived at some point if good behaviour was evident—that would allow society to intervene before rather than after a terrible event. In that way, we could close the stable door before the horse had bolted.
  In a sense, my speech has been a mixed message. Yes, the law will be improved by the Bill, and I hope that this afternoon's spirit of co-operation will prevail through the remaining stages and take it on to the statute book before the election. However, we have taken only a small bite out of the problem, and many terrible cases will continue to happen. We will have to screw our courage to the

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  sticking place and take further, severe action if we are to curb some of the worst cases that have been reported in the newspapers in recent months and have caused us so much dismay.
  5.1 pm
  Mr. Barry Sheerman: It is a pleasure to speak in this debate. I have long supported the calls for the Bill, as have many other right hon. and hon. Members present—the old gang. I was an Opposition spokesman on home affairs for four years. The right hon. and learned Member for Putney (Mr. Mellor) disagreed with me on many issues, but we agreed on one or two, and one of them was the protection of children.
  The Bill is not just about paedophilia. I want to talk about a category of people who will be covered because they are the same kind of wrong-doers as paedophiles. They are evil people who take away childhood and innocence. That is why the House should concentrate carefully on the Bill. I was pleased by both Front Benchers' speeches, because it was made obvious that the Bill can be improved in Committee, even if we have a short Committee stage, perhaps more than any other Bill that I have taken an interest in.
  The Bill covers not just paedophiles who take children's innocence away: it also covers those who entice children into prostitution. When I first entered the House, if we talked about paedophiles, people did not want to know. It was an unpopular subject and people thought that there were just one or two crazed individuals who might be interested in that kind of perversion. I pay tribute to the former hon. Member—now, sadly, deceased—Geoffrey Dickens, who represented Huddersfield, West when I represented Huddersfield, East. He introduced the subject to the House and made much headway in bringing the subject to our attention. I remember when he first spoke in the House; people were not interested, or found the subject amusing, but we have learnt more about paedophiles and their ghastly interests over the years and now we have the Bill.
  Many people think that they would have to take a trip to Bangkok to find out about child prostitution. We know the figures for child prostitutes—between 200,000 and 800,000—in Asia, but child prostitution is also rife in this country. There are child prostitutes down the road from the Palace of Westminster, and child prostitutes are available in most towns and cities in the country. Investigation and research into the problem shows that there is a cycle of abuse of young people who run away from home or who are enticed from home and are found on the streets. The problems do not start with young people of 15 and a half, but at 11, 12, and 13—a very young age.
  There are real problems in dealing with child prostitution, and the national register will not be effective unless we do something more positive about the problem of the exploitation of children. That exploitation goes deep and starts very young. Often, a group of men—it is normally men—find young, innocent children, usually girls, who can be seduced into a way of life. Evidence shows that groups of men specialise in enticing young children into a relationship that leads, inevitably, to prostitution. We know those people as pimps—people who live off the immoral earnings of, usually, women.
  I looked at the statistics in preparation for the debate. It is worrying that the number of prosecutions of pimps has declined. Ten years ago, there were 150 successful
  46
  prosecutions for the offence of living off immoral earnings, but that figure declined to about 50 in the last year of record. Even more worrying, 10 years ago there were three recorded successful prosecutions for the offence of enticement of children into prostitution, but in the past 11 years there have been only 16 successful such prosecutions. How does that square with the fact that child prostitution is rife, as any hon. Member will find if he talks to his chief constable?
  The figures are not the police's fault for not prosecuting offenders. The problem, under our law, is that if the police see an under-age child working as a prostitute—on the game, as it is called—their prime responsibility is her welfare. They must take her out of that way of life and put her into a safe place or into care. That is the real problem because successful prosecutions for living off immoral earnings depend on surveillance.
  Mr. Tom Cox: My hon. Friend is making an important point and the south London area that I represent suffers from the problems that he has mentioned. Does he agree that we also have to deal with television companies that give enormous publicity to that way of life, which undoubtedly has a serious effect on many youngsters? It would be helpful if the Minister could tell us what action he intends to take to stem the glorification of child prostitution.
  Mr. Sheerman: While researching this issue, I have watched and listened to all the investigative programmes on television and radio over the past two or three years. I hear what my hon. Friend says, but must disagree with him in one sense. Good television and radio programmes have drawn the subject to the public's attention. Indeed, their attention has been focused on the subject as a result of some very good programmes, especially those on Radio 4, Roger Cook's on Central Television, and others, which have addressed the issue, highlighted it and reminded us all of what is going on. The issue has been addressed not only by television and radio programmes, but by The Children's Society, in its report "The Game's Up", which redefines child prostitution.
  The difficulty of which the House should be aware is that, if we do not tackle the police's problems identifying the people who entice others on to our streets as prostitutes, our poor record of targeting evil pimps, prosecuting them and putting them in prison will continue.
  There is an anomaly in the law, which I hope the Minister will tackle. Why can the offence of living on immoral earnings receive a penalty of as much as seven years in prison, but the maximum penalty for enticing a child into prostitution is two years? What is the logic behind that? I am sure that many hon. Members would agree that the penalty for enticement should be at least the same as—if not greater than—that for living on immoral earnings.
  All of us must focus on some very difficult issues on Second Reading and in Committee. The Bill is not a magic wand. Establishing a register is a very positive step; we must make it as good, comprehensive and sensitive as possible. My hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) and the right hon. and learned Member for Putney put their fingers on it when they said that we must have a fully co-ordinated approach. From asking questions of a range of Ministers, I have formed

  47
  the overall opinion that they are all saying, "It is not really my business, Guv." Such a response is replicated in local authorities, education authorities, social services and the police. There is no co-ordination, either nationally or locally.
  I call on the House to provide the impetus to tackle the issue in a positive and purposeful way over the coming years. We have been ignoring the problem for too long. Now that we are fully aware of the extent of the crime—the young lives of hundreds of children are being ruined; their childhoods are being taken away by evil people—we must address it and its causes. I wish the Bill good speed and hope that it tackles the broader issues as well as the specific issues concerning the register.
  5.12 pm
  Sir Wyn Roberts: The Bill and the debate sharply illustrate the extreme seriousness with which we all view the offences to which the Bill refers. The debate reflects our awareness of the public's strong feelings of justifiable outrage when such offences are committed against innocent children, young people and even very elderly people.
  I had personal experience of such public reaction when a little girl, Sophie Hook, to whom my right hon. and learned Friend the Member for Putney (Mr. Mellor) has already referred, was snatched from a garden tent at night while on holiday with relatives in Llandudno in my constituency and brutally murdered by a local paedophile, Howard Hughes, who had been known to the police for some years. Although there was a history of complaints about this man's behaviour, the only previous conviction secured against him was for common assault on a boy in the early 1980s. Had the Bill been in force at that time, it is doubtful whether Hughes would have had to give notification under it. That fact—and that case—have rather dominated my view of the Bill. I know that it is very dangerous to draw general principles from particular cases, so I shall put forward suggestions.
  I am told that paedophiles tend to amass a great deal of material relating to their obsession. Hughes was no exception. Perhaps we should try to create an offence of possessing such material in certain well-defined circumstances, which would lead to notification under the Bill. I was very glad to hear my right hon. Friend the Minister say that he intends to table an amendment in Committee to deal with the importation of paedophile material, but I doubt whether, with the best will in the world, that would cover the fact of possession if imported, and possibly non-imported, material is found in an individual's possession.
  Mr. Maclean: I think that I can help my right hon. Friend. We have already included a provision that requires those who have been convicted of possessing indecent photographs of children, or of taking, showing or possessing such photographs with a view to distributing them, to register. The Bill does not cover only importation. We are now plugging that loophole.
  Sir Wyn Roberts: I am very glad to have my right hon. Friend's assurance. I do not want to discourage him in any way, but he will be aware that the sort of material
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  that appears to excite the imaginations of paedophiles is very extensive, and even extends to court records. I therefore hope that he will refine his requirements in the amendment.
  It concerns me that the Bill deals only with convicted offenders. I think that my right hon. and learned Friend the Member for Putney was concerned about that too. We know that, although there is a history of complaints about many paedophiles, the complaints have not been pursued due to the reluctance of parents and children to become involved in court proceedings—all of which is perfectly understandable. Surely there should be some investigative service, possibly under the national health service or social services, which considers complaints about which the police and other organisations are aware but can do little about.
  We know that, once established as a personality trait, paedophilia tends to persist and may—obviously—cause concern to the paedophile's relatives and friends. They might be glad to unburden themselves in response to sympathetic inquiries. In the event of a positive outcome to such an inquiry, therefore, at least the authorities and everyone else would be aware of the tendencies inherent in an individual.
  Mrs. Golding: Does the right hon. Gentleman think that the full implementation of Judge Pigot's report would be helpful in such cases?
  Sir Wyn Roberts: I dare say that it would. I am basing my remarks on my experience of a particular case in my constituency, but I am sure that the matter is covered in the Pigot report. Nevertheless, and as I am sure the hon. Lady will understand, it is a difficult area.
  The issue on which we are all being pressed is the use that the police will make of the information resulting from notification. I am bound to say to my right hon. Friend the Minister that I had expected to see that spelt out in the Bill and I am disappointed that it is not. However, there is no doubt that the police will find the information helpful, especially in implementing the various child protection strategies to which schools, the probation service and other organisations contribute.
  In respect of the dissemination of the information, we are all aware that antipathetic feelings towards paedophiles run high. It is difficult to believe that the diffusion of knowledge about their location—as practised by the police in Washington state, for example—would not result in unhelpful public houndings of convicted paedophiles from one locality to another, thus discouraging notification to the point where the purpose was defeated. Dissemination of knowledge of convicted paedophiles' whereabouts and physical appearance through distribution of photographs and so on should, therefore, be confined to those with a need to know—for example, head teachers of schools where persons with an unhealthy and obsessive interest in children are pestering pupils, or child care employers who are suspicious of persons whom they are thinking of engaging.
  Mr. Brazier: As one who has recently visited Washington state and spoken to the Seattle district attorney—I have even been out on patrol with the Seattle police—may I put it to my right hon. Friend that one merit that Washington state possesses, unlike its near namesake,

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  Washington DC, is a rapidly falling crime rate? I believe that Washington state has had the second or third largest fall in crime in America. Perhaps there is something to be said for looking at the methods used there.
  Sir Wyn Roberts: I certainly agree that we should look at those methods, which were shown on the television programme to which my right hon. and learned Friend the Member for Putney referred. My personal opinion, however, is that it would not be wise in this country to disseminate photographs to neighbours of paedophiles as was done in Washington state. I have a feeling that the result would be more crimes, not fewer.
  I am aware of the controversial and sensitive nature of the proposals in the Bill. Notification must not become an additional punishment; it must be a preventive measure. The police must be careful when using the information that they gain as a result of the Bill. I agree with the hon. Member for Cardiff, South and Penarth (Mr. Michael) that some guidelines for the police might be welcome.
  The question has been asked: why pick on sexual offenders, rather than some other group of criminals who might be more likely to reoffend? The answer lies in the particular horror and revulsion felt by the public when the defenceless are attacked and in the extreme terror that sexual offenders can strike in communities.
  We all believe that the police are well informed about convicted offenders in our midst, but that is not invariably the case. I am frequently surprised by their lack of knowledge about offenders who find their way back into the community from prison or psychiatric hospitals. That is an area of police information that should be subjected to closer examination and scrutiny. I am especially concerned about the actions of some of our mental health tribunals, which give little warning, and consult very little with the police before releasing individuals into the community.
  5.24 pm
  Mr. Peter Thurnham: I welcome the Government's action in introducing this important Bill. It would have been a mistake to have left it as a private Member's Bill; the public's concern is massive and the Government were right to make it a Government Bill. In some respects, however, they have been timid—not a word that I often associate with the Minister—and I am glad to hear that some amendments are proposed, such as an increase in the penalty for non-notification. I urge the Government to go further; the Bill represents only half a loaf and we should attempt to explore in Committee whether we can make it more effective.
  The public need to know that there is an overall register containing all the information that is needed. The danger is that the Bill will lead only to one more list being prepared—one that will not be the comprehensive list that is needed. From the Minister's recent answer to me, I gather that we already have six national lists: the police national computer list, the national identification service list, the National Criminal Intelligence Service list, Scotland Yard's national paedophile index list, list 99 of the Department for Education and Employment, and the Department of Health consultancy index list—not to mention the other lists held by local police stations.
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  Local authorities are in a confusing position because of guidance issued by the Government telling them that they should not keep lists, despite the fact that they have a legal obligation to use the information that they have. Finally, lists are also held by voluntary bodies such as the Scout Association and the National Society for the Prevention of Cruelty to Children.
  What is the register to be? Is it to be only the seventh list, or is to be the overall list that is needed and that the public want? If it fails in that respect, there will be a deep sense of disappointment. I know from my discussions with the Greater Manchester Police Federation that its members were disappointed to learn that the list would not be fully retrospective: to be useful to the police, it must be retrospective. Even if the register established under the Bill cannot be retrospective, as the Minister explained, there must be an overall list containing all the information available, including details of suspects. All the evidence shows that, if the list is to be effective, there must be close co-operation between all those who are concerned with the problem.
  The whole question of who should and should not be on the list has already been discussed. The Childrens Charities Consortium made an important point when it said that the list should not include those cases where there had been victimless, adult consensual acts, because that would add unnecessary names to the list.
  I hope that the requirements for Scotland will be fully in line with those for the rest of the country. We need global information, but without common information covering Great Britain, it will be difficult to get common information covering the rest of the world. I am appalled to hear that individuals who are known to have been convicted for serious sexual offences abroad will not be on the register here. I agree with the hon. Member for Swansea, East (Mr. Anderson) that it is absurd that such offenders should be omitted.
  People who are known to have been convicted of one of these serious offences and are known to the police should be notified that they must inform the police of changes of address. In that way, we can make the register more useful more quickly than if we leave matters as they are; otherwise, it will be decades before sensible action can be taken.
  Suspects must be included on the list where the information on them is sufficiently serious. The National Association for the Development of Work with Sex Offenders says:
  "There is an urgent need to address the issue of known sex offenders who are not convicted. There should be clear guidance about the management of information in such cases."
  According to the Childrens Charities Consortium,
  "the majority of children are abused by unconvicted offenders, and in the minority of cases where prosecution follows the disclosure of abuse, the rate of conviction remains disturbingly low."
  Research shows that, on average, before a child sex abuser is caught, he or she will have attempted or committed more than 200 offences.
  How can we leave strong evidence of abuse off the register? If a local authority requires a man to move out of a house because he has been found to be abusing the children, and if he complies with that requirement, there may not be a conviction but surely his name should be on the register with those of people who have been convicted; we know that in many cases it is difficult to secure a successful conviction.

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  In 1994, the latest year for which we have figures, there were 54,000 protection referrals for child sex abuse, which led to fewer than 500 convictions: fewer than one in 100 were convicted. The information that is available to social services must be included on an overall register if the register is to have value.
  It is ridiculous that the names of children at risk of sexual abuse are placed on a register but the names of people who have committed the crime are not. It is the only crime where the victim's name is placed on the register but the perpetrator's name is not. I ask the Government to give more thought to creating an overall list that includes such information. I understand that the National Criminal Intelligence Service already maintains a database of about 4,500 suspected paedophiles, so the Government already keep some of this information. We all expect the Government to try to maintain more of it.
  I said earlier that the courts established in R. v. Devon County Council ex parte L that social services have a duty to maintain surveillance of suspected child abusers, even if they are unconvicted. There is, therefore, a clear duty on the Government to maintain the best possible information systems and to assemble an overall list that will pull all that information together.
  As the hon. Member for Cardiff, South and Penarth (Mr. Michael) said, we need clear guidance on who should have access to the information in the register. There is nothing explicit in the Bill about access to the register. Matthew Parris said on Friday that the principle of public notification is unsound. I urge caution in the way in which the information is used. I would be satisfied to leave it to a chief constable to decide how it should be used and to notify people when he thinks it necessary, but the Bill should say clearly how that guidance should be issued.
  I am pleased that the Government accept the need for a higher penalty. One month was obviously inadequate and would have led to paedophiles risking discovery rather than coming forward, as they should. I hope that offences abroad will be counted as offences for the purposes of the Bill. If not, there will be a temptation for paedophiles to commit their offences abroad.
  The right hon. and learned Member for Putney (Mr. Mellor) said that he thought it was impossible to treat offenders, but I draw his attention and that of other hon. Members to the very good work done by the Faithfull Foundation at Wolvercote. Its residential treatment centre has achieved high success rates but, sadly, it faces closure because the Department of Health, which owns the property, apparently intends to sell it shortly. In the light of that success, I urge the Government to ensure that there is at least one residential treatment centre in every region. It is appalling that the Government have no plans to secure the future of the Faithfull Foundation treatment centre or to establish treatment centres elsewhere.
  I look forward to an active Committee stage, during which amendments may be introduced to strengthen the Bill and ensure that it becomes the type of Bill that the public want. If the names and addresses of previous offenders are known to the police at present, surely it is no problem for the police to notify them that they must inform the police of any future move. That would not impose a great burden on the police, and it would help to assemble the necessary information.
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  It is perfectly possible to strengthen the Bill's ability to deal with people with previous convictions and where there is strong evidence of abuse although there may not have been a conviction.
  I look forward to the Committee stage and hope that the Government will give full attention to the need to develop treatment centres and assessment centres.
  Mr. Maclean: I have heard the main thrust of the hon. Gentleman's plea that we should impose a requirement on people who do not know that they have been convicted, because they have not been convicted, to register with the police and that they should be liable to six months' imprisonment if they do not do so. How would he justify to the House, to the country and to his new party a sentence of six months on people who failed to register when they did not know that they had to do so because they had never been charged with or convicted of any offence?
  Mr. Thurnham: If the Minister had been listening, he would have heard me say that, when the person's name and address is already known it will be possible to notify him of the need to inform the police of any move that he might make, and if there is sufficient evidence against him the conviction could be secured on the basis of existing evidence. It is perfectly possible to bring a prosecution if it is thought that that would be in the public interest.
  I agree with the thrust of some of the remarks made by the right hon. and learned Member for Putney that, in effect, an indeterminate sentence is needed. Why release a person if it is known that he poses a risk to the public? If he is known to pose a risk to the public, there should be a full assessment before sentence is passed. There should be treatment during the period of sentence and no release without an assessment that the risk to the public was at a minimum.
  At present, people can be released when they are known to pose a risk to the public and it is then necessary to wait for them to reoffend before they are reconvicted. I urge the Government to consider more closely the need for a full assessment before sentence is passed, so that indeterminate sentences can be imposed on people who continue to pose a risk to the public. The Government should propose much stronger measures.
  5.36 pm
  Mr. Michael Alison: I join the hon. Member for Bolton, North-East (Mr. Thurnham) and many other hon. Members in applauding the introduction of the Bill, especially part II, and I wish to say a word of congratulation to my right hon. Friend the Minister of State, who has involved himself in this subject exhaustively over a long period.
  My right hon. Friend the Minister of State reminds me of one of those great capital ships that one used to see in documentary films about naval encounters, speeding towards the war. There was a period when, some of us thought, the great guns that my right hon. Friend carried tended to face in the wrong direction; but, slowly and deliberately, those massive guns have undergone a switch in trajectory and they have swung right round to focus their powerful charges on this appalling and horrible type of criminal.

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  Not only has my right hon. Friend involved himself deeply in this subject, but I think he will agree that he has received substantial help from outside pressure groups such as the Coalition on Child Prostitution and Tourism, and his proposal gets to grips with the problem. I warmly congratulate him on that and thank him for the part that he has played.
  I should be grateful if my right hon. Friend would give me some further advice when he replies, or on another occasion, or even in Committee. The Coalition on Child Prostitution and Tourism has made a point relating to the exclusion proposed in clause 2(3)(d), which applies to someone who
  "is outside the United Kingdom"—
  while the time requirement of up to 14 days is ticking away. Can the fact that such a person is outside the United Kingdom at the relevant time provide him with an indefinite escape from registration? He might, for instance, decide to stay outside the UK for one of the periods stipulated on page 2 of the Bill—five years. That might enable him never to have to register, because the time for which he has to register would expire before he returned to the United Kingdom. I should be glad of the Minister's guidance on that technical point.
  Another aspect of the Bill slightly worries me, and it was vividly put in interventions by the hon. Members for Swansea, East (Mr. Anderson) and for Liverpool, Mossley Hill (Mr. Alton). My slight misgiving about the Bill is paradoxical. The aim of the Bill is to protect vulnerable children and juveniles in overseas countries and territories. Certainly, part II will indirectly benefit children in this country, but its essential purpose is to help to safeguard poor, vulnerable children or juveniles in overseas countries. I hope that my right hon. Friend will be able to reassure the House that this part of the Bill will not inculcate a tendency or preference on the part of paedophiles for going overseas to commit their crimes.
  A paedophile might go overseas because of the difference between what constitutes a culpable offence in Britain and such an offence in another country. My fear is that paedophiles might concentrate their activities on, say, girls over the age of 14 in some Asian countries; at that age they become marriageable and are allowed, without committing an offence, sexual intercourse. Thus a group of girls who may be protected under our framework of law are not necessarily so protected in other countries: they are therefore more vulnerable.
  Does the Minister share my anxiety, furthermore, about the possibility—this is a double jeopardy—that those guilty of offences against girls outside the narrow age range of 14 to 16, and susceptible to charges under the Bill, might go abroad to commit their crimes, and then hand themselves over to the local jurisdiction if they have the faintest suspicion that their activities have been discovered by, for instance, investigators from a non-government organisation? They might then plea bargain, asking to be prosecuted for the alleged offence, and in exchange for pleading guilty they would demand a sentence of deportation. Many less developed countries try to deport overseas visitors caught in criminal activities as rapidly as possible, because the last thing they want is the image that attaches to countries that prosecute tourists. For them, deportation is a quick and easy way out.
  If such a plea of guilty has been entered and deportation has ensued, does that mean that the case cannot be tried back in the United Kingdom?
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  Is my right hon. Friend certain that we are not introducing any measure that will promote such activities against children in overseas countries—such locations being, from the point of view of those who may be apprehended, the lesser of two evils? I wish to reinforce the point argued by the hon. Members for Bolton, North-East, for Swansea, East and for Mossley Hill. Serious consideration must be given to registration when an offence has been tried abroad and knowledge of that event has reached us.
  Otherwise I warmly endorse everything positive that has been said about this Bill, and I congratulate Ministers on the action that they have taken.
  5.44 pm
  Mrs. Ann Clwyd: Anyone who saw Sue Lloyd-Roberts' excellent film on child prostitution in Sri Lanka, shown about 10 days ago, will have no hesitation in arguing that people convicted of sexual offences in other countries ought to be on the register in this country too. Anyone who saw the film will have seen a Swiss millionaire who has been accused of abusing about 2,500 young people in Sri Lanka and who is currently being tried in that country. It is terrifying to think that he might come to live here without anyone knowing that he had been convicted of sexual abuse in another country. His and many other examples argue strongly in favour of including such people on our register as well, in case they plan to come and live here.
  We tend to speak of our own direct experiences. In my constituency a few months ago, a man was convicted of sexually abusing 18 young children—this in one small village. The man had moved to Cynon Valley from Liverpool, where he had been convicted of sexually abusing under-aged children. He had served his sentence and then moved, presumably because he knew that he would be anonymous in Cynon Valley. Like many paedophiles, he was very clever. He was married with two children. He kept horses, and had a bouncy castle in his back garden. He had a great many things that attracted young children to his house. Indeed, he offered to baby-sit, so parents in the area thought he was a nice man—he seemed kind to children. He was also a taxi driver.
  It was almost by chance that the man was eventually caught out. The parents of the children concerned are extremely upset and angry because they believe that he has been given a relatively short prison sentence. I do not want this evening to discuss the length of prison sentences. Suffice it to say that if parents in my area had been aware of the man's conviction of serious sexual offences elsewhere, they would have been on their guard and would have protected their children.
  That is why I believe that the register must be retrospective if it is to have any worth. I know that several right hon. and hon. Members feel the same. Many of these people continue to pose a serious risk to the public, and will do so for many years to come. Some repeat sex offenders are known to have been given short probation and community service orders or short custodial sentences even though they have previously served longer sentences. I therefore ask the Minister to think again. There are all too many examples to show that, had there been a retrospective register of this kind in the past, many people would have been enabled to protect vulnerable children.

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  There is another case in my constituency where several local business men have been accused of sexual offences against under-age children. That is proceeding, so I shall say nothing about it, except that as we roll over the stones, the ghastly picture of what is happening in our society emerges.
  When I heard the right hon. Member for Conwy (Sir W. Roberts)—the former Minister at the Welsh Office—speaking about his concerns, I wondered why the Welsh Office had not sent inspectors to examine a problem that had been evident in north Wales for many years and about which plenty of evidence had been given to the Welsh Office. Where was that inspectorate?
  What happens when the state is responsible for the protection of young children? It must be the most awful thing of all, when children are taken away from homes where they have been physically or sexually abused, put in the care of the state and find that things are worse than they were at home, and when the state allows abuse to go on against those children. As we know, a tribunal is meeting in north Wales. Some of my constituents are involved in it and will give evidence there, and some will choose not to do so, because they find the experience so painful.
  For many years children who were in the protection of the state were continually sexually abused by those who were supposed to care for them. Unless the register is retrospective, it will not identify people who have previous convictions and who are still in positions of responsibility, working with children.
  Someone who is in charge of an organisation that trains young people telephoned me in July and said that he was concerned that when he was taking on new staff and asked the police for information because he had doubts about certain members of his staff, the information was withheld from him. It is essential that such information is given to those who are responsible for employing staff who will come into contact with young people.
  Do the Government intend to give direction—not just guidelines—to chief constables on the policing of known sex offenders, and the disclosure of information to child welfare protection agencies, housing agencies, prospective employers and the general public? Without such direction, it is arguable whether police forces will be any more effective than they are at present in preventing further offending, bearing in mind the fact that they already have at their disposal information through the National Association for the Care and Resettlement of Offenders and existing police intelligence reporting. Indeed, police forces nationally, as the Minister well knows, complain that limited resources impede their ability to reduce crime. The added task of collating information, with no direction on its usage, becomes increasingly questionable.
  With such limited sanctions as fines not exceeding scale 3 and/or imprisonment, with the maximum term not exceeding one month, the Bill should not be viewed as a deterrent to serial sex offenders who we know are skilled in concealing their identity and whereabouts. At best it may serve as a further deterrent to lesser-risk convicted offenders—those who have committed opportune offences where the process of detection and conviction has already reduced the likelihood of recidivism. The Bill would give the police considerable power over lesser-risk
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  sex offenders, but with regard to serial paedophiles, part I is unlikely to deter their activities and therefore to protect children or other vulnerable sections of the public.
  The Bill does nothing to alter the rate of prosecution for those alleged to have committed sex offences. For example, the number of prosecutions resulting from a major police inquiry into child abuse in north Wales was minimal, considering the number of complaints made. If Parliament wants to address more effectively the prevention of sex offending, it should consider measures intended to distinguish between different types of offenders, enforcing treatment where appropriate, and measures to protect the public when that is deemed necessary.
  The Bill will not help to deal with the problem that only a small number of sex offenders are caught, and that most are free and will not be affected by the Bill. We are only beginning to uncover the problem in the United Kingdom. The young people whom I interviewed, who are now in their thirties, were sexually abused while in state care when they were aged 14. Such abuse at that age has destroyed their lives. I have five of those young people in my constituency. All have served prison sentences.
  It is extremely moving to hear those young people talking about their experiences. I am surprised that they can talk about them at all, but they find it easier to talk to women. When they speak about their experiences, they say the same thing over and over again: they are not after compensation. I must refute recent claims that those who now give witness to what happened to them when they were teenagers are after compensation. The majority want to know why it was done to them, why it took so long for the abuse to be uncovered and why no one ever said to them, "I'm sorry."
  5.56 pm
  Mr. Julian Brazier: That was a moving speech from the hon. Member for Cynon Valley (Mrs. Clwyd). I strongly welcome the Bill. I support the measures in part II which allow the prosecution in the United Kingdom of British citizens who go abroad to abuse small children in foreign countries.
  I was present for the first Adjournment debate in the small hours of the night four years ago, when we discussed the matter, and I was privileged to serve on the private Member's Bill last year and to support pleas from my right hon. Friend the Member for Selby (Mr. Alison) and others for a more far-reaching measure to be introduced. I am delighted that my hon. Friend the Minister of State, who took so much trouble to listen to our arguments then, has introduced such a measure in part II of the Bill.
  None the less, as time is short and many hon. Members want to speak, I shall focus on part I. Earlier speakers have dealt with individual details of the Bill. Instead, I shall focus on the only strong argument that has been put forward against the Bill—the argument advanced in an article by Matthew Parris, which has been alluded to several times. It is important that the article is answered strongly, for two reasons: first, because of Norman Tebbit's famous dictum that the worst legislation that goes through Parliament is usually the legislation that everyone in the House agrees with and which is therefore not properly scrutinised—not the case with this Bill, but

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  there is some truth in the observation—and secondly, because if the argument is not properly answered in this place, we may have difficulties in another place, and as we are so close to an election, the Bill is particularly vulnerable.
  Mr. Parris claimed that "the central principle" of the Bill is
  "that a great swathe of offenders who have served their sentences and returned—disgraced at the workplace, disgraced with landlords, disgraced among their families and their friends, and almost certainly unemployed—to try to begin their lives again, should now be bound to the 20th-century equivalent of the leper's bell. This"—
  he says—
  "is primitive nonsense. Will nobody say so?"
  His views may well by echoed by the legal establishment—for example, let us look at the way in which it has resisted many of Mr. Pigot's recommendations. Curiously, Mr. Parris outlines the skeleton of the opposing argument in a subsequent paragraph. He says:
  "Apologists for the Home Secretary will object that although sex offenders are victims, they create victims of their own."
  Most people would not accept that sex offenders are victims, although they certainly create victims. He continues:
  "Are these not our first concern? There is a clear answer to this. If we judge a person so dangerous that his neighbours must be warned about him, he should not be allowed back into the community."
  Many people would say, "Amen to that." The danger to which Mr. Parris refers can be measured in two ways: the nature of the danger and its numerical extent.
  First, many hon. Members have pointed to the horrendous primary damage caused by the sexual abuse of children, but two secondary forms of damage have scarcely been mentioned. The first is the fact that the increased number of AIDS cases in this country heightens the risk of children catching serious sexually transmitted diseases that may affect their health for the rest of their lives. In AIDS cases, they are likely to result in death.
  The second form of secondary abuse to which the hon. Member for Newcastle-under-Lyme (Mrs. Golding) referred—I pay tribute to her tireless pursuit of this cause—is the abuse that continues in the criminal justice system after the primary offence. In seven or eight speeches and ten-minute Bills in this place, I have referred to cases of untrained or unvigilant judges allowing lawyers to abuse grossly their powers in court. I have described the way in which children are sometimes treated in court. A whole range of organisations point to the secondary abuse of children in court that may continue for a year or a year and a half after the original offence.
  Children are deliberately tormented again and again by being forced to wait hours—sometimes days—before they take the witness stand. Children as young as 11 or 12 are sneered at and often face allegations that they encouraged their attackers. That kind of treatment, which goes far beyond the bounds of normal cross-examination, can make the original abuse much worse. That is why, even when there is an overwhelming case against a sex offender, the police, the Crown Prosecution Service and social services feel compelled—even before the parents intervene—to abandon proceedings.
  That brings me to the second danger: the numerical incidence of sex offences. According to the overwhelming body of academic evidence, only rarely does a convicted
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  paedophile cease offending. The hon. Member for Bolton, North-East (Mr. Thurnham) called for more treatment for sex offenders. The problem is that I have seen no academic work—I have examined a number of studies—that shows that a course of treatment for paedophiles has had anything more than the most modest success rate. The danger of re-offending is numerically very high.
  Mr. Thurnham: I refer the hon. Gentleman to the work of the Faithful Foundation. It has produced evidence—which others have accepted—of a substantial reduction in sex offences of 60 per cent. or more.
  Mr. Brazier: I shall look at that study. The evidence points to a large number of repeat offences, and the danger is both grave and frequent.
  My answer to Mr. Parris's article and to those outside Parliament who will continue to claim that the measures in the Bill are too draconian—when many hon. Members believe that they should go much further—is that, when dealing with threats to children, the tiny proportion of offenders who are caught and convicted deserve to be placed on an offenders register. I believe that that register should be made publicly available because parents have a right to know when a convicted paedophile moves into their area. The rights of children—the most vulnerable group in our society—must come before those of convicted criminals.
  The most important single service that the House can perform for the victims of sexual offences is to pass the legislation before the election. Therefore, I would not move any troublesome amendments if I were selected to serve on the Committee to consider the Bill. Let us pass the legislation quickly and put the provisions on the statute book.
  6.4 pm
  Mr. Andrew F. Bennett: I shall try to be brief. I am concerned that, although hon. Members appear to be enthusiastic about the legislation, they are not granting it the means of success. Page ii of the explanatory and financial memorandum states:
  "There will not be any significant financial burden on public expenditure arising from the Bill. Any additional costs will be met from within existing resources."
  We are kidding the nation if we try to claim that we will resolve the situation by changing the law without providing extra resources.
  As to part II of the Bill, I believe that we should do everything we can to halt sexual tourism. However, I do not believe that we will achieve that simply by changing the law. The only way to stop sexual tourism is by changing the law and ensuring that we secure a series of high profile prosecutions. We must make it absolutely clear that a civilised society will not tolerate such behaviour. That will cost money, so we should not pass legislation unless we are prepared to make the necessary finances available. I add the caveat that we must be aware that the provision may encourage entrapment and blackmail in some cases. I believe that the change is worth while, but that we must find the money to pay for it.
  I have many more reservations about part I of the Bill. How useful would a register be? The evidence from the United States suggests that such a register does not work. The Government tell my constituents that they will have

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  to pay for the register, which will result in fewer resources for the police. There will be fewer policemen on the beat—despite the calls for an increased police presence on our streets at every meeting that I attend in my constituency. Fewer resources will be allocated to pursuing breaches of probation—a low-priority activity for the police—to witness protection and so on. The Minister has said that there will be no extra resources. Therefore, the police must reduce their efforts in other areas and relinquish some of their resources in order to make the register work.
  Mr. Maclean: I am grateful to the hon. Gentleman for giving way—although it makes it more difficult for me to say that he is talking nonsense in his latter point. The expensive resources are there: the updates to the police national computer system and to the police national database, which links every police force in the country with digital communications equipment to each other and to the PNC, are the essential resource. The only extra work for the police will involve transmitting the new information to the PNC when a person turns up at a police station and provides his name and address. We have already allocated the resources required.
  Mr. Bennett: I am not convinced that the resources are available, but I want to develop the argument. It will take police time to process new information, and people will turn up at police stations only if the police take action against those who do not bother to show. That involves enforcement. A voluntary register will not work: the register will work only if it is enforced, and that will involve extra resources.
  What is the purpose of the register? If it is merely to show that Big Brother is watching, there is some point to it. However, there is an implication that it will go further and identify suitable and unsuitable residential areas. What will happen if someone who has been convicted of offences against young children registers, giving an address that is adjacent to a children's playground or day nursery? Do the Government expect the police to do nothing about that? If they do nothing and there is an incident involving that person, there will be a public outcry.
  The police will have limited powers and some of the convicted will still be subject to various forms of supervision. It would be possible for the police to say, "That is not a suitable place. What should we do?" If registration merely means providing a name and a place and nothing more, there will be many unhappy people in our communities.
  When registration takes place, confidentiality ensues. There is a danger that information will get out, as it were, and that people in local communities will take action. Where will registration take place? My hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) took up the issue. I am concerned about people who do not have a regular home. The phrase in the Bill, which is pretty vague, is "regularly visits".
  I am conscious of problems in my constituency. Men who are registered and live in bed-sits in my constituency sometimes spend little time at those addresses and most of their time in someone else's household. They often
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  mislead the person in the other household about their past record. They are often a serious threat to the young children in that other household. Registration will relate to the bed-sit where occasionally such people will be found rather than the address where they are living fairly permanently. The Government must take that on board.
  It seems that we are changing the nature of cautions. Originally, someone was given a caution if he committed an offence that was out of character and one that he was unlikely to recommit. If that is the nature of a caution, paedophiles should not be entered on a register. If the nature of a caution is being changed to include people who are likely to recommit an offence, they should not be cautioned. Surely they should be prosecuted. That is unless a deal has been made, stitched up by the police and the individual, on the basis that he would not like the nasty publicity of going to court and, perhaps, pleading guilty. That is an unsatisfactory use of a caution and something that we should examine.
  My main message to the House is that it is extremely dangerous to enact legislation unless we are prepared to find money to make it work.
  6.11 pm
  Mr. Andrew Robathan: I find myself in the sad position of raising a slightly dissenting voice. I wish to sound a note of caution on the registering of sex offenders. I wrote to my right hon. and learned Friend the Home Secretary about the matter in early November 1996. I set out my concerns, which were reinforced in an article in The Times on Friday.
  I am concerned with justice and the freedom of the individual. I believe that all men must be capable of redemption. I find it strange, however, to hear myself arguing for more civil liberties. It is not normally a position in which I find myself.
  I would never describe myself as a liberal. God forbid. Nor am I a lawyer. I was unhappy about the Rehabilitation of Offenders Act 1974. Employers and others should be able to ascertain the background of those whom they wish to employ. Indeed, a year or two ago, I was entirely opposed to the reduction of the age of consent for homosexuals. Matthew Parris and I might part company on that one. I believe that the state should not send such a message to young people who may be confused about their sexuality.
  I voted for hanging. I would most certainly hang paedophiles who kill children such as Hughes, who was mentioned in the Sophie Hook case. I might vote for corporal punishment. I might vote also for chemical castration, which I believe is practised in some parts of the United States. I do not know a great deal about it. A register for sexual offenders gives me cause for concern, however, on the ground of justice.
  There is a revulsion for some sex crimes. A man who exposes himself in a park commits a sex crime, but that is no more revolting than a mugger who beats up an old lady and leaves her for dead, or someone who sells drugs to children. Indeed, children who are on drugs are often tempted to engage in prostitution. Organised drug syndicates and their bullies commit awful crimes. The same can be said of muggers who use knives or other forms of gratuitous violence. I have a revulsion for all violent crime, including sex crimes against children and others.

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  We are faced with a huge paradox. Over the past 40 years, we have seen much more sexual licence. Sexual activity used to be confined largely to marriage. Sexual activity outside marriage did not meet with approval. The breakdown of the family that we have seen over the past 40 years has led to many more children being brought up in children's homes. We often see child abuse in step-families.
  Since the early 1960s, we have encouraged everyone, including children, to consider casual sex as almost an ordinary part of life. At the same time, homosexuality has been given almost official sanction. About two years ago, we came close to reducing the age of consent to 16 years. Labour Members who voted for that reduction in the age of consent should understand that if a man has consensual sex with a boy of 15 or perhaps 17—my right hon. Friend the Minister might correct me—that act will be punishable within the terms of the sexual offenders register, for at least five years. That is my understanding.
  The Sun, which passes for a newspaper, titillates its readers with pictures of girls aged 16 wearing school socks. I have never bought The Sun, but I have read it. It contains captions such as, "Look at little Tracy in her school uniform. I would like to teach her a thing or two." What passes for an editorial is called "The Sun Says". In contrived outrage, this so-called editorial states that The Sun would like sex offenders to be hanged, drawn and quartered, and castrated for good measure. Those who have read "Howard's End" will know "only connect", meaning that we will see the connection even if it kills us. Some guilt lies there, and those who shout loudest often wish to shift the guilt on to others.
  I should like my right hon. Friend the Minister to discuss reoffending rates. I understand from Home Office figures that sexual offenders have a reoffending rate, or reconviction rate, which is different, of only 16 per cent., compared with a reoffending rate of 17 per cent. for burglary. I do not pretend to be an authority on paedophilia and I have learnt much about the subject during the debate. I am interested, however, when others say, "These people are paedophiles and these people are not." I suspect that the issue is more complicated than that.
  My right hon. Friend described paedophiles as clever and manipulative. Surely cleverness and the ability to manipulate are skills that are not linked to paedophiles alone. I am aware, of course, that there are some vile individuals. I would lock them up until they were no longer a threat to anyone. Myra Hindley has been mentioned during the debate. She and her friend, Brady, should have been hanged back in 1966.
  I fear that a sexual offenders register may catch pathetic old men who have flashed in the park. One of my constituents is ostracised in his village. As I understand it, he has never been convicted of anything. He says, however, that a former police officer accused him of something unmentionable. Bricks are thrown through my constituent's windows. I do not know whether he is a dirty old man. Similarly, I do not know what he has done in the past. Perhaps he should be treated with caution, but surely the House should be prepared to treat him and others with some pity. As I said, he accuses a former police officer of having spread information about him that has led to hostility.
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  I remember the death of my hon. Friend Stephen Milligan, who represented Eastleigh. The press reports of the time stated that each Metropolitan police station had a police officer in the pay of newspapers. I do not know whether that is true, but I am aware that the police are not renowned for being entirely secure with their information.
  Matthew Parris's article about a "baying mob" at Garrets Green in Birmingham described a man who was forced to flee. Yesterday, I asked a colleague why he would want to know that a convicted sex offender had moved in next to him. He replied, "I would want to get him out." Surely that only moves the problem along.
  We must, of course, protect children from vile paedophiles, vile pornography and other evil things. Let us have a central computer, so that we might ensure that convicted paedophiles cannot get jobs with children. Let us keep an eye on them. I fear, however, that the Bill is akin to branding them on the forehead. In effect, the Bill states that prison cannot rehabilitate, that there is no cure and that there is no chance of rehabilitation. I cannot accept that. I was taught that when a person has been punished and the punishment is finished, he has paid his debt to society and the slate should be wiped clean. That is not to say that we should forget everything, but we should keep that in mind. I expect that I shall be pilloried in tomorrow's tabloids—the comics that pass as newspapers: the same ones that have such a prurient interest in our sex lives and the sex lives of everyone else.
  My son is seven weeks old. If anyone should harm him, I, like any parent, would want to harm that person. Of course, we must protect children, but there must also be justice, and I do not think that this measure will prevent children from being harmed. The register may lead to mob rule. Under the Bill, for having sex with a girl aged 15 years and 364 days—an offence that may be worth a caution—a boy aged 20 years and one day will be placed on the sex offenders register and will have to report to the police for five years. Will the police differentiate between him and others on the register, or will he be merely an offender? Will not people who find out think that he is an offender and a threat to their children?
  Do hon. Members remember Mr. Diggle, the rapist in a kilt? He was the rather pathetic man who committed rape after a highland ball in London. As a rapist, he will go on the sexual offenders register. That is fine, but do we really think that he will reoffend? The case caused hoots of laughter: it was a sad, pathetic case, particularly for the woman. He will be on the sexual offenders register for an indefinite period, and I am not sure that that is just.
  I doubt whether the measure will serve justice well. Criminals who have finished their sentence also have rights. Above all else, we should protect the innocent, but I hope that my right hon. Friend will consider very carefully how the measure will work in practice, and whether its effects will be just.
  6.21 pm
  Mr. John Hutton: Like other hon. Members who have spoken in the debate, I intend to be brief. Unlike the hon. Member for Blaby (Mr. Robathan), I do not follow his line of argument. My hon. Friends and I broadly welcome the Bill, and we welcome the Government's change of heart about introducing it in Government time.
  All of us have read about the hideous and appalling crimes that have recently been committed against children. I was horrified by two cases in particular—as

  63
  were my constituents and everyone in the country. The appalling murder of Sophie Hook and the hideous crime committed against Daniel Handley have increased public concern about the activities of paedophiles. The whole country is looking to the House to find ways to increase the protection offered to the public against the criminal activities of sex offenders, and to enable the police to keep a better eye on the movement of such people.
  If the Bill is to be effective, it must be practical. It is reasonable for the Bill to define those who are to be covered by the notification requirements. I think that the hon. Member for Blaby was wrong: the rapist to whom he referred will not be covered by the notification requirements. Extending the retrospective application of the Bill could cause significant practical problems for the police, by imposing difficult burdens on them. I do not think that loading the police with additional administrative burdens will help them to offer greater protection to the public.
  In all these cases, a reasonable line must be drawn between the type of offences that will be on the register and the people who will be covered by the notification requirement. In the context of the observations of my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael), I think that the lines drawn by the Bill are, in broad terms, about right.
  As many hon. Members have said, we must reconcile the requirement to protect our important civil liberties with the need to provide greater protection to the public and to help the police to pursue sex offenders. I accept that it is difficult to draw that line. The Government are right to include in the terms of the Bill persons who have been cautioned for committing certain sexual offences. That is the right balance to strike. If there is a trade-off to be made between protecting the public, helping the police and protecting civil liberties, I am in doubt about where that line should be drawn. It should always be drawn in favour of protecting the innocent, protecting children and helping the police.
  Some of these people have committed foul and hideous crimes against innocent children, such as Sophie Hook, whose family come from my constituency, and Daniel Handley. If it is a choice between protecting the innocent—indeed, the lives of those children—and protecting civil liberties, in my book there is no difficulty about where that line should be drawn.
  I welcome the Government's inclusion of cautions in the Bill. We must operate along the lines of a precautionary principle. If someone is evidencing behaviour that gives rise to serious concern that he may offend against innocent children and others, he should be on the register: we should know where such people are, and the police should know about their movements.
  Many hon. Members have spoken about the need for wider access to the register. The right hon. and learned Member for Putney (Mr. Mellor) drew the House's attention to the need for the Bill to extend access, and for members of the public to be notified of the whereabouts of paedophiles. This is a difficult area, and we must exercise caution and common sense about where we draw the line.
  I have four young children, and many of my constituents have young families. A reasonable question that we could all ask ourselves is: would we want to know
  64
  that we were living next door or in close proximity to a person who had been convicted of a serious sex offence against a child? If we were honest with ourselves, our answer would be, "Yes, of course we would want to know that."
  I am not saying that the Bill is defective because it does not extend the principle of public access—we shall return to that issue in Committee. Have the Government considered widening public access not to every offence included in schedule 1, but to certain offences in that schedule? We must be careful, but in the case of sex offenders, particularly those who have committed sex offences against children, we should seriously examine our normal concerns about protecting civil liberties.
  I have a number of specific concerns about the Bill, to which I want to draw the House's attention. Clause 2(2) is an example of poor parliamentary drafting. We appreciate that parliamentary drafting is not a precise art: some problems emerge only through litigation in the courts; some problems hit us right between the eyes when we look at the Bill. This is an example of an obvious problem. I know that this is a Committee point, but it is not clear whether the present drafting of the Bill properly covers the case of a known sex offender who changes his or her address during the period after conviction.
  The Bill provides that the person is under a duty to notify the police if there is any change that would falsify the original notification details. What a convoluted provision. What a load of gobbledegook. Why does not the Bill simply provide that a person is required to notify the police if he changes his address? The Bill does not do that: it imposes a duty to notify the police if a subsequent event occurs that may falsify the original entry in the register. I do not understand why the Government have chosen that wording. That is an obvious problem. Some people may argue that they are not required to notify the police, even if they change their address. That would strike at the purpose of the Bill, which is to keep offenders under proper observation.
  The other obvious problem with the Bill is that it refers to the list of offences in schedule 1. Hon. Members have referred to the fact that, as the Bill stands, there is no obligation on a person who comes to live in this country and has committed a sex crime against people abroad to notify the police of his address and details. That is an obvious mistake.
  A more obvious mistake is that the schedule does not include persons who, in this country, have been convicted of a crime under the Sexual Offences (Conspiracy and Incitement) Act 1996. I know that there are problems about how we would define offences in foreign jurisdictions, and make them broadly compatible with the list of offences in schedule 1, but we are talking about offences that a person would commit under that law, which would be dealt with in an English court. Why are they not included in the list? We are discussing people in this country who have conspired with others to commit sex crimes against children abroad. They are paedophiles, however we define that word: they have committed serious sex crimes against children.
  I trust that the Bill will do two things. I believe that it will help the police to monitor sex offenders; I also believe that it will reassure the public that the police are taking such offences seriously, and are developing new information systems to ensure that we know where the

  65
  offenders are. It is a modest Bill, and I do not think that it will stop the commission of offences overnight, but I think that it takes us in broadly the right direction. It should be welcomed by hon. Members on both sides of the House, and I am sure that it will be broadly welcomed by our constituents as well.
  6.30 pm
  Sir Ivan Lawrence: Along with everyone else who has spoken, I welcome the Bill as a substantial step forward in protecting children from the vilest of offenders, who prey on their innocence and ruin their lives.
  I am particularly grateful because, when my right hon. Friend the Member for Selby (Mr. Alison) and the hon. Member for Liverpool, Mossley Hill (Mr. Alton) and I went to see Ministers some two or three years ago, I can only say that we encountered polite interest but were given little hope of immediate action. It is praiseworthy that my right hon. and learned Friend the Home Secretary and the Home Office team did listen and allowed themselves to be persuaded to act, and I thank them.
  We should also compliment my hon. Friend the Member for Hendon, South (Mr. Marshall), whose Sexual Offences (Conspiracy and Incitement) Act 1996 started the track followed by this Bill by giving our courts jurisdiction over the organisers of sexual tourism abroad. The Bill constitutes the next stage of that Act, which was inherently flawed. Clearly, many cases will be brought under this rather than the earlier legislation.
  I welcome the Opposition's support for the Bill, but I think it a little churlish of them to criticise the Government for not leaping on to the Bill proposed by the hon. Member for Rossendale and Darwen (Ms Anderson). We keep talking about speedy Bills that are bad law, and it was plainly sensible for the Government to consult, take soundings and obtain research before producing their White Paper and, subsequently, the Bill. Consensus naturally prevailed, and has produced a good result.
  Our revulsion has been generated by the astonishing number of offences against children. In the United Kingdom, a newspaper headline in December 1996 read: "15 forces hunt child abusers". According to the accompanying report.
  "A third of Britain's police forces are now investigating allegations of abuse in children's homes".
  These are astonishing revelations to most of us, who lead ordinary, decent lives.
  The same applies to offences committed abroad. A recent article in The Criminal Law Review refers to
  "Paedophile murders of children in Belgium",
  which are currently being investigated. It states:
  "In July 1996 Stephen Mitchell, a British sexual tourist, was convicted and imprisoned for 17 years in the Philippines for paedophile acts. In October 1996 a British tour organiser … was sentenced to … 16 years for promoting child prostitution in the Philippines."
  Also in October 1996, a Dutch court jailed a man
  "for having sex with six young girls, some of whom were aged only 11. A senior diplomat … was convicted and imprisoned for the importation of videos depicting sex acts with children."
  The former Australian ambassador to Cambodia is standing trial charged with abusing youths in that country.
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  We are learning horrifying details from the newspapers, and we feel that we must do something. Such crimes transcend international borders, which is why the Council of Europe, UNICEF—the United Nations Children's Fund—and the European Union, in its third pillar manifestations, have all published, or are publishing, views on what must be done. Because activity of this kind is so often international, we must be prepared to deal with it internationally. NCIS, the National Criminal Intelligence Service, is also compiling details of organised criminal gangs that go in for this sickening activity.
  I do not want to confuse parts I and II of the Bill, but, just as there is a case for a sex offenders register for United Kingdom crime, there is obviously a case for including foreign paedophile offenders on our register when that is possible. My right hon. Friend the Minister's response that that is impracticable is roughly the same as the response that we received originally, when we went to see my right hon. and learned Friend the Home Secretary two or three years ago to ask about the kind of legislation that we are now passing.
  The fact is that we must do all we can. Not every paedophile conviction in foreign countries will be notified to us, but a few will, and measures such as this will ensure that that is more likely to happen. We may be able to stop some hideous offenders getting away with it by extending the register to some of those overseas offenders.
  The question that so many of us have been considering during today's interesting debate—a question asked by, in particular, my right hon. and learned Friend the Member for Putney (Mr. Mellor)—is, what more can we do to deal with the horrors of paedophilia? My right hon. and learned Friend suggested action after danger manifested itself, but before conviction. That is a tempting thought, but the trouble is that, in our legal system, a person can be punished only after he has committed a crime and that crime has been proved by evidence. Suspicion and rumour are not enough; nor are failed prosecutions. We cannot punish people without strict proof, or we shall find ourselves punishing the unpopular as well as the innocent.
  Perhaps we should not despair. I am not sure that the gap is all that great between all the provisions that are now being made available and those that we would in our hearts like to see. Some deviants do seek help and submit to treatment; others are caught, tried, convicted and sentenced, and are then treated in one way or another. Under the Crime (Sentences) Bill, they can be subjected to more supervision—in some circumstances, for up to a lifetime.
  Under the same Bill, even those who commit trivial offences, and are therefore cautioned, will appear on the register. Those who are convicted a second time may, thanks to the Government's courageous action—which, even now, is probably being attacked in the other place—be removed from circulation for life, or for as long as it is considered a matter of public safety for them to remain in custody.
  Those who have been convicted once will now be on the register, and some of those who have not yet attacked—stalkers—can perhaps be brought within the ambit of the Protection from Harassment Bill, if a child is the target. Perhaps my right hon. Friend will examine the possibility of extending the register to such offences. Can anything be done about those who are merely suspected? I do not think that we would be realistic if we

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  thought that the local police did not put such people on an unofficial list, and watch them very closely. They watch them as potential offenders waiting to be caught and they ensure that as much attention as local resources will allow is directed there.
  I have professional experience of one such case. A very serious alleged child offender, who was charged with murdering children, was watched and watched and watched and finally caught and convicted. He is now serving a long sentence, so the fact that the names do not appear on the official register does not mean that the local police will not watch anyone against whom suspicion is strong.
  There are other suggestions for strengthening the law. In some states in America, communities are informed when paedophiles move into the district. Should that happen here? My right hon. and learned Friend the Member for Putney asked why ordinary people did not have the right to know what police officers know. The problem is vigilantism: people seeking to take the law into their own hands and getting it wrong. Most of us in the House, however angry we are, might hesitate to encourage that behaviour because the evil could be even greater than that of a possible paedophile who is at large and is being watched.
  It has been suggested that there should be a criminal offence for convicted sex offenders to seek jobs that give them access to children. What has happened to that proposal? Has it been discarded? Has it been discussed with the police and other involved parties? What conclusions have my right hon. Friends come to? It would be better to have that weapon in the armoury than one that incites vigilantism.
  I conclude, as many have concluded, with a hearty welcome for the Bill and with a desire to find out what more can be done in Committee or elsewhere. However, may I end on this slightly different note? Several hon. Gentlemen have said that paedophilia is not susceptible to cure. I doubt that. In Britain, there is evidence, which is growing, that some paedophilia can be cured.
  The hon. Member for Bolton, North-East (Mr. Thurnham) said that a scheme in an area that he knows has been successful, and I have met some of the organisers. We must be prepared to spend some resources on treatment in prison and some on treatment after prison. Treatment must also be a part of our weaponry against this most detestable of all offences, towards the control of which the Bill takes a substantial step.
  6.42 pm
  Mr. Donald Anderson: I follow the hon. and learned Member for Burton (Sir I. Lawrence) in saying, with a lawyer's hat on, that there are problems in relation to the dissemination of the names on the register, access to it and the information that it holds, but I will briefly comment on part I.
  I hope that the Government will, on consideration, ensure that there is some means of including the list of offenders who have been prosecuted abroad. That is clearly a loophole, and inclusion would be a deterrent. Relatively few cases would be brought to the Government's attention by our embassies and by the network of non-governmental organisations. I hope that
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  all addresses where offenders habitually reside will be on that register. I would like the Government to consider carefully access to our register by some outside organisations if, for example, they suspect an individual who operates in his own country. I hope that people who seek to leave the United Kingdom to avoid registration will nevertheless be obliged to register with British embassies overseas and that that will be considered.
  I welcome part II, for the same reasons given by the hon. and learned Member for Burton. Clearly, one must have a consistent and co-ordinated attack on exploitation of children across the board. There must be co-operation among police authorities and an attack on corruption. We must be prepared to assist NGOs in this sector, particularly the consortium of NGOs working on behalf of street children in developing countries.
  I was therefore particularly unhappy with the Government's response on 14 January to my parliamentary question. They claimed that their promise on 27 February 1995 in the Official Report, at column 689, was "an unfortunate error." They admitted that, since February 1995, they had provided only £46,000 to the consortium. I hope that they will reconsider that and provide more adequate means for the NGOs, which are doing a magnificent job overseas.
  6.45 pm
  Ms Ann Coffey: The contributions of hon. Members on both sides of the House demonstrate their loathing and disgust for people who abuse children. The Bill will provide extra protection for children, but, for it to achieve its objectives, underpinning the legislation, there must be a comprehensive package to improve the reporting, detection and conviction of people who sexually abuse children. A widespread criticism of Government machinery is the failure to deliver a coherent and consistent policy across the various Departments. The agencies that are responsible for the protection of children—local authorities, the police, probation and health departments, which have achieved much at local level—must be supported by a coherent policy nationally.
  I would be interested to hear from the Minister what discussion he has had with his colleagues with responsibility for health and education. Both Departments keep lists. The Department for Education and Employment maintains a list of people who are barred from employment by a local education authority, school or further education establishment, as a teacher or in any other capacity that involves contact with children or young people up to the age of 18. The Secretary of State for the Home Department may also bar people on the ground of misconduct or on medical grounds. Anyone convicted after October 1995 of a sexual offence against a child under 16 years is barred automatically. That is list 99. Employers must check that list.
  The Department of Health operates on an advisory basis a consultancy service that applies to England and Wales, whereby local authorities and private and voluntary agencies can check—it is not mandatory—the suitability of people they wish to employ in a child care post. On 26 July 1995, in a letter to my hon. Friend the Member for Darlington (Mr. Milburn), pointing out the differences between list 99 and the Department of Health consultancy service, the Secretary of State for Education and Employment said that the latter was to alert

  69
  employers to people whose applications they should consider with particular care, but that it was up to the prospective employer to decide whether the person was suitable for appointment in each case.
  The difference is clear. If someone commits an offence against a child under the age of 16, he can never teach as long as he remains on the Department for Employment and Education's list 99. However, that same person is not barred from working with children in children's homes, in a foster home or in other settings. As the Minister said, it is a matter for the prospective employer.
  I am sure that no responsible employer would dream of employing such a person, although, in 1995, the social services inspectorate study into small registrable homes discovered criminal convictions among owners of such homes, including a sexual offence. However, that is not the point. The point is that both lists are kept to protect children and should have the same status in terms both of mandatory consultation by employers and of barring employment. If the Secretary of State for Education and Employment can decide that a person is not fit to teach a child, the Department of Health should decide that the person is not fit to have access to children in a caring situation.
  Although agencies' access to information on the national register is not being determined by the Bill, it would make sense if the additional information provided by the register in updating addresses and the use of other names were also available to other Departments that keep lists with the aim of protecting children. The determination of paedophiles to gain access to children must be matched by a determination to stop them. I hope that, in Committee, the Minister will be able to clarify how the national register will operate with those other lists.
  I am interested in the Minister's discussions with his colleagues in the Department of Health, which has major responsibilities for child protection. Under section 47 of the Children Act 1989, local authorities have a duty to investigate allegations of abuse, including sexual abuse. However, there seems to have been a shift in the Department of Health's approach to child protection following the publication of the document entitled "Messages from Research". There is widespread promotion of a lighter touch, and although I can understand that approach in relation to the debate on smacking, I am not sure how it will operate in terms of allegations of sexual abuse, or how a new severity criterion might operate, especially as, alongside that, messages seem to be emanating from the Department of Health about introducing a substantiation criterion.
  The document "Messages from Research" notes that some types of allegation are rarely substantiated and suggests that they might be pursued or dealt with under the "in need" rather than the child protection procedures. The most common form of unsubstantiated allegation is sexual abuse. Perpetrators are fully aware of the difficulty of proving that sexual abuse has taken place. Indeed, some paedophiles target lone women with small children for that very reason.
  Irrespective of the message from the Department of Health, the Children Act continues to place a duty on local authorities to investigate. To enable a lighter touch, there would need to be changes to that Act. I warn the Government against any attempt, arising from an
  70
  ideological war with local authorities, to weaken child protection procedures in the area of sexual abuse. The losers would be children and the gainers would be the abusers.
  What discussions have Home Office Ministers had with colleagues in the Department of Health to ensure departmental consistency? There is little point in a Home Office Bill to increase protection for children if Ministers in another Department undermine the procedures that detect that abuse, enable convictions and protect the public by a national register.
  We welcome the Bill's principles and its aim of giving children better protection from those who would sexually abuse them, but it can be effective only as one of a number of measures. A commitment to the protection of children cannot be judged solely on fine words. In every aspect of government and in every Department there must be effective legislation and procedures.
  6.51 pm
  The Parliamentary Under-Secretary of State for the Home Department (Mr. Timothy Kirkhope): I am pleased that we have had an opportunity to discuss the Bill, and I am encouraged by the commitment of hon. Members in all parts of the House to the need for firm and effective action to tackle the scourge of sex offending, particularly that involving children.
  Those who spoke in the debate included my right hon. and learned Friend the Member for Putney (Mr. Mellor); my right hon. Friends the Members for Conwy (Sir W. Roberts) and for Selby (Mr. Alison); my hon. Friends the Members for Canterbury (Mr. Brazier) and for Blaby (Mr. Robathan); and my hon. and learned Friend the Member for Burton (Sir I. Lawrence). Opposition Members who spoke included the hon. Members for Huddersfield (Mr. Sheerman), for Bolton, North-East (Mr. Thurnham), for Cynon Valley (Mrs. Clwyd), for Denton and Reddish (Mr. Bennett), for Barrow and Furness (Mr. Hutton) and for Swansea, East (Mr. Anderson). The number of hon. Members who spoke shows the great interest that the debate engendered. I am sure that the Bill will continue to engender such interest as it proceeds.
  Nothing could be more hateful than sexual offences against the most innocent and vulnerable members of our or any other society, and the Bill contains important provisions for tackling the problem. It responds to widespread public concern. Many will be watching our proceedings with interest, and the lives of many others will benefit from the Bill's provisions. Its enactment will mean that the police will have up-to-date information on the whereabouts of convicted sex offenders and will be able to use it for the investigation and prevention of crime.
  The registration requirement will also be a powerful deterrent. Offenders will be aware from the moment they register a change of address that the police know about them and have them in their sights. Those who are tempted not to register should know that that would result in the commission of a further significant criminal offence.
  The provisions are tough, and we make no apology for that. They will place some offenders under an obligation to report their movements for the rest of their lives, and that is

  71
  right. Any measure that strengthens the power of the police in tackling the scourge of sex offending, particularly against children, is to be applauded.
  Mrs. Margaret Ewing: Will the Minister give way?
  Mr. Kirkhope: I am sorry, but time is too short to give way.
  Part II of the Bill is significant. As my right hon. Friend the Minister of State said in opening the debate, it was my privilege in August to represent the United Kingdom at the Stockholm world congress on the commercial sexual exploitation of children. I was moved by what I heard about such exploitation is some parts of the world and by the determination of everyone present to deal with the problem.
  It was clear that we have much to teach others about the investigation of child sexual abuse and the care of child victims in the criminal justice system. I am especially pleased that the Bill will enable us to put in place a key further element in our response to the phenomenon of child sex tourism by extending the jurisdiction of our courts to cover offences that have been committed by Britons abroad.
  There is not enough time available to reply to all the hon. Members who spoke. However, I should like to deal with one or two matters. In her winding-up speech, the hon. Member for Stockport (Ms Coffey) specifically asked about co-ordination and liaison. Not only is there fully developed co-ordination between Departments but there is a good relationship between Departments of State and the non-governmental organisations which were mentioned by some hon. Members. That relationship is important, and since Stockholm I have been keen to encourage it. There will shortly be another meeting with members of the coalition against child prostitution who have worked hard to focus attention on issues relating to international child abuse. By such means we are able to take forward our plans.
  I should like to make a slight correction to the comments of the hon. Member for Cardiff, South and Penarth (Mr. Michael). I mentioned in August the Government's decision to extend the jurisdiction of United Kingdom courts to allow trials in the United Kingdom of those
  72
  committing child sexual abuse abroad. I gave a clear undertaking that the Government would make progress as soon as possible when a suitable vehicle was available. I do not want to trade words with the hon. Gentleman about who said what first, but we have always recognised the importance of these matters. I made that clear last summer, long before some of the dates to which the hon. Gentleman referred.
  The hon. Members for Liverpool, Mossley Hill (Mr. Alton) and for Belfast, South (Rev. Martin Smyth) asked whether it was possible to take account of convictions in foreign courts and to use them as a basis for registration here. To place an obligation on the authorities in respect of those who have been convicted abroad would undoubtedly imply recognition of the judgment of a foreign court. It would also assume that the sentences were compatible with the sentences that would have been imposed here and that the standards of evidence and procedure in the foreign courts were compatible with ours.
  Such a recognition of foreign criminal judgments, passed anywhere in the world, would create precedent. Therefore, it is difficult for us to move down that path, although it might be regarded by many as worth considering. Perhaps it could be considered further in Committee. As the House knows, there is compatibility in our extradition arrangements and it is based on the concept of dual criminality. That removes the problems that might otherwise occur in the proposals that have been suggested.
  There is insufficient time to deal with other matters that have been raised. Most hon. Members who spoke expressed the wish that the legislation should proceed as quickly as possible. I agree, and in Committee we shall be interested to hear their further thoughts on improving the legislation, because it is important that it reaches the statute book as soon as possible.
  We have had an interesting and informed debate. We have also heard of the determination of all hon. Members who have spoken in this debate to make a real impact on the terrible problem of sex offending. The Bill is an important contribution to efforts in dealing with the problem, and I hope that it will very quickly reach the statute book.
  Question put and agreed to.
  Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).

  Education Bill
  As amended (in the Standing Committee), considered.
  Ordered,
  That the Education Bill, as amended, be considered in the following order, namely, New Clauses 3 and 4, New Clauses 8 to 11, New Clauses 1 and 2, New Clauses 12 and 13, other New Clauses, amendments relating to Clause 1, Schedule 1, Clauses 2 to 12, Schedule 2, Clauses 13 to 24, Schedule 3, Clauses 25 to 28, Schedule 4, Clauses 29 and 30, Schedule 5, Clauses 31 to 36, Schedule 6, Clauses 37 to 42, Schedule 7, Clauses 43 to 57, Schedule 8, Clauses 58 to 71, Schedules 9 and 10, Clause 72, new Schedules.—[Mr. Ottaway.]

  Education Bill
    New clause 3

      RELAXATION OF CONTROLS ON ENLARGEMENT OF PREMISES
      After section 259 of the Education Act 1996 there shall be inserted—
      "Significant enlargements for the purposes of section 259
      259A.—

      (1) For the purposes of section 259 an enlargement of the premises of a grant-maintained school is a significant enlargement of those premises if (and only if) the effect of the enlargement, taken with all previous enlargements (if any) taking place since the appropriate date, would increase the school's capacity by more than 50 per cent. or 30 pupils (whichever is the greater) as compared with—

      (a) its capacity on the appropriate date; or

      (b) if at any time after that date its capacity was lower than its capacity on that date, its lowest capacity at any such time.

      (2) An enlargement of the premises of a grant-maintained school is accordingly not a significant enlargement of those premises for the purposes of section 259 if its effect, taken with all such previous enlargements (if any), would not be to produce such an increase in the school's capacity.

      (3) In subsection (1) "the appropriate date" means whichever is the latest of the following dates—

      (a) the date falling four years before the date on which the governing body form the intention to make the enlargement concerned,

      (b) the date when the school was established,

      (c) where any proposals for a significant enlargement of the premises of the school have been approved by the Secretary of State under—

      (i) section 261 below or section 98 of the Education Act 1993, or

      (ii) section 37 or 43 above or section 12 or 13 of the Education Act 1980.

      the date (or latest date) on which any such proposals were implemented, and

      (d) where the local education authority have determined to implement any proposals for a significant enlargement of the premises of the school under section 38 above or section 12(7) of the Education Act 1980, the date (or latest date) on which any such proposals were implemented.

      (4) The Secretary of State may by regulations prescribe the method for determining a school's capacity for the purposes of this section; and in this section references to a school's capacity are references to its capacity to accommodate pupils.

      (5) Nothing in this section applies to a school requiring special measures to be taken.".'.—[Mr. Forth.]

      Brought up, and read the First time.
      7 pm
      The Minister of State, Department for Education and Employment (Mr. Eric Forth): I beg to move, That the clause be read a Second time.
      Some hon. Members will recognise this clause as an old friend—which almost survived a number of attempts in Committee to spoil its clarity and simplicity. In re-introducing it, we have felt the need to change only one word in new section 259A, and that change is purely technical.
      New clause 3 makes an important contribution to the deregulation of controls over the expansion of grant-maintained schools, by enabling GM schools to enlarge their premises by up to 50 per cent. without the need to publish statutory proposals. The provision is not entirely new, as non-significant enlargements can already be made to all schools without the need for publishing statutory proposals. Under current legislation, changes would normally be regarded as non-significant—and therefore not require statutory proposals—if they increased the size of a school by less than 25 per cent., or fewer than 30 places.
      New section 259A(1), which is introduced by the new clause, would effectively change the definition of "significant enlargement" for grant-maintained schools to one in which the capacity of the premises is increased by more than 50 per cent. Similarly to current provision, schools would be able to add 30 places without publishing proposals, even when such a change would increase the size of premises by more than 50 per cent. To avoid very rapid cumulative increases occurring, schools would be required to examine the previous four-year period to assess whether a change is significant.
      The increased freedom provided by the new clause would enable grant-maintained schools to respond to the wishes of parents and to decide for themselves what size of school will most usefully serve their specific area. Such changes will not necessarily require investment of additional public funds, because putting decisions more directly into the hands of schools will increase incentives for governors to explore other ways in which to finance necessary capital work. That is not freedom without responsibility, because—as we made clear in Committee—the Bill requires governors who propose to make enlargements to decide who has an interest, and to consult them about the proposals before making a decision to proceed.
      Some hon. Members may be concerned that the change is limited to the grant-maintained sector, but we believe that it is appropriate for GM schools to take the lead in this matter. Not only are many GM schools popular with pupils and parents, but they are in the best position to investigate innovative approaches to funding additional provision. New clause 3 should enable them to expand to meet demand. I realise that, in some cases, expansion will occur in areas where there are surplus places, but there are ways in which to remove those places if they are in schools that parents do not choose.
      I also realise that many popular schools are outside the GM sector. Those schools will continue, in the normal manner, to be able to make proposals for significant enlargements. We have made it clear that there will be

      75
      circumstances in which, in the interests of increasing choice and diversity, we will be willing to approve increases in places, even when surplus places exist in the area, and especially when subsequent removal of unsatisfactory provision is likely.
      I hope that hon. Members will therefore understand that new clause 3 is a useful measure in increasing the autonomy and responsibility of GM schools and in giving them an opportunity to respond imaginatively to parents' wishes. It is an integral part of the Bill, and I hope that the House will approve it.
      Mr. Peter Kilfoyle: As we have already fully deployed our arguments in Committee on new clause 3—on 3 December 1996—and it was lost by the Government, there is little or no point in revisiting them; they have been reported in Hansard. I believe that we should move to a vote on the new clause.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 272, Noes 273.

      Division No. 52]

      [7.3 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Clarke, Kenneth (Rushcliffe)

      Aitken, Jonathan

      Clifton-Brown, Geoffrey

      Alexander, Richard

      Coe, Sebastian

      Alison, Michael (Selby)

      Congdon, David

      Amess, David

      Conway, Derek

      Arbuthnot, James

      Cope, Sir John

      Arnold, Jacques (Gravesham)

      Cormack, Sir Patrick

      Ashby, David

      Couchman, James

      Atkins, Robert

      Cran, James

      Atkinson, David (Bour'mth E)

      Currie, Mrs Edwina

      Atkinson, Peter (Hexham)

      Curry, David

      Baker, Kenneth (Mole V)

      Davies, Quentin (Stamf'd)

      Baldry, Tony

      Day, Stephen

      Banks, Matthew (Southport)

      Deva, Nirj Joseph

      Bates, Michael

      Devlin, Tim

      Batiste, Spencer

      Dicks, Terry

      Bellingham, Henry

      Dorrell, Stephen

      Bendall, Vivian

      Douglas-Hamilton, Lord James

      Beresford, Sir Paul

      Dover, Den

      Biffen, John

      Duncan, Alan

      Body, Sir Richard

      Duncan Smith, Iain

      Bonsor, Sir Nicholas

      Dunn, Bob

      Booth, Hartley

      Dykes, Hugh

      Boswell, Tim

      Eggar, Tim

      Bowden, Sir Andrew

      Elletson, Harold

      Bowis, John

      Emery, Sir Peter

      Boyson, Sir Rhodes

      Evans, David (Welwyn Hatf'ld)

      Brazier, Julian

      Evans, Jonathan (Brecon)

      Bright, Sir Graham

      Evans, Nigel (Ribble V)

      Brooke, Peter

      Evans, Roger (Monmouth)

      Browning, Mrs Angela

      Evennett, David

      Bruce, Ian (S Dorset)

      Faber, David

      Budgen, Nicholas

      Fabricant, Michael

      Burns, Simon

      Fenner, Dame Peggy

      Burt, Alistair

      Field, Barry (Isle of Wight)

      Butcher, John

      Fishburn, Dudley

      Butler, Peter

      Forman, Nigel

      Carlisle, John (Luton N)

      Forsyth, Michael (Stirling)

      Carlisle, Sir Kenneth (Linc'n)

      Forth, Eric

      Carrington, Matthew

      Fox, Dr Liam (Woodspring)

      Cash, William

      Fox, Sir Marcus (Shipley)

      Channon, Paul

      Freeman, Roger

      Chapman, Sir Sydney

      French, Douglas

      Churchill, Mr

      Fry, Sir Peter

      Clappison, James

      Gale, Roger

      Clark, Dr Michael (Rochf'd)

      Gallie, Phil

      76

      Gardiner, Sir George

      Marland, Paul

      Garel-Jones, Tristan

      Marlow, Tony

      Garnier, Edward

      Marshall, John (Hendon S)

      Gill, Christopher

      Marshall, Sir Michael (Arundel)

      Gillan, Mrs Cheryl

      Martin, David (Portsmouth S)

      Goodlad, Alastair

      Mates, Michael

      Gorman, Mrs Teresa

      Mawhinney, Dr Brian

      Gorst, Sir John

      Merchant, Piers

      Grant, Sir Anthony (SW Cambs)

      Mitchell, Andrew (Gedling)

      Greenway, Harry (Ealing N)

      Moate, Sir Roger

      Greenway, John (Ryedale)

      Monro, Sir Hector

      Griffiths, Peter (Portsmouth N)

      Montgomery, Sir Fergus

      Gummer, John

      Neubert, Sir Michael

      Hague, William

      Newton, Tony

      Hamilton, Sir Archibald

      Nicholls, Patrick

      Hanley, Jeremy

      Nicholson, David (Taunton)

      Hannam, Sir John

      Onslow, Sir Cranley

      Hargreaves, Andrew

      Ottaway, Richard

      Harris, David

      Page, Richard

      Haselhurst, Sir Alan

      Paice, James

      Hawkins, Nick

      Patnick, Sir Irvine

      Hawksley, Warren

      Patten, John

      Heald, Oliver

      Pattie, Sir Geoffrey

      Heath, Sir Edward

      Pawsey, James

      Heathcoat-Amory, David

      Peacock, Mrs Elizabeth

      Hendry, Charles

      Pickles, Eric

      Heseltine, Michael

      Porter, David

      Hicks, Sir Robert

      Portillo, Michael

      Higgins, Sir Terence

      Powell, William (Corby)

      Hill, Sir James (Southampton Test)

      Rathbone, Tim

      Hogg, Douglas (Grantham)

      Redwood, John

      Horam, John

      Renton, Tim

      Hordern, Sir Peter

      Richards, Rod

      Howell, David (Guildf'd)

      Riddick, Graham

      Howell, Sir Ralph (N Norfolk)

      Robathan, Andrew

      Hughes, Robert G (Harrow W)

      Roberts, Sir Wyn

      Hunt, David (Wirral W)

      Robinson, Mark (Somerton)

      Hunt, Sir John (Ravensb'ne)

      Roe, Mrs Marion

      Hunter, Andrew

      Rowe, Andrew

      Hurd, Douglas

      Rumbold, Dame Angela

      Jack, Michael

      Sackville, Tom

      Jackson, Robert (Wantage)

      Sainsbury, Sir Timothy

      Jenkin, Bernard (Colchester N)

      Scott, Sir Nicholas

      Jessel, Toby

      Shaw, David (Dover)

      Jones, Gwilym (Cardiff N)

      Shaw, Sir Giles (Pudsey)

      Jones, Robert B (W Herts)

      Shephard, Mrs Gillian

      Kellett-Bowman, Dame Elaine

      Shepherd, Sir Colin (Heref'd)

      Key, Robert

      Shepherd, Richard (Aldridge)

      King, Tom

      Sims, Sir Roger

      Kirkhope, Timothy

      Skeet, Sir Trevor

      Knapman, Roger

      Smith, Sir Dudley (Warwick)

      Knight, Mrs Angela (Erewash)

      Smith, Tim (Beaconsfld)

      Knight, Dame Jill (Edgbaston)

      Speed, Sir Keith

      Knox, Sir David

      Spencer, Sir Derek

      Kynoch, George

      Spicer, Sir Jim (W Dorset)

      Lait, Mrs Jacqui

      Spicer, Sir Michael (S Worcs)

      Lawrence, Sir Ivan

      Spink, Dr Robert

      Legg, Barry

      Spring, Richard

      Leigh, Edward

      Sproat, Iain

      Lennox-Boyd, Sir Mark

      Squire, Robin (Hornchurch)

      Lester, Sir Jim (Broxtowe)

      Stanley, Sir John

      Lidington, David

      Steen, Anthony

      Lilley, Peter

      Stephen, Michael

      Lord, Michael

      Stern, Michael

      Luff, Peter

      Stewart, Allan

      Lyell, Sir Nicholas

      Streeter, Gary

      MacGregor, John

      Sumberg, David

      MacKay, Andrew

      Sweeney, Walter

      Maclean, David

      Sykes, John

      McLoughlin, Patrick

      Tapsell, Sir Peter

      McNair-Wilson, Sir Patrick

      Taylor, Ian (Esher)

      Madel, Sir David

      Taylor, John M (Solihull)

      Maitland, Lady Olga

      Taylor, Sir Teddy

      Major, John

      Temple-Morris, Peter

      Malone, Gerald

      Thomason, Roy

      Mans, Keith

      Thompson, Sir Donald (Calder V)

      77

      Thompson, Patrick (Norwich N)

      Watts, John

      Thornton, Sir Malcolm

      Wells, Bowen

      Townend, John (Bridlington)

      Wheeler, Sir John

      Townsend, Sir Cyril (Bexl'yh'th)

      Whitney, Sir Raymond

      Tracey, Richard

      Whittingdale, John

      Tredinnick, David

      Widdecombe, Miss Ann

      Trend, Michael

      Wilkinson, John

      Trotter, Neville

      Wilshire, David

      Twinn, Dr Ian

      Wolfson, Mark

      Vaughan, Sir Gerard

      Wood, Timothy

      Waldegrave, William

      Yeo, Tim

      Walker, Bill (N Tayside)

      Young, Sir George

      Waller, Gary

      Ward, John

      Tellers for the Ayes:

      Wardle, Charles (Bexhill)

      Mr. Gyles Brandreth and

      Waterson, Nigel

      Mr. Anthony Coombs.

      NOES

      Abbott, Ms Diane

      Cox, Tom

      Adams, Mrs Irene

      Cummings, John

      Ainger, Nick

      Cunliffe, Lawrence

      Ainsworth, Robert (Cov'try NE)

      Cunningham, Jim (Cov'try SE)

      Allen, Graham

      Cunningham, Dr John

      Alton, David

      Dalyell, Tam

      Anderson, Donald (Swansea E)

      Darting, Alistair

      Anderson, Ms Janet (Ros'dale)

      Davidson, Ian

      Armstrong, Ms Hilary

      Davies, Bryan (Odharn C)

      Ashdown, Paddy

      Davies, Chris (Littleborough)

      Ashton, Joseph

      Davies, Denzil (Llanelli)

      Austin-Walker, John

      Davies, Ron (Caerphilly)

      Banks, Tony (Newham NW)

      Denham, John

      Barnes, Harry

      Dewar, Donald

      Barron, Kevin

      Dixon, Don

      Battle, John

      Dobson, Frank

      Bayley, Hugh

      Donohoe, Brian H

      Beckett, Mrs Margaret

      Dowd, Jim

      Beith, A J

      Dunwoody, Mrs Gwyneth

      Bell, Stuart

      Eagle, Ms Angela

      Benn, Tony

      Eastham, Ken

      Bennett, Andrew F

      Ennis, Jeff

      Bermingham, Gerald

      Etherington, Bill

      Berry, Roger

      Evans, John (St Helens N)

      Betts, Clive

      Fatchett, Derek

      Blair, Tony

      Faulds, Andrew

      Blunkett, David

      Field, Frank (Birkenhead)

      Boateng, Paul

      Fisher, Mark

      Bradley, Keith

      Flynn, Paul

      Bray, Dr Jeremy

      Foster, Derek

      Brown, Gordon (Dunfermline E)

      Foster, Don (Bath)

      Brown, Nicholas (Newcastle E)

      Foulkes, George

      Bruce, Malcolm (Gordon)

      Fraser, John

      Burden, Richard

      Fyfe, Mrs Maria

      Byers, Stephen

      Galbraith, Sam

      Caborn, Richard

      Galloway, George

      Callaghan, Jim

      Gapes, Mike

      Campbell, Mrs Anne (C'bridge)

      Garrett, John

      Campbell, Menzies (Fife NE)

      George, Bruce

      Campbell, Ronnie (Blyth V)

      Gerrard, Neil

      Campbell-Savours, D N

      Gilbert, Dr John

      Cann, Jamie

      Godman, Dr Norman A

      Chidgey, David

      Godsiff, Roger

      Chisholm, Malcolm

      Golding, Mrs Llin

      Church, Ms Judith

      Gordon, Ms Mildred

      Clapham, Michael

      Graham, Thomas

      Clarke, Eric (Midlothian)

      Grant, Bernie (Tottenham)

      Clarke, Tom (Monklands W)

      Griffiths, Nigel (Edinburgh S)

      Clelland, David

      Griffiths, Win (Bridgend)

      Clwyd, Mrs Ann

      Grocott, Bruce

      Coffey, Ms Ann

      Gunnell, John

      Cohen, Harry

      Hain, Peter

      Cook, Robin (Livingston)

      Hall, Mike

      Corbett, Robin

      Hanson, David

      Corston, Ms Jean

      Hardy, Peter

      Cousins, Jim

      Harman, Ms Harriet

      78

      Harvey, Nick

      Morgan, Rhodri

      Hattersley, Roy

      Morley, Elliot

      Henderson, Doug

      Morris, Ms Estelle (B'ham Yardley)

      Heppell, John

      Morris, John (Aberavon)

      Hill, Keith (Streatham)

      Mowlam, Ms Marjorie

      Hinchliffe, David

      Mudie, George

      Hodge, Ms Margaret

      Mullin, Chris

      Hoey, Kate

      Murphy, Paul

      Hogg, Norman (Cumbernauld)

      Nicholson, Miss Emma (W Devon)

      Home Robertson, John

      Oakes, Gordon

      Hood, Jimmy

      O'Brien, Mike (N Warks)

      Hoon, Geoffrey

      O'Brien, William (Normanton)

      Howatth, Alan (Stratf'd-on-A)

      Olner, Bill

      Howarth, George (Knowsley N)

      O'Neill, Martin

      Howells, Dr Kim

      Orme, Stanley

      Hoyle, Doug

      Paisley, Rev Ian

      Hughes, Kevin (Doncaster N)

      Pearson, Ian

      Hughes, Robert (Ab'd'n N)

      Pendry, Tom

      Hughes, Roy (Newport E)

      Pickthall, Colin

      Hutton, John

      Pike, Peter L

      Illsley, Eric

      Powell, Sir Raymond (Ogmore)

      Ingram, Adam

      Prentice, Mrs B (Lewisham E)

      Jackson, Ms Gtenda (Hampst'd)

      Prentice, Gordon (Pendle)

      Jackson, Mrs Helen (Hitsborough)

      Prescott, John

      Jamieson, David

      Primarolo, Ms Dawn

      Janner, Greville

      Purchase, Ken

      Jenkins, Brian D (SE Staffs)

      Quin, Ms Joyce

      Johnston, Sir Russell

      Radice, Giles

      Jones, Barry (Alyn & D'side)

      Randall, Stuart

      Jones, Ieuan Wyn (Ynys Môn)

      Raynsford, Nick

      Jones, Dr L (B'ham Selly Oak)

      Reid, Dr John

      Jones, Martyn (Clwyd SW)

      Rendel, David

      Jones, Nigel (Cheltenham)

      Robertson, George (Hamilton)

      Jowell, Ms Tessa

      Robinson, Geoffrey (Cov'try NW)

      Kaufman, Gerald

      Roche, Mrs Barbara

      Keen, Alan

      Rogers, Allan

      Kennedy, Mrs Jane (Broadgreen)

      Rooker, Jeff

      Khabra, Piara S

      Rooney, Terry

      Kilfoyle, Peter

      Ross, Ernie (Dundee W)

      Lestor, Miss Joan (Eccles)

      Rowlands, Ted

      Lewis, Terry

      Ruddock, Ms Joan

      Liddell, Mrs Helen

      Sedgemore, Brian

      Litherland, Robert

      Sheerman, Barry

      Livingstone, Ken

      Sheldon, Robert

      Lloyd, Tony (Stretf'd)

      Shore, Peter

      Loyden, Eddie

      Short, Clare

      McAllion, John

      Simpson, Alan

      McAvoy, Thomas

      Skinner, Dennis

      McCartney, Ian (Makerf'ld)

      Smith, Andrew (Oxford E)

      McCrea, Rev William

      Smith, Chris (Islington S)

      Macdonald, Calum

      Smith, Llew (Blaenau Gwent)

      McFall, John

      Soley, Clive

      McKelvey, William

      Spearing, Nigel

      Mackinlay, Andrew

      Spellar, John

      McLeish, Henry

      Squire, Ms R (Dunfermline W)

      Maclennan, Robert

      Steinberg, Gerry

      McNamara, Kevin

      Stevenson, George

      MacShane, Denis

      Stott, Roger

      McWilliam, John

      Strang, Dr Gavin

      Madden, Max

      Straw, Jack

      Maddock, Mrs Diana

      Sutcliffe, Gerry

      Manon, Mrs Alice

      Taylor, Mrs Ann (Dewsbury)

      Mandelson, Peter

      Taylor, Matthew (Truro)

      Marek, Dr John

      Thompson, Jack (Wansbeck)

      Marshall, David (Shettleston)

      Thurnham, Peter

      Marshall, Jim (Leicester S)

      Timms, Stephen

      Martin, Michael J (Springburn)

      Tipping, Paddy

      Martlew, Eric

      Touhig, Don

      Maxton, John

      Trickett, Jon

      Meacher, Michael

      Turner, Dennis

      Meale, Alan

      Tyler, Paul

      Michael, Alun

      Vaz, Keith

      Milburn, Alan

      Walker, Sir Harold

      Miller, Andrew

      Walley, Ms Joan

      Mitchell, Austin (Gt Grimsby)

      Wardell, Gareth (Gower)

      Moonie, Dr Lewis

      Wareing, Robert N

      79

      Watson, Mike

      Worthington, Tony

      Wicks, Malcolm

      Wray, Jimmy

      Williams, Alan (Swansea W)

      Wilson, Brian

      Tellers for the Noes:

      Winnick, David

      Mr. Greg Pope and

      Wise, Mrs Audrey

      Mr. Joe Benton.

      Question accordingly negatived.
      Mr. David Blunkett: On a point of order, Mr. Deputy Speaker. In view of the consequential measures dependent on the new clause and given that the Bill is now severely damaged, will the Government withdraw the measure and come back to us so that we can form a consensus on those parts of the Bill on which the whole House agrees?
      Mr. Deputy Speaker (Sir Geoffrey Lofthouse): That is not a matter for the Chair.
      Ms Estelle Morris: On a point of order, Mr. Deputy Speaker. I seek clarification. The clause was lost in Committee, but we went on to consider further clauses that related to it on the understanding that the Government would bring it back on Report. The Government have failed to carry this important new clause, on which later clauses depend. Can we have your guidance on what will happen to clauses that refer to the new clause that has been lost?
      Mr. Deputy Speaker: We must proceed with the Bill. The Government will no doubt take note of the points that have been made.
      Mr. Blunkett: On a point of order, Mr. Deputy Speaker. I would not dream of challenging your decision, but as it was ruled in Committee that the deletion of the clause would have consequential results on the remainder of the Bill, it is difficult to see how the Government can proceed with the Bill in its present form. They said in Committee that they could not.
      Mr. Deputy Speaker: I have nothing to add to what I have said. We must carry on with consideration of the Bill. I have no doubt that the Government will take note of what the hon. Gentleman has said.

    New clause 4

      POWER OF MEMBERS OF STAFF TO RESTRAIN PUPILS
      '. After section 550 of the Education Act 1996 there shall be inserted—
      "Power to restrain pupils
      Power of members of staff to restrain pupils
      550A.—

      (1) A member of the staff of a school may use, in relation to any pupil at the school, such force as is reasonable in the circumstances for the purpose of preventing the pupil from doing (or continuing to do) any of the following, namely—

      (a) committing any offence,

      (b) causing personal injury to, or damage to the property of, any person (including the pupil himself), or

      (c) engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school or among any of its pupils, whether that behaviour occurs during a teaching session or otherwise.

      80

      (2) Subsection (1) applies where a member of the staff of a school is—

      (a) on the premises of the school, or

      (b) elsewhere at a time when, as a member of its staff, he has lawful control or charge of the pupil concerned;

      but it does not authorise anything to be done in relation to a pupil which constitutes the giving of corporal punishment within the meaning of section 548.

      (3) Subsection (1) shall not be taken to prevent any person from relying on any defence available to him otherwise than by virtue of this section.

      (4) In this section—

      "member of the staff, in relation to a school, means any teacher who works at the school and any other person who, with the authority of the head teacher, has lawful control or charge of pupils at the school;

      "offence" includes anything that would be an offence but for the operation of any presumption that a person under a particular age is incapable of committing an offence.".'.—[Mr. Forth.]

      Brought up, and read the First time.
      Mr. Forth: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: With this, it will be convenient to discuss Government amendments Nos. 12 and 40.
      Mr. Forth: The new clause is intended to help teachers. I hope that hon. Members on both sides of the House will welcome it, as the teachers' unions have. It will codify and clarify teachers' powers to restrain disruptive pupils. [Interruption.]
      Mr. Deputy Speaker: Order. Will hon. Members leaving the Chamber please leave quietly, and will those remaining please give the Minister a fair hearing?
      Mr. Forth: Teachers and other staff authorised by the head teacher will have the—
      Mr. James Pawsey: Will my hon. Friend help me and other hon. Members? Does the new clause have any implications for any new clauses, which we may debate later, that relate specifically to corporal punishment?
      Mr. Forth: My hon. Friend will be aware that the wording of part of the new clause bears directly on the point that he has raised. To help my hon. Friend, I shall quote the new clause. It says that the clause
      "does not authorise anything to be done in relation to a pupil which constitutes the giving of corporal punishment within the meaning of section 548."
      My hon. Friend will agree that, in framing this important provision, which has the support of teachers and their unions, we have been conscious of the fact that others see such matters from a different perspective and might have shared my hon. Friend's worry that it might overlap with any possible provisions for corporal punishment. That is why—I hope that my hon. Friend accepts the validity of this—we have taken the trouble to put into the new clause a specific form of words to clarify beyond doubt the fact that the ability of a teacher to use reasonable restraint in

      81
      trying to keep order in the classroom cannot and will not be construed as giving any sort of authority for the reintroduction of corporal punishment.
      Mr. Pawsey: My hon. Friend might acknowledge that there is a fine line between restraint—preventing a pupil from hurting or injuring another pupil—and the use of corporal punishment. It might be construed that corporal punishment is being used in restraining a child. That is a fine point. I should be grateful if my hon. Friend could spend a little time—for my benefit if for no one else's—explaining the distinction.
      Mr. Forth: I understand my hon. Friend's point, which is important. He will remember that, in Committee—I think that it was when we were debating his new clause—similar points were raised about the confusion that might arise in the definition of corporal punishment. I understand why my hon. Friend is bringing a similar argument to bear on the possible definitional problems that might exist on restraint in the classroom. I have two reassurances for him, which I hope he will accept. First, there will inevitably be guidelines which, after due consultation, my Department will issue the better to give guidance to teachers, heads and others on how to interpret the clause and to put the issue beyond doubt. Secondly, any reasonable person reading the new clause, knowing its context, and understanding the motivation behind it, would have difficulty confusing reasonable restraint by a teacher with the administration of corporal punishment. I accept that my hon. Friend's argument might apply in extreme cases, but I doubt whether they would arise.
      Mr. Pawsey: I apologise for continuing to interrupt my hon. Friend's speech. I understand that he is developing the theme. Does he intend to refer to the European perspective? He will know that there have been some erroneous claims that the European Court has ruled against the United Kingdom on the use of corporal punishment in schools.
      Mr. Forth indicated assent.
      Mr. Pawsey: Clearly my hon. Friend agrees that those claims are erroneous. Will he confirm that the new clause does not fall foul of the European Court of Justice?
      Mr. Forth: I am confident that there is no danger of our falling foul of the European Court of Human Rights on this because the measure is designed not only to protect teachers—rightly—against what are often said to be unfair and unfounded accusations, but to protect pupils. It will apply when a teacher restrains a pupil who may be fighting or in conflict with another. One of the important motivations behind the new clause—I am glad that my hon. Friend has given me the opportunity to explain this—is to provide additional protection to pupils. At a cursory reading, it may seem to be all about protecting teachers, but my hon. Friend, with his enormous knowledge and understanding of such matters, will know that one of the other purposes of the new clause is to provide real protection to pupils. We are giving teachers the power to restrain pupils who are harming one another—or even, as might occasionally happen, harming themselves—or causing disruption in the classroom.
      82
      Existing common law principles allow teachers to take reasonable steps to restrain seriously disruptive pupils, but many people seem not to understand that, perhaps because those principles are derived from 19th century case law.
      Mr. Pawsey: I am following my hon. Friend's argument closely. When a teacher intervenes in a classroom brawl or, more likely, a playground brawl, is there a risk of that teacher falling foul of insurance provision? Can my hon. Friend assure me that there will be adequate insurance for teachers, and that any teacher who might be injured as a result of intervening in some disagreement between pupils will be covered by terms of insurance?
      7.30 pm
      Mr. Forth: My hon. Friend has raised an interesting and relevant point; I should like to take further advice on it. My initial reaction is that I do not believe that the new clause would materially affect the position either of teachers or of schools. Ever cautious, however, about giving an off-the-cuff response to an important and substantive point, I should like, if my hon. Friend will allow me, to consider the point and let him know my conclusions. I am, however, fairly confident that the advice I am giving is sound.
      Mr. Nick Hawkins: My right hon. Friend may be aware that I and a number of other hon. Members, including my hon. Friend the Member for Erith and Crayford (Mr. Evennett), have explored insurance in some detail. Does my right hon. Friend agree that the position of the teaching unions is significant in this regard? It is clear to all my hon. Friends that many teachers join the teaching unions when they first qualify simply to get insurance. Their membership is then regarded by the often militant political leadership of those unions as in some way being support for their political policies. Does my right hon. Friend agree that it would be a good thing if insurance cover was separate from union membership—
      Mr. Deputy Speaker: Order. Before the Minister replies, I must remind all hon. Members that interventions are supposed to be brief and to the point. We seem to be straying away from the new clause.
      Mr. Forth: With your permission, Mr. Deputy Speaker, I should like to say to my hon. Friend the Member for Blackpool, South (Mr. Hawkins) that he makes an interesting point which should, perhaps, be pursued. Many, however, would say that it is unlikely that people as perceptive and worldly wise as teachers would sign up to something as important as a trade union for something in a sense as trivial as the obtaining of insurance cover. Were that to be the case, it could give rise to some rather worrying aspects. The matter should, perhaps, be pursued but not necessarily within the confines of our debate on the new clause.
      There have been cases of teachers being investigated by social services departments or the police for trivial instances of restraint of pupils. That is absurd and it is one of the main reasons why we tabled the new clause.
      Mr. Pawsey: I apologise to my right hon. Friend for failing to congratulate him on the signal honour he has

      83
      received. I am sure that all Conservative Members join me in warmly welcoming his membership of the Privy Council.
      I draw my right hon. Friend's attention to proposed subsection (1)(c), which refers to
      "engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school".
      My right hon. Friend will recall that our right hon. Friend the Prime Minister recently referred to the cadet corps in schools. Does he believe that the phrase I quoted has some significance to school cadets?
      Mr. Forth: I am sure that my hon. Friend agrees that the view that our right hon. Friend the Prime Minister and other colleagues have taken is that the development of the ethos that exists in the cadet corps can be a force for good only if it is offered to more and more pupils in schools for the good reason, which my hon. Friend and other Conservative Members well understand, that the team spirit and self-discipline that exist in the cadet corps sit comfortably with the objectives of the new clause. My hon. Friend makes a good and effective point.
      Mr. Hawkins: I join in the congratulations that have already been given to my right hon. Friend on his membership of the Privy Council. Does he agree that one of the interesting things about the way in which the recent suggestion about voluntary service in the cadet force has been portrayed is that the leaders of the teaching unions have deliberately misrepresented it as a plan to make cadet service compulsory? The whole point is that our right hon. Friend the Prime Minister was talking about voluntary service. There was deliberate misconstruction which the media—
      Mr. Deputy Speaker: Order. I have already drawn it to the attention of hon. Members, especially the hon. Member for Blackpool, South (Mr. Hawkins) that interventions are supposed to be brief and to the point. I do not know whether the hon. Gentleman heard me; I made that point only a couple of seconds ago, and my voice has not gone at all.
      Mr. Forth: Regrettably, my hon. Friend the Member for Blackpool, South is right. We find so often that misinformation is spread, often deliberately, by people who wish to misrepresent what the Government intend to do. In that way, they spread unnecessary fears among teachers and, occasionally, among parents. Surely we all understand that membership of the cadet corps has always been voluntary and will continue to be so. We are saying that membership should be encouraged.
      Mr. Kilfoyle: Does the Minister accept that there is virtually no disagreement about the new clause? Does he also accept that his hon. Friends do not need to filibuster?
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      Will he accept the Opposition's advice, and let us get on with the more substantive points of difference between the two sides of the House?
      Mr. Pawsey: On a point of order, Mr. Deputy Speaker. Is it in order for the hon. Member for Liverpool, Walton (Mr. Kilfoyle) to suggest that Conservative Members are filibustering when we are—
      Mr. Deputy Speaker: Order. If the Chair had thought that there was filibustering or tedious repetition, the Chair would have intervened. So far, the debate has been in order.
      Mr. Forth: I hope that, in the same spirit in which the hon. Member for Liverpool, Walton (Mr. Kilfoyle) was able to accept the brevity of the previous debate, he will allow that the House occasionally wishes to explore in a little more detail the provisions of a rather more complicated new clause. In deference to his request, however, I shall try to make progress.
      I was arguing, was I not, that there had been cases of teachers being investigated by social services departments and the police. There has been at least one well-publicised case of a teacher being arrested after intervening to break up a playground fight. That cannot be right. Teachers and appropriate other staff in schools, such as lunchtime supervisors, should be allowed, without fear of prosecution, to use moderate physical restraint where it is necessary to stop pupils fighting. Occasionally, where a pupil is damaging school property or indulging in persistent, defiant disruption which is causing a complete breakdown in good order and discipline in the classroom, there may be nothing for it but for the teacher to lead that pupil away by the arm even though the pupil is not necessarily causing injury to himself or others, or would not be guilty of an offence because he is under the age of criminal responsibility.
      Keeping discipline is a key part of a teacher's responsibilities. The teachers' unique position with regard to the youngsters in their charge and the classroom environment justifies setting out in a single statutory provision that they may lawfully use reasonable force in certain closely specified circumstances. I stress again that that has nothing to do with corporal punishment, which remains largely illegal. Prevention and punishment are two very different things.
      I also emphasise that where a teacher has to restrain a pupil, he or she may use only such force as is reasonable in the circumstances. Ultimately, of course, it will be for the courts to determine what constitutes reasonable force, but I expect that a court would decide that the new clause would not authorise the use of force to restrain a pupil from committing trivial misdemeanours. Force should be used only as a last resort to prevent seriously bad behaviour and, in any event, any force used should be proportionate to the misbehaviour. My Department will issue detailed guidance on the use of physical restraint after consulting the relevant interests. I am sure that Opposition Members and my hon. Friends would expect no less of the Department.
      Mr. David Jamieson: Can the Minister clarify a point? As one who has pulled apart warring pupils on many occasions, I thought that it was

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      within the law at the moment that reasonable force could be used to restrain a child who was doing damage to himself or someone else. Would it be deemed a serious misdemeanour if a child was not trying to inflict damage on someone else or on property, but was trying to leave the room without the teacher's permission? Could that be deemed an occasion on which such restraint could be used?
      Mr. Forth: The hon. Gentleman may—inadvertently, I am sure—be trying to draw me into a matter of detail, albeit an important detail, in advance of the consultation that we want to conduct before we issue guidance. My initial reaction is that an incident such as he describes would probably be more of a disciplinary matter than one that justified the sort of restraint that we are discussing in the new clause. That point probably illustrates better than any other the fact that all reasonable people, especially teachers in the classroom, can readily identify the cases that require this exceptional restraint to be used and the great majority of cases in which there would be no question of its being used.
      Mr. Jamieson: I am grateful to the Minister for clarifying that point. I raised it because I believe that the cases that have been investigated are more to do with the teacher using restraint because a child has disobeyed an order than preventing a child doing damage to themselves or property. It would be helpful if that matter was clarified because, as the Minister will appreciate, there is a great difference between that type of incident and others. In my view, the only circumstance in which a teacher should use that type of restraint is when there is immediate danger to the child, some other person, or property.
      Mr. Forth: I am sure that the guidance, when it is issued after consultation, will reflect that point, although I hope that the hon. Gentleman agrees that there is always a limit to the extent to which guidance issued in good faith from my Department can, or should seek to, detail every conceivable circumstance that might arise in the classroom. A balance has to be struck between giving teachers reasonable guidance, reassurance and examples of best practice, and seeking to set out in black and white every conceivable circumstance that might arise and what can be done in black and white. However, I accept the spirit of the hon. Gentleman's point and I am sure that we will endeavour to ensure that the guidance that will follow consultation, should the new clause be accepted by the House, will strike that balance.
      The new clause would introduce a special provision for teachers, and it should have no effect on the ability of other professional groups, or indeed the public, to rely on defences currently available under the general law when they are prosecuted or sued for damages for assault.
      Amendments Nos. 12 and 40 simply insert the new clause in the Education Act 1996 immediately after the sections concerning corporal punishment and before the new clause concerning detention. I hope that I have been able to satisfy the House, including my hon. Friends, about the intention behind the new clause. The Opposition spokesman has indicated his general support and I hope that the House will also be able to support the new clause.
      Mr. Kilfoyle: I wish only that the Minister had been as willing to consider the consequences of the defeat of
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      new clause 3 as he was to debate the consequences of new clause 4 for new clause 5, tabled by the hon. Member for Rugby and Kenilworth (Mr. Pawsey). They went on ad nauseam about that, but the Minister does not appear to have an opinion on the effect on the Bill of the elimination of new clause 3. Nevertheless, the Minister is correct to say that there is agreement; the broad intention of new clause 4 is both welcome and unproblematic for the Opposition. It seeks to place on the statute book what is in effect the common law.
      The Secretary of State clearly recognises—as, I know, does the Minister—the importance of teachers and others placed in charge of pupils having a measure of protection against physical attacks by pupils, from accusations by parents and from mischievous claims of assault. While fully acknowledging the importance of protecting children from abuse, authorities such as the Council of Local Education Authorities and others have recently undertaken work with a range of other agencies, including the teachers' associations, to develop guidelines on practice and procedures for head teachers and teachers involved in allegations of sexual or physical abuse. The intention of the Secretary of State in tabling the new clause appears to be in broadly the same spirit.
      7.45 pm
      Mr. Pawsey: I am not seeking to be mischievous, but does the hon. Gentleman agree that if better discipline were maintained in the nation's classrooms, there would be less risk of fighting in playgrounds and therefore less risk to teachers intervening in fights?
      Mr. Kilfoyle: That is self-evident, but I posit the question that I put to the hon. Member in Committee: does he see the distinction between discipline, which is interiorised, and order, which is imposed? That question goes to the core of the quality of teaching, parenting and many other issues.
      Notwithstanding the apparently helpful intentions of the Secretary of State, there may be grounds for the expression of some caution in respect of the proposed subsection (1)(c)—which the Minister mentioned—because it is broadly worded. The hon. Member for Rugby and Kenilworth also intervened on the point. Proposed subsections (1)(a) and (b) are more specifically defined, but I wish to seek reassurance that the phrase
      "engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school"
      will not generate a loophole that sanctions the use of physical restraint in circumstances that require some other, more appropriate, action from a teacher to diffuse the tension of a potential disciplinary or behavioural problem. For example, if two pupils were engaged in a disruptive verbal dispute, might proposed subsection (1)(c) legitimise the hasty use of physical force to place them at a distance from each other when a verbal reprimand or use of the detention would be sufficient?
      I hope that the Minister will expand on his earlier comments and clarify the issue I have raised. I also hope that his assurance on the matter will be covered by the guidelines that will emerge from the consultations that he announced. The Minister announced so many consultations in Committee that he earned the nickname of the Minister for consultations, but the vital point about

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      consultation is that the Government should take notice of the conclusions of consultations and apply them when they draft legislation or set out guidelines.
      Mr. Forth: Like the hon. Member for Plymouth, Devonport (Mr. Jamieson), the hon. Member for Liverpool, Walton (Mr. Kilfoyle) has posed a reasonable question and I can give him a preliminary answer. Good order—which is, I think, at the core of his question—could be defined as when pupils' education is not being seriously or persistently disrupted. When the guidelines emerge, I suspect that words such as "seriously" and "persistently" will provide the key to the question. We are not expecting teachers to use physical restraint to deal with trivial or, dare I say, routine classroom difficulties of the kind that one expects in a roomful of boisterous, eight, 10 or 12-year-olds, but if there is serious or persistent disruption, whether fighting or abuse of property or people, the new clause could possibly come into effect. If the disruption were not serious or persistent, we would not expect the measures to be used.
      We have a broad basis on which to proceed, but we will want to fill in the detail after consultation. I know that the hon. Member for Walton is not suggesting that we should not consult, but I am conscious of the number of times that I have undertaken to consult. I hope that we can all agree that that is the right way forward. Through my own experience in the Department, I have learnt that consulting is not only wise but usually fruitful and I am sure that a much better set of guidelines will emerge after consultation than would emerge without it. With that justification, I hope that I have managed to answer the hon. Gentleman's point.
      Question put and agreed to.
      Clause read a Second time, and added to the Bill.
      Ms Margaret Hodge: On a point of order, Mr. Deputy Speaker. Could you tell us whether the Government intend to make a statement on how they will deal with clauses 4 and 5 as they are consequential on new clause 3, which was rejected by the House? Do they intend to amend or withdraw those clauses?
      Mr. Deputy Speaker: I have no information whatever on what the Government intend to do.

    New clause 8

      LOCAL PUBLIC INQUIRIES
      '(1) In section 36 of the Education Act 1996 the following shall be inserted after subsection (3)—
      "(3A) Where an authority has—

      (a) published proposals requiring the approval of the Secretary of State under section 37 below;

      (b) received objections exceeding in number a minimum specified in regulations; or

      (c) published proposals affecting more than a minimum number of educational institutions specified in regulations

      it shall cause to take place a local public inquiry to be chaired by an independent person of suitable standing
      (3B) A local public inquiry under this section shall after hearing such evidence and representations as it considers appropriate, prepare and publish a report making recommendations as to the proposals".
      (2) In section 37(5) of the Education Act 1996 after the first "he" the following words shall be inserted—"shall have regard to the recommendations of any local public inquiry established under section 36(3A) and".'.—[Mr. Kilfoyle.]
      Brought up, and read the First time.
      Mr. Kilfoyle: I beg to move, That the clause be read a Second time.
      The purpose of new clause 8 is to require local public inquiries to be held when an authority proposes new schools, significant changes in their character or enlargement. It is consistent with the view that the House expressed earlier that planning should take place for the provision and character of school places. I am sure that once again the Government will agree with the Opposition.
      Changes to schools always arouse public interest. Any hon. Member with experience of proposals to close schools will know that they invariably meet resistance. Indeed, in a recent attempt to remove surplus places in the authority in my constituency, I experienced both ends of the spectrum. As we all know and agree, the prudent use of public resources demands that the availability of school places should be kept in step with need. Therefore, where there are too many, some must be removed. At some point, removing surplus places must mean closing schools. Although everyone accepts the rationality of that argument, people very often find it hard to accept that their school should be closed.
      In long and involved debates in Committee about the optimum number of surplus places that ought to be held in a given authority, the Minister and I did not disagree that the figure should be around the 10 per cent. mark. Nevertheless, national figures show that there are wide variations and large fluctuations between authorities and between primary and secondary sectors, which must be viewed rationally by the Government of the day and the local authority responsible.
      Present procedures for deciding which schools need to be closed, and how, quite properly require public consultation—there we go, mentioning public consultation again. The present law requires local authorities to publish notices of their intention, to invite comment from interested parties and, after consideration of the consultation, to submit final proposals to the Secretary of State. Having taken into account any further representations, the Secretary of State must determine whether the proposal should go ahead or be modified, which was the essence of our argument against new clause 3, and against clause 3 in Committee. I make no apology for repeating that the House saw fit to remove the clause from the Bill.
      The procedure is open, but because a local authority proposes the original plans and conducts the consultation and review process, it is open to the charge of being a judge in its own court or of being partial. Although the final decision rests with the Secretary of State, objectors sometimes suspect that the process is a sham because the outcome has been determined in advance. I am sure that LEAs are open and responsible public bodies and that such suspicion is invariably without foundation, but the structure of the process lends itself to such an interpretation. That is despite the fact that the lengthy process could require publication of the plans, consultation, revision of the plans and further

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      consideration, as well as the Secretary of State being bound to give further careful consideration to the final plans that are submitted.
      It is normally expected that the Secretary of State will require about six months to consider such proposals; on occasions, no doubt for good reasons, consideration by the Department for Education and Employment can extend considerably beyond that period. The new clause's purpose, therefore, is to address such a flaw in the present system. The substitution of a formal local public inquiry under the control of an independent person for the local authority's consideration of comments on its original proposals will enable objectors to feel that they have been given a fair hearing—certainly fairer than they feel they have now.
      If the inquiry comes down in favour of the LEA's original proposals or if the authority accepts recommendations made to the inquiry, it is likely that further objection will be much reduced, if not removed completely. Such a process would not preclude the LEA from rejecting all or part of the inquiry's findings, but, if it chose to do so, that fact would be all the more obvious.
      The procedure would benefit the Secretary of State. Given that she is rather beleaguered these days, I think that she would welcome that. Instead of employing central Government officials to cover ground that had already been trodden locally in the review of the proposals and any complaints or objections, the Secretary of State would have to hand a separately published report from an independent source with the evidence recorded, analysed and set out. It is likely that that would save the time of DFEE officials and facilitate the Secretary of State's decision-making process.
      When the open process of public inquiry had reached a conclusion and the authority was willing to act on it, the Secretary of State could give approval with some confidence. On the other hand, if there were conflict, it would be clear that the Secretary of State would need to consider carefully how any outstanding differences should be resolved.
      The new clause makes it clear that the expense of a local public inquiry should be incurred only when the scope and seriousness of the proposed changes were of sufficient magnitude to warrant it. The Secretary of State's regulatory power to determine and modify in the light of experience what the threshold should be before an inquiry were triggered would afford some flexibility. It would be open to a local authority to invoke the procedure voluntarily if it believed that the seriousness of the case justified its doing so.
      There is a legal precedent for the holding of public inquiries on school planning issues. It was introduced by the Education Act 1993, and it now forms section 503 of the Education Act 1996. I know that the Minister will be au fait with the details, line by line and word by word. The section provides for a public inquiry where the Secretary of State has proposed rationalisation or reorganisation against which objections have been laid. The new clause draws on that precedent and extends the value of the mechanism to more general cases.
      In answer to those who may question whether a public inquiry would increase the cost—both in money and time—of the process of reorganisation, I would argue that it need not be so. First, the inquiry will be triggered only where there is a major reorganisation in prospect.
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      Secondly, the cost of the proceedings would be offset against the cost of undertaking the internal consultation process currently required of LEAs, and would yield savings by avoiding repetition of the process by central Government officials. Although costs will obviously be incurred in supporting the new procedure, they should be offset by the savings in time of public officials and in the overall time taken to progress rationalisation.
      Mr. Forth: I should say straight away that we are as concerned as anyone that, where statutory proposals are made by local education authorities, they should be considered with the greatest care and that the decisions made should take full account of the views of parents and other schools in the area. We are also conscious of the need for proposals to be dealt with as quickly as possible to avoid unnecessary uncertainty. That is surely particularly important where a school is proposed for closure, although since closure proposals require approval under section 169 of the Education Act 1996, and not section 37, they would not be affected by the proposed new clause. The proposals affected would therefore be those that are less controversial.
      In our view, the existing statutory procedures ensure that full consideration is given to each proposal. LEAs are required to consult all interested parties before they bring forward proposals. There is then a two-month period, during which local people, other schools in the area, the Funding Agency for Schools and the Further Education Funding Council may submit objections to the LEA. There is a further statutory period of one month for those objections to be passed to the Secretary of State with the LEA's comments.
      In considering the proposals, the Department has available not only the statutory notice but a detailed statement of case, any objections that have been made, the LEA's comments on those objections and any other comments or letters of support that may be sent to the Secretary of State. Specialist advice is then sought from Her Majesty's inspectorate. Where appropriate, Ministers may also receive delegations from opponents of a particular proposal. All the evidence is carefully considered before the Secretary of State reaches a decision.
      Let me emphasise again that, through the existing procedures, all the concerned parties have an opportunity to make their views known at the consultation stage and, if they are still not satisfied, by objecting to the proposals.
      In our view, the establishment of a public inquiry to deal with some proposals would be unnecessarily expensive, would duplicate the work done by the LEA at the consultation stage and would seriously delay consideration of the proposals. At the end of the day, the decision would still rest with the Secretary of State. For those reasons we do not consider that the new clause should be accepted.
      8 pm
      Mr. Kilfoyle: The Minister missed the point completely. I do not doubt one iota of what he said about the current procedures, but the point of the new clause is to lighten the load that those procedures create, not only for local authorities but for central Government. We believed that the Minister was an advocate of far less bureaucracy than currently obtains, and the new clause

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      would facilitate the removal of bureaucracy—it would certainly facilitate the removal of the repetition within the current process. Nevertheless, given that the Minister has chosen to retain the current powers, I beg to ask leave to withdraw the motion.
      Motion and clause, by leave, withdrawn.

    New clause 9

      EXCLUSION OF BASELINE ASSESSMENT SCHEME FROM SELECTION
      '( )—(1) No baseline assessment scheme designed or adopted in accordance with sections 31–34 shall be used for the purposes of the selection of pupils as to school admissions whether by reference to ability or aptitude or otherwise.

      (2) The duty on a school governing body to adopt a scheme under section 32(1) and the duty to carry out assessment under such a scheme under section 33(1) shall be undertaken soley for the purposes for which the scheme was designed in accordance with section 31.'.—[Ms Estelle Morris.]

      Brought up, and read the First time.
      Ms Estelle Morris: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: No. 50, in clause 31, page 27, line 16, at end insert
      'and no assessment under such a scheme shall be used for the purposes of selection as to school admissions whether by reference to ability or aptitude or otherwise.'.
      Government amendment No. 65.
      No. 51, in clause 33, page 28, line 12, at end insert
      'and such an assessment shall be undertaken solely for the purposes specified in section 31 above.'.
      Ms Morris: I note that the group includes Government amendment No. 65, with which the Opposition have some sympathy, given that it was tabled in response to points made in Committee. I take this opportunity to thank the Minister for reflecting on the issues and to state our broad agreement with that amendment.
      As we know, the main provisions of part I propose to extend selection in primary and secondary schools without the need to publish a statutory notice or to conduct the subsequent consultation. The proposal to expand selection in primary schools is a backward step that will find little support, but the purpose of the new clause is to ensure that baseline assessment is not used by schools as part of any selection process.
      It is astonishing that, at a time when our primary schools face so many problems—class size, unfit and crumbling buildings, low literacy levels and poor teacher morale, to name but a few—the Government should find legislative time to introduce a measure that is irrelevant to primary pupils' needs. Currently, primary schools, like secondary schools, can select up to 15 per cent. of their intake without publishing a statutory notice. The Government intend to increase that limit to 20 per cent. It is strange that a party that spent its time in government in the 1970s closing more selective schools than any other Government in the history of this nation should reintroduce selection in its farewell piece of legislation in the 1990s.
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      Why is that happening? What is it all about? Can it be that Conservative Members have been bombarded with letters from parents clamouring for the introduction of a five-plus and a seven-plus? Are schools lobbying the Government, day in and day out, appealing to Ministers to allow them to select children at five or at seven? Is there new evidence to show that segregating pupils at five and seven will help to raise standards?
      In Committee, the Minister could offer no evidence of any demand from anywhere for an extension of selection at primary level, but this part of the Bill is even more ill thought out. He admitted that he did not even know how many primary schools had used the existing power and had exercised their right to select. There we have it: a flagship piece of legislation—a half-a-flagship piece of legislation now—to establish a primary grammar school in every town, yet the Minister does not know whether parents or schools want it. He does not know how many primary schools already select or the effects—if any—of the selection that is already taking place. In Committee, he said:
      "joyously, I might say—we do not know the answer."
      He added:
      "I am able to display a degree of indifference".—[Official Report, Standing Committee D, 26 November 1996; c. 94.]
      We would not mind the Minister's indifference or joyous ignorance so much if the provisions of part I were only irrelevant, but the trouble is that they are potentially damaging. The arguments against selection are well known and well made: it weakens parental choice and preference; it institutionalises low expectations of children; and it labels too many of our young children as failures. All the arguments that are self-evident in respect of selection at the age of 11 are even more self-evident in respect of children aged five or seven. I do not believe that primary schools want to select but, as long as the provision exists in legislation, schools may choose to deal with the problem of demand for places exceeding supply by selecting on ability or aptitude. This part of the Bill cannot be ignored—it is irrelevant but has to be tackled because it is dangerous.
      Mr. Nigel Spearing: There are many hon. Members in the Chamber who did not sit on the Committee. May I inquire whether, in Committee, the Government dealt with the inevitable knock-on effect of the exercise of this scheme in respect of a journey to school from the neighbouring area? What was the Minister's response—if any—to that most disruptive effect on parents and pupils within any neighbourhood or town?
      Ms Morris: My hon. Friend's interest in education and matters of selection and his support for comprehensive education are well known. One of the problems we encountered in Committee was that the Government failed to understand that, if one school decides to select, that decision affects other schools. The legislation not only gives individual schools the right to select, but creates troublesome consequences for all the other schools in the area. My hon. Friend gave some examples of the difficulties that might be caused.
      At primary level, the vast majority of parents choose to send their children to local schools. There is, in most communities, a strong notion of a primary school serving

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      its local neighbourhood. Children attend the same school as their brothers and sisters and their neighbours' children. They identify with the school in their community. The primary school is both parents' and pupils' introduction to the school system. That identity—that association of the primary school with its community—helps to give primary children stability. Selection at primary level threatens that. If schools select 20 per cent. of their intake through academic selection, the same number of children may be refused the right to attend their local school.
      The 11-plus examination notoriously failed to predict accurately the academic potential of children. It often got it wrong and thousands of children paid the price. Why do Ministers think that a child's academic potential can be accurately predicted at the ages of five and seven, when we know that it cannot be done when the child is 11? What concerned us most in Committee was the Minister's suggestion that baseline assessment could be used by primary schools as the means of selecting pupils. That was worrying for two reasons. First, it will not work and, secondly and more seriously, it is a threat to the emerging consensus about the merits of baseline assessment.
      There is a growing appreciation of the value of baseline assessment and the Minister knows that that part of the Bill was welcomed by hon. Members on both sides of the Committee. Such assessment is a sensible approach to determining what a child knows and what the child can do when he or she starts school. It is useful for setting targets so that teachers can ensure that every pupil makes appropriate progress. In Labour-led local authorities where baseline assessment has been introduced and pioneered, it has already been shown that it can help to raise standards.
      As far as I know, until the Minister spoke in Committee, no one had thought of using baseline assessment as a means of selecting children for primary school entry. The School Curriculum and Assessment Authority document makes it clear that it is not designed for that purpose. SCAA outlines four purposes of baseline assessment—to identify the child's strength and learning needs, to enable the teacher to plan appropriate teaching and learning activities, to identify the child's individual learning needs, including special educational needs, and to provide information that will inform future discussion with parents about their child's learning process. It is clear from the SCAA consultation document that none of the purposes of baseline assessment is fit for use as entrance tests at primary level.
      The Minister must understand—he did not do so in Committee—that there is a vast difference between a technique, such as baseline assessment, that can identify a child's strengths and needs at a specific moment, and an assessment that can guess what his or her future academic achievement or potential might be.
      I, for one, do not believe that it is possible to develop an effective five-plus or seven-plus assessment. I believe that it would be damaging to do so. It would not be welcomed by parents or schools. However, in many ways, that is not the purpose of new clause 9. The Minister has caused a serious problem: he has muddied the waters on baseline assessment and he has risked damaging the consensus that has been constructed around its introduction. It cannot be a way of diagnostically assessing a pupil and a predictor of academic ability.
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      New clause 9 would make clear once and for all what many of us believed—that baseline assessment should not be used as a means of selecting pupils at primary level. As baseline assessment is good for schools, good for children and good for parents, the Government should take no more risks with it. They should ensure that they take the opportunity to make it clear that baseline assessment was never intended to be used, and never will be used, as a way of allowing primary schools to select their pupils for intake at the age of five or seven.
      Mr. Jamieson: In Committee, the Minister of State said that he felt that much of the legislation that had passed through the House in recent years had been concerned, not with raising the standards of children's education, but with tinkering with systems of education. We have before us tonight a proposal to introduce more selection in both primary and secondary schools—another example of the Government not finding ways to improve children's education, but tinkering with the system at the edges.
      Mr. Spearing: On a point of order, Mr. Deputy Speaker. I apologise for not raising the matter immediately, but I was taken by surprise. Is it not the custom of the House that when an amendment is moved, we receive an initial indication from the Government side of the House? Unless we do, some of the speeches that you may wish to hear from us will be bereft of the knowledge of the Government's point of view.
      Mr. Deputy Speaker: I cannot help that. It is entirely up to Ministers to attempt to catch my eye. If they do not do so, they do not get called.
      Mr. Jamieson: Perhaps I may help my hon. Friend the Member for Newham, South (Mr. Spearing). It would seem that, after the Division a few minutes ago, some of the steam has gone out of Ministers and there is a reluctance to speak about matters, except—
      The Parliamentary Under-Secretary of State for Education and Employment (Mrs. Cheryl Gillan): On a point of order, Mr. Deputy Speaker. To clarify the matter for the House and for yourself, I fully intend to speak towards the end of the debate, if I have the opportunity to catch your eye.
      Mr. Deputy Speaker: There is the explanation.
      Mr. Jamieson: I thought that my well-chosen comments might bring the Minister to her feet to explain her silence and her Trappist appearance on the Front Bench. We look forward to hearing the Minister answer the excellent points made by my hon. Friend the Member for Birmingham, Yardley (Ms Morris), but I noticed, during the passage of the Nursery Education and Grant-Maintained Schools Act 1996, when the Bill before us was discussed in Committee, and in many debates, that the Minister is sometimes reluctant to expose her views to the debates that we have in such Committees. I am sad that we have not had the benefit of the Minister's thoughts on these important matters as a prelude to our discussions.
      When the Bill was introduced, we understood that selection would apply to the secondary sector. I seem to remember that even the Secretary of State looked taken aback when it was suggested that the proposals in this legislation might also apply to primary schools.

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      8.15 pm
      I suspect that many of the Members who are, sadly, absent from the Conservative Benches tonight—
      Mr. Pawsey: We are here.
      Mr. Jamieson: I am glad to hear that the hon. Member for Rugby and Kenilworth (Mr. Pawsey) is here. Perhaps later he might go and rally some of his troops and get them into the Lobby to vote on some of these matters. Very few Conservative Members are present, and we saw earlier that the Government could not even rally the troops for a vote on a vital clause. They have lost not once but twice. To lose a vote once is unfortunate, but twice is sheer carelessness. [Interruption.] I hope that the hon. Member for Rugby and Kenilworth, who is barracking from a sedentary position, will go and use his barrack-room tactics on some of his hon. Friends, who were not in the Lobby to vote on what was thought to be a vital clause for the Government.
      Mr. John Gunnell: In view of the clause being lost twice, it seems to me that the House has expressed its view on new clause 3 extremely firmly. It does not want it. It did not want it in Committee. The whole House does not want it. It cannot possibly be re-introduced in the Lords because we would then have the Government encouraging the Lords to overrule the Commons. Does my hon. Friend agree that that clearly would be completely out of order, constitutionally?
      Mr. Pawsey: On a point of order, Madam Deputy Speaker. May I seek your advice? You have heard what Labour Members have said. Would I, however, be right in saying that there would be no objection to that new clause being introduced in another place, and that if it were carried in another place it could be introduced in this place, under the general heading of Lords amendments?
      Madam Deputy Speaker (Dame Janet Fookes): I am not going to rule on hypothetical suggestions.
      Mr. Jamieson: Thank you, Madam Deputy Speaker. With your usual wisdom, you put the hon. Member for Rugby and Kenilworth firmly back in his place. However, my hon. Friend the Member for Morley and Leeds, South (Mr. Gunnell) has raised an interesting constitutional issue. A vital part of a Bill has failed to pass through Committee and has failed to pass through the House tonight, and the Government may have to ask those in another place to amend something that we in this place have decided that we do not want. We look forward to that.
      Mr. Pawsey rose—
      Mr. Jamieson: I see that the hon. Gentleman wants to intervene. I look forward to his explanation on this important matter.
      Mr. Pawsey: The hon. Gentleman mentioned constitutional reform. Am I not right in saying that the Labour party wished to reform the other place? Given the
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      circumstances of today's debate, do I take it that he, at least, will no longer support the constitutional proposals being advanced by his leader?
      Mr. Jamieson: Madam Deputy Speaker, if I answered the hon. Gentleman, you would rightly draw me to order for speaking out of order on new clause 9.
      Mr. Pawsey: That is a hypothetical case; try.
      Mr. Jamieson: I can tell the hon. Gentleman that we shall have a reform in this place, and that will be that we shall shortly be sitting on the Government Benches, and those Conservative Members that are left—the rump, and possibly not the hon. Gentleman—will be sitting on the Opposition Benches.
      Mr. David Evennett: Keep dreaming.
      Mr. Jamieson: There are various questions about selection which Conservative Members really must answer. The first concerns a point that emerged clearly when the Bill was given its Second Reading—it was made by a number of Conservative Members too. Let us consider an area where the secondary school serves a local population and there are no other schools nearby. What happens if that school is oversubscribed and then decides to select—in the case of an LEA school, up to 20 per cent. of its intake? Will large numbers of local children be rejected in favour of children from well outside the area whose parents can afford the transport?
      Before Christmas, the Under-Secretary of State for Education and Employment visited the excellent Tavistock college in Devon, where she saw the wonderful language unit and learned how popular the college is. It is a comprehensive school for 11 to 19-year-olds, and it achieves better results than were gained in the old days, when there were grammar schools and secondary moderns in the town. What would happen if a school like that, without consulting local people or the council, chose to run its own tests and set up a grammar stream? Could local parents be prevented from using their local school for their children? [Interruption.] The hon. Lady is deep in conversation with her ministerial colleagues on this vital point; I am glad that she is listening to their views.
      The problem becomes even more serious in the context of primary schools. If an infant school operated some form of selection, that could have far reaching consequences for parents and children in the locality. It is quite reasonable to expect a child at secondary school to travel one or two miles—in rural areas, as much as 10 or 20 miles—but it would be outrageous if a primary school chose to go selective and ruled out a number of children from the neighbourhood.
      How would the admissions criteria work when such a school decided to take some children via the selective procedure? What criteria would the school then use to turn down other children?
      Listening to my hon. Friend the Member for Yardley it was clear to me that there is no enthusiasm on the part of parents for further selective education. The Minister may recall that, 15 years ago or thereabouts, there were attempts in Solihull to return to selection. When parents realised that their local comprehensives could suddenly

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      again become grammar schools or secondary moderns, they spoke out loud and clear. Further selection was roundly turned down—[Interruption.] I see that the hon. Member for Solihull (Mr. Taylor) has arrived in the Chamber. I hope that he will give us the benefit of his enormous wisdom and experience. He and I served on Solihull council together. In fact, everything he knows he learned at my feet. He sat just in front of me in the council chamber and used to turn to me for advice and assistance. Being the generous person that I am, I helped him a great deal—and look where he is today. He will remember how parents in the area reacted. The good people of Knowle and Dorridge—hardly socialist enclaves, although we may have got a few votes from them—rose up to a man, or woman, and rejected the idea of more selection. They had had a taste of the old system and they did not like it or want to return to it.
      The hon. Member for Solihull will know of the excellent Arden school, and of my old school, Tudor Grange, which now gets better examination results as a comprehensive than it did as a grammar school. The hon. Gentleman will know that more than 80 per cent. of the children at those two schools achieve five or more GCSEs at A to C grades. Parents there do not want to return to selection.
      Mr. Pawsey: Does the hon. Gentleman agree that his argument is a powerful one in favour of added choice and diversity in schools? He will recall that, in Rugby, we have maintained grammar schools; we have Rugby high school for girls and Laurence Sheriff grammar school for boys, both of which have an enviable reputation in the town for providing high quality education. Does he agree that the quality of education rests to a great extent on the quality of the primary schools in Rugby? The fact is that the very existence of an 11-plus ensures a tendency to teach up to that examination, thereby enhancing all secondary education across the borough.
      Mr. Jamieson: The hon. Gentleman says that he believes in choice. We too believe in choice, but with a difference. Conservative Members believe that choice lies with the school—to choose its pupils. We believe that pupils and parents should choose the school. Selection means that the school selects the children, and there is no parental choice. If the hon. Gentleman is suggesting that all parents, regardless of the ability of their children, can choose to send the latter to grammar school, he is wrong. Children who do not pass the test end up in secondary moderns—there is no choice about that.
      Real choice comes when parents can choose a good comprehensive on its merits from among several in the vicinity. That is real choice: not taking an examination and failing.
      Mr. Pawsey: I thank the hon. Gentleman for his courtesy in giving way to me a third time. The principle of selection was discredited in some quarters because we failed to put adequate funds into what were known as secondary moderns and junior technical schools. Does the hon. Gentleman agree with that? The mistake was not giving them an adequate share of resources between the 1940s and 1960s; had they received an adequate share, the tripartite system that worked so well in Germany would have worked equally well here.
      Mr. Jamieson: There could be a great deal of truth in what the hon. Gentleman says, in some authorities' areas.
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      It may have been true of Warwickshire. In the 1950s, secondary modern schools were often built without libraries because it was not thought that children who were going to leave at 15 would need them. The idea was that the girls would learn cookery and sewing and get married, and the boys would go off to learn a trade.
      The problem is that the hon. Gentleman is arguing against a return to selection. Selection means that we hold some children in higher esteem than others—that is what was wrong with the bipartite system. Pupils who went to secondary moderns felt that they were receiving an inferior education. In Warwickshire—I have seen the papers to prove this—a few months after the 11-plus children received a piece of paper saying, "You have passed. You will be going to X or Y grammar school," or a different piece of paper saying, "You have failed. You will now go to the local secondary modern school." That is why those schools were not held in the same esteem in the public eye, and why we say that we need a fully comprehensive system. Selection is not appropriate because, unlike the hon. Gentleman, we do not want to return to the bad old days of the 1950s and 1960s.
      8.30 pm
      Mr. Pawsey: I am obliged to the hon. Gentleman for giving way yet again. Does he accept that in Warwickshire, we have a safety net, as it is called? That means that young people who go to the high schools can transfer at age 16 to the sixth form in a grammar school. [Interruption.] I cannot give way to the hon. Member for Birmingham, Yardley (Ms Morris) as this is an intervention, but if she wants to intervene in the speech by the hon. Member for Plymouth, Devonport (Mr. Jamieson) and take up the point, I shall be interested to hear her comments. She taught in Warwickshire schools, so she knows that pupils can transfer from a high school to a grammar school. The safety net operates in my county.
      Mr. Jamieson: I wondered for a moment who the hon. Gentleman was intervening on—me or my hon. Friend the Member for Yardley. We must move on to baseline assessment.
      Mr. Spearing: Those who read our debates or extracts from them may be puzzled. I cannot find the word "selection" in the Bill, or any implication that the Bill will be used for the selection of pupils into primary schools. The only words in the Bill which suggest that are the reference to
      "assisting the future planning of their education"
      and
      "where the pupils in question transfer to other schools".
      Can my hon. Friend tell me the legal basis for the apparent purpose of the Government in giving schools the power to select pupils for entrance to primary schools?
      Mr. Jamieson: I am grateful to my hon. Friend for the thoroughness with which he always tackles such matters. The Minister made it clear during Committee that an early clause of the Bill allowed primary schools to select their pupils. That was admitted by the Secretary of State on Second Reading. It would be interesting if my hon. Friend took up the point with the Minister later in the debate.

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      Other parts of the Bill are falling apart, and with his great knowledge of such matters, perhaps my hon. Friend has noticed a fundamental flaw in the Bill.
      We are pleased that the Government have been persuaded by our arguments on the important matter of baseline assessment, which allows teachers and parents to make an assessment of the progress of individual children, and the value added to their education by the school. We must test not just children's absolute achievement, but the progress that they have made from one stage to the next.
      I was delighted to note that in a recent Ofsted report on a school in my constituency that takes some children from your constituency, Madam Deputy Speaker—the John Kitto community college—the Ofsted inspectors took into consideration true added value. They noted that 24 per cent. of the pupils at age 16 passed five or more GCSEs at grades A to C, which is about half the national average, but they commented that, according to the tests that the children had taken at age 11 to predict their performance at 16, only 12 per cent. would pass 5 GCSEs at grades A to C. Ofsted therefore recognised that although the school attained only half the national average in exam results, it has a huge added value for the children who attend it. The report also noted that 60 to 70 pupils per year out of 270 are selected to go to the local grammar school and do not attend the community college. I am pleased that Ofsted is now using a type of baseline assessment to measure the standards that are being value added to schools.
      If baseline tests were used as a form of selection, that would be disastrous for two reasons. First, the tests should be used primarily not as summative tests, but as formative tests, to predict the sort of education that a child needs and the progress that he or she will make, and over a number of years to measure the progress that the child has made, and most of all, the effectiveness of the teaching and the education in the school. That is what baseline assessment should be about.
      Secondly, parents' confidence in the process could be undermined, if they felt that a baseline test would be used in a selective way to rule their children out of a school, rather than being used by the teacher and the school as a means of assisting children in their education. If a baseline test were used to rule children out, many parents would object to their children taking the test, in case it was used to put their children on the fringes of the school. Using baseline tests for the purpose of selection could have a serious effect on parents' confidence in the system.
      When the Minister sums up, perhaps she could answer a further point. If a child entered in the pre-compulsory year sector of a school—the nursery school—could the school use baseline tests at the end of the nursery stage to weed out those children that it did not want to take in the later stages? There is a danger that, used in that way, baseline testing could fragment children's education. Choice would rest with schools, rather than with parents.
      Earlier in the debate we heard comments on recent announcements concerning matters such as cadets and the royal yacht Britannia. The Government thought that they had struck a popular vein, but they are profoundly out of touch with public opinion. On selection, and especially selection for primary schools, the Government are way out of touch with parents.
      Mr. Pawsey: I again thank the hon. Gentleman for the courtesy that he has shown me this evening. It is out of
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      character, but it is deeply appreciated none the less. I draw the hon. Gentleman's attention to the fact that the poll conducted by the Association of Teachers and Lecturers shows support for selection. The hon. Gentleman is assiduous in these matters and will be aware of the poll. He will know that the majority of parents supported selection. I suggest to him gently that that undermines his entire case. He and his party would deny parents what they want in their children's education.
      Mr. Jamieson: The wonderful thing about giving way to the hon. Gentleman is that he puts his foot in his mouth so much that he makes the Opposition case and destroys the Government's arguments. He has done it yet again. The hon. Gentleman misquotes the responses. When parents were asked whether they wanted grammar schools, many said yes. When parents were asked whether they wanted selection, they were not so happy. A very low percentage of parents wanted their children to attend secondary modern schools. I suggest to the hon. Gentleman that the Government could use some of the funds that have mysteriously flowed to the Conservative party to test their focus groups. They could ask parents, "Do you want your child to attend a secondary modern school?", and I make a modest wager with the hon. Gentleman that less than 5 per cent. of parents would say yes.
      Mr. Warren Hawksley: I served on the Shropshire county council education committee in the days when we had selection. Does the hon. Gentleman accept that parents might be so ambitious for their children as to believe that they would be successful and attend grammar schools? That might be why parents responded in the way that the hon. Gentleman claims.
      Mr. Jamieson: If the hon. Gentleman had been present earlier, he would have heard the exchange involving the hon. Member for Solihull. Parents do not want their children to fail at school, and parents in that area did not want to return to a selective system because they knew full well that, under that system, four fifths of children fail at age 11. Selection does not have a great resonance for parents.
      I shall be happy to give way to the hon. Gentleman if he wishes to intervene again. Will he tell us, honestly and frankly, how many parents in his constituency have written or spoken to him or petitioned him saying that they want their local comprehensive school split into a grammar school and a secondary modern school? How many letters of that type has the hon. Gentleman received? How many parents' groups has he met which demand the return of selection in his area so that children may take the 11-plus test?
      Mr. Hawksley: That is not an issue in my constituency. The argument in Halesowen and Stourbridge is whether we should have grant-maintained schools. The local branch of the Labour party is doing everything it can to ensure that parents in my constituency are deprived of that opportunity. They are pressurised not to have grant-maintained schools. I believe that the Labour party is applying similar pressure in Dudley.
      Mr. Jamieson: I have hit another rich vein, as another Conservative Member makes points for our side. The hon. Member for Halesowen and Stourbridge (Mr. Hawksley) claims that parents in his area, first, do not want selection and the 11-plus test; and, secondly, despite all the bribes, cannot be enticed to vote for schools to go grant maintained. Both of the Government's policies have failed. I did not intend to mention the Government's failed grant-maintained policy and the fact that just over 1,000 schools have opted out. The hon. Gentleman has confirmed that both of those policies have failed in his constituency not because of local Labour politicians or events in this House, but because perceptive parents who want the best for their children have roundly rejected those ideas.
      Mr. Tony Marlow rose—
      Mr. Jamieson: Having said that we had hit a rich vein of failure, I willingly give way to the hon. Gentleman.
      Mr. Marlow: If the grant-maintained policy has failed, why do "perceptive"—to use the hon. Gentleman's word—Labour Front Benchers move heaven and earth to ensure that their children attend grant-maintained schools?
      Mr. Jamieson: The hon. Gentleman will have to do a little better than that. Labour Members have no problems with parents sending their children to grant-maintained or any other schools. There is a grant-maintained Catholic boys school in my constituency. If parents who have profound and deeply held views about a particular religion—in this case, it is the Catholic Church—and who believe in single-sex education were to ask me which school they should send their children to, I would tell them to send their children to the school of their choice, whether or not it is grant maintained. I am surprised not that the hon. Gentleman should enter the argument—as so many of his hon. Friends have done—by referring to hon. Members' children, but that his Front-Bench colleagues should do so also.
      Mr. Don Foster: If the hon. Gentleman seeks evidence that grant-maintained status has failed, he need look no further than the fact that only 0.5 per cent. of eligible schools bothered to seek grant-maintained status in the past 12 months. Does that not illustrate that the parents and governors of eligible schools know that it is a failed policy?
      Mr. Jamieson: The hon. Gentleman is absolutely right. In many areas—such as Cornwall—there are no grant-maintained schools and there have been scarcely any ballots. There is no enthusiasm among parents to hold such ballots, even though no pressure is applied. The hon. Member for Bath (Mr. Foster) will know that the pressure on schools is not to go grant maintained or selective but to improve standards. Parents are seeing their children in larger classes, they see a lack of resources and they see depressed and demoralised teachers. Those are the issues that concern parents, and parents will bear them in mind when they cast their votes in the general election. They will make a genuine assessment of where the parties stand on those issues.
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      8.45 pm
      The Prime Minister said that he wanted to see a grammar school in every town. He has since backed away from that statement, but I assure him that parents do not want to see a grammar school in every town—and they certainly do not want to see a grammar primary school in every town. They know that selection is a means of denying their children the school of their choice. Parents know that they will not be able to choose a school for their children. I urge hon. Members to join us in the Lobby tonight in voting for a new clause that is not just profound common sense but is in touch with the wishes of parents.
      Mr. Don Foster: On a point of order, Madam Deputy Speaker. Can you advise the House whether it is appropriate for us to consider any amendments to the Bill, given that it appears to be flawed? I draw your attention to clause 6(2)(a), in which direct reference is made to "section 259A". You will be aware that that proposed new section was the subject of the new clause that the Government sought to insert. We are interested to know how it is possible to bring a Bill to the House that refers to a proposed new section whose insertion the House has not approved.
      Madam Deputy Speaker: As I understand it, it is open to the Government to make any necessary changes—either at a later stage here or possibly elsewhere.
      Mr. Foster: Further to that point of order, Madam Deputy Speaker. I am grateful to you for your guidance. My point is that I fail to understand how the Government can bring to the House a Bill that refers to a proposed new section that the House has not agreed should be inserted in the Bill. New clause 3, which we debated earlier, attempted to insert proposed new section 259A. The legislation before us refers to that proposed new section, but the House has not approved it.
      Madam Deputy Speaker: I think that my point must remain the same.
      Sir Teddy Taylor: As we are near an election, I suppose that party bashing is the flavour of the month. However, this evening I hope to persuade hon. Members to vote against the new clause and to persuade the hon. Member for Plymouth, Devonport (Mr. Jamieson) that he is wholly wrong. I contend that the Labour party is supporting proposals that damage the working class.
      Anyone who is familiar with grammar schools and the selection system will be aware that, in boroughs and towns that do not have the grammar school escape route, people are educated—as the hon. Gentleman must know—according to class segregation. If he doubts that, he should look at the figures that were published in the Evening Standard tonight. The schools that are low achievers when it comes to the teaching of reading and writing are not in Labour constituencies, or Tory constituencies—it is a class issue. Hon. Members must know that, if there is no grammar school system, people are educated according to where they live.
      Mr. Kilfoyle: I ask the hon. Gentleman a simple question: if we accept his prognosis that the way to

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      demolish class barriers is to take 20 per cent. of our young people, irrespective of their social class, and hive them off through selective education into one type of school, what does that offer the other 80 per cent., who by definition will be denied access to that type of school?
      Sir Teddy Taylor: I am not questioning the integrity of Opposition Members. I am pleading with them to understand the option. Let us consider achievement. I wonder whether the hon. Member for Liverpool, Walton (Mr. Kilfoyle), the Opposition spokesman, knows the best part of Britain for A-level examinations. Is it the south-east of England, where there is much wealth and large houses? Is it the north-east of England? The place that is streets ahead of everywhere else in the United Kingdom is a place called Northern Ireland, where there is massive poverty. That is accompanied by considerable unemployment and a great deal of misery.
      Why should Northern Ireland do so well? Whether a child is in a Catholic or non-Catholic school, there is a basic 25 per cent. selection for grammar schools. If Opposition Members doubt that, let them see what happens in Northern Ireland.
      In my constituency, there is a great deal of unemployment. That is accompanied by much poverty, sadness and unhappiness. Why is it, however, that A-level and GCSE examination results in Southend-on-Sea are streets ahead of the average for Essex, which is a prosperous county and streets ahead of the average for the nation? The answer is that Southend has a system of 25 per cent. selection, which means that one child in four goes to one of four large grammar schools. Opposition Members may not like that, but it happens to be true.
      Mr. Spearing: I do not dispute the hon. Gentleman's figures, but surely he faces a logical dilemma. An equal and perhaps even a greater explanation of what I might call the Southend phenomenon is the quality, dedication and resources that are available to the schools that take the 75 per cent. Is not that just as likely an explanation as the process of selection, which the hon. Gentleman advances?
      Sir Teddy Taylor: I should like to think that achievement in Southend reflects the Government's kindness in the allocation of finance, but that is not the case. There is no sign that it is. Perhaps Opposition Members will reflect on my own case. I am now an old man; I have been in this place for 33 years. I came from what was loosely described as a poor home in Glasgow. I managed, through a test, to get into a school called the Glasgow high school for boys. I went there along with other kids. That school was closed by the Labour council. The council scrapped it.
      What happened then? The Glasgow high school for boys became a private school. It is now called the Glasgow high school. I shall speak at one of its dinners in a few weeks' time. Unless one can afford a fortune in fees, a child cannot go there.
      The children of wealthy Members—the up-market group of society—have no problems. Their parents can send the kids to a fee-paying school. But what about able kids with caring parents who live in working-class areas,
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      perhaps on income support? Perhaps they have no money at all. Opposition Members must think about the situation in cities where there is no selection. There are no grammar schools. We all know that such people will do all that they can to move into "nice" areas.
      If Opposition Members doubt that, let them reflect on Glasgow, and the constituency that I used to represent. There was a massive housing scheme called Castlemilk. Allegedly, it was the largest council scheme in Europe. A short distance from that scheme was a small owner-occupied area, part of which was called King's Park, where there were modest but quite expensive small properties. There were many decent and honourable people in Castlemilk. If their kids in secondary schools obtained any sort of qualification—that is, any GCSE or any O-level, as the examination was then—they were doing well. Just down the road, about a mile away in King's Park, if a kid did not get to university, he was not doing well. That is tragic. It is appalling.
      Mr. Jamieson: The hon. Gentleman is saying that some children have an escape route that enables them to get into a grammar school. It is a curious argument. Does it not mean that children who are poor and go to a secondary modern school face double jeopardy?
      Sir Teddy Taylor: That is wrong.
      If a quarter of the kids are selected, are the three quarters worse off than they would be otherwise? The answer is no. It is plain that someone must be top of the class. Someone has to be a prefect. Someone has to be an achiever. If 25 per cent. of children are removed, there is not the slightest proof or sign that the remaining children are thereby worse off.
      I have tried desperately hard not to become involved in party politics, much of which is sick. Much of the propaganda that is being presented makes me almost ill. Hon. Members are well aware of their friends and supporters and they know of people who are deliberately conspiring to move their kids away from the areas in which they live to other areas where they think that there are nicer or higher-achieving schools. I am sure that that applies to both parties. I am sure that it even applies to Liberal Democrats, nice people though they are.
      Ms Hodge: Does the hon. Gentleman agree that we all wish to have the highest standards for all our children in all our schools, and that the real and proper way forward is not to provide only some good schools that offer opportunities for a few children? Does he agree instead that we should focus our attention on raising standards in all our schools, so that children can go to their neighbourhood school and receive a high-quality education? Does he further agree that they should not have to move house or face a system whereby three quarters of children are relegated to the dustbin in secondary modern schools?
      Sir Teddy Taylor: To refer to secondary modern schools as dustbins is an insult. I should like to take the hon. Lady to what she would describe as dustbins. There is no sense in what she says. Basically, she is talking of high-achieving schools. I could take her to them.
      Dame Elaine Kellett-Bowman: Is my hon. Friend aware that the hon. Member for Bath

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      (Mr. Foster), who leads this evening for the Liberal Democrats, took the trouble to go all the way to Lancaster to attend school? He is the only Liberal we have turned out. Does my hon. Friend agree that super, high-achieving schools set an example to other schools and give them something to aim at? That is certainly the position in the area that I represent.
      Sir Teddy Taylor: I hope that that would be the case. What is being said is what we should all love to see. The hon. Member for Barking (Ms Hodge) knows, however, that it cannot and does not happen. When we are in opposition, we sometimes feel that problems will fade away and disappear with the election of a new Government. That is codswallop. I am sure that there are many honourable and sincere members of the Labour party who realise that the problems that we are discussing cannot be resolved by the election of a new Government.
      Let us take a town where there are 50,000 people and one school. The social mix would be achieved there, which is good. In a large borough or town, however, it is not possible to get a good social mix in schools, and it does not happen. We all know that and it is something that we must face.
      Mr. Kilfoyle: Does the hon. Gentleman agree with the Prime Minister that, for the top 20 per cent., an education is on offer in this country that matches anything in the world? Does he further agree that the challenge, in terms of economic prosperity and social cohesion, is to deal properly with the other 80 per cent.? If that is so, how will grammar schools assist those children to make their mark in life?
      Sir Teddy Taylor: The hon. Gentleman should consider the position in Southend and in Northern Ireland. All kids achieve better when there is a grammar school input. I also appeal to him to go to areas such as Tower Hamlets—I do not say this contemptuously—which has been run on the agreeable principles of socialism for years, and where achievement is a national scandal. Of course it would be wonderful to have high achievement in such places, but the fact is that we do not and we cannot. It is tragic and a disaster. If the hon. Gentleman doubts that, he should look at the figures that have just been published on the standards of reading and writing for seven-year-olds. What is happening in those boroughs is tragic.
      9 pm
      Mr. Hawksley: Does my hon. Friend agree that the language of dustbins to describe education for 80 per cent. of children is a disgrace? It is the assumption that those schools will be failures that is the problem. There is no reason why they cannot be good schools. We used to have such schools in Shropshire.
      Sir Teddy Taylor: I wish that Labour Members would be really interested in this subject. They should come to Southend and see the great achievements of our comprehensive schools—which are in the area where I live—such as Shoeburyness county high school and Cecil Jones high school.
      Mrs. Gillan: I thank my hon. Friend for giving way in a powerful and moving speech. Has he had a chance to
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      look at the 1996 performance tables? They show that 15-year-olds in LEA areas with selective schools achieve a higher proportion of five or more GCSEs at grades A to C. Those areas achieve 44.8 per cent., and LEAs without selective schools achieve 40.4 per cent. Does that add to his argument?
      Sir Teddy Taylor: It does add to the argument. When I started out in politics—I mean this in all sincerity—I genuinely found that Labour people tended to be nicer, more meaningful people who were committed to a principle. By comparison, people from other parties did not have that commitment. That applied to education and housing. The tragedy is that those good people in Glasgow introduced policies which, although well intentioned, were damaging to the working class.
      Ms Estelle Morris: How does the hon. Gentleman explain the fact that, since the introduction of comprehensive schools, the number of children achieving five or more passes at GCSE with good grades has gone up from 15 per cent. to more than 40 per cent.? Does he think that that is because of a lowering in the standards of examinations? Does he not realise that that is a sign of real improvement in the standards of so many children who have been educated in the comprehensive system?
      Sir Teddy Taylor: I accept that there has been a gradual rise in overall standards, but I hope that the hon. Lady will examine areas' relative performance, and think about the position of parents and children in some of the worst parts of our cities. This is not a problem for small towns: it is a problem for our cities, and it will not go away. We are denying people opportunities.
      In Southend, we have four grammar schools. Some kids, such as those who live in Shoeburyness, have a long bus journey to school. The Lib-Lab group in the county council—some of whom are my best friends—had a plan to stop free transport for grammar school children. People in Shoeburyness on lower incomes and on income support can no longer send their children to those schools, whereas people who live in big houses find it easier to do so. That is wrong, and terribly unfair.
      Mr. Allan Rogers: I listened carefully to the hon. Gentleman, and it seems to me that he is generalising from specific situations. I was brought up in a coal-mining valley and was the youngest of 12 children. I went to a grammar school, but my older siblings were not able to do so because my parents could not afford it. The standards in the grammar school were such that many people went on to Oxford and Cambridge, became highly qualified and moved up in the professions.
      Many years later, in the same community, with the same people and with the same dedication to education, the comprehensive schools send the same number of children, or even more, to Oxford and Cambridge. I venture to suggest that it is not the type of school or its structure that counts, but parental background, the willingness of people to get involved and the dedication of teachers. If financial support and help is provided, kids will achieve, whatever the system.
      Sir Teddy Taylor: I am encouraged by what the hon. Gentleman said about the schools in his constituency. It is lucky to have him as its Member of Parliament, and

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      I hope that the children will continue to prosper in that way. He described a success story, but I hope that he will consider the deprived areas of Manchester, Birmingham and London, where standards of attainment are appalling, and where children do not have an opportunity to escape.
      If people are in an up-market group, their children can escape, because they can pay for transport to take their children outside the area and thus take advantage of the choices that the Government have provided. But think of the people who simply cannot escape.
      My kids went to council schools in Southend-on-Sea. They were lucky: they went on to grammar schools. They had the advantage of a social mix. It should be remembered that the secondary schools chosen by those living in up-market areas do not have such a social mix. One of the greatest tragedies that I encountered in Glasgow was the existence of what could almost be called ghettos in areas with council housing. That is an appalling situation. People cannot escape from such ghettos, either because of council housing—which, sadly, prevents them from escaping—or because of the lack of educational ability of some kind, in regard to which society is desperately unfair. People may wonder why things are going wrong in so many areas; it is because, unfortunately, a large and increasing number of people are imprisoned in such ghettos, and we must fight that.
      I have spoken for far too long, and I apologise, but Labour Members should think of the children in those ghetto areas. Are we offering them any hope? Labour Members may say, "We will spend a little more, and will organise some special inquiry." The plain fact is, however, that they know that—because of housing policy and the ghettos to which I have referred—they will achieve nothing unless they can give such people some kind of hope. I suggest that giving some of those children the opportunity to go to grammar school gives them hope.
      Mr. Don Foster: I thank the hon. Gentleman for giving way. I know that he is anxious to finish his speech, to which I have listened with considerable interest.
      The hon. Gentleman clearly cares passionately about this issue, but I am confused about one point. He has referred to "inner-city ghetto areas" from which the majority of children are not able to move to the leafy suburbs and the so-called better schools. How can the removal of the 25 per cent. most able pupils from a school in a ghetto area benefit the remaining 75 per cent.? I simply do not see how the 75 per cent. can benefit.
      Sir Teddy Taylor: I am sorry that I have spoken for so long. Perhaps I should not have given way, but I believe that we should think about this important issue.
      Such action can help enormously. There is no hope for anyone if everyone is imprisoned in a school that is in a ghetto. If 25 per cent., 10 per cent. or even 5 per cent. of kids can escape, entirely new circumstances are created: at least some will be able to escape to grammar
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      schools. A stable society is one where there is opportunity; without opportunity, the situation is appalling.
      The hon. Member for Bath (Mr. Foster) seems to think that he is an expert. I am sure that he is, because he wears glasses and looks very wise. If he knows a family living in Tower Hamlets, what will he say to that family? Will he say, "We are going to give you 10 per cent. more money, and we shall try to give you an extra teacher"? He must know that, unless he can provide some of those people with the opportunity of escape, they will continue to have a ghetto mentality.
      I care about these things, because I came from a poor home and went to a school in which many people were in the position that I have described. As I said, when I started out in politics, Labour Members seem to care about things and believe in them, but, tragically, some of the things in which they believe are extremely stupid and damaging for the working class. The working class suffers, and no one gains.
      I am sorry that I have spoken for so long, but I hope that I have persuaded one or two hon. Members to think again, and to realise that what they propose is wrong—that it is bad for the working class, and bad for overall achievement.
      Ms Hodge: I hope that the hon. Member for Southend, East (Sir T. Taylor) will sit through my speech. We listened to his, which was delivered with passion and, I think, sincerity, and I trust that he will listen to Opposition arguments against selection.
      I believe that there is a purpose behind tonight's debate which unites the political parties. We all want to raise educational standards for the children of today, who will become the community and the work force of tomorrow; and we all want to provide opportunity. Where we divide is on the steps that we think are most appropriate to achieve that objective. That is where I part from the hon. Member for Southend, East, but I hope that he will listen to my argument.
      The Government believe that the route to raising standards is through selection. That is where we fundamentally disagree. We are not driven by good intentions alone. We are driven by pragmatic good sense; the Government's approach is driven by dogma and ideology. Because it is so driven, it will fail, even to provide opportunity for more children.
      The Bill misses another opportunity to raise educational standards. I feel sorry for the Secretary of State for Education and Employment. Her professional background is that of a teacher. She spent a large part of her professional working life promoting comprehensive education and closing grammar schools. When she was a member of Norfolk county council, nine grammar schools were closed—the rest of the grammar schools in Norfolk—and she played an active role in the campaign to close the King Edward VII grammar school there. When she became Secretary of State, she spoke to local teachers at a meeting of the National Union of Teachers. When teachers asked her about selection, she said that nothing would change while she was in charge.
      I do not believe that the Secretary of State ever wanted or meant to change the Government's stance on selection. It was forced on her by the Prime Minister. I feel sorry for her, because when she reflects on her period of office

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      as Secretary of State, in a few weeks from now we hope, she will think that she was responsible for introducing nursery vouchers, which have been a complete flop, for bringing back selection—grammar schools—and for introducing selection at the age of five. There is not a lot of which she can be proud in her old age.
      The education issue for Britain is not, as the hon. Member for Southend, East suggested, our failure to achieve high standards for the best pupils; the issue was set out not only by Labour Members, but by members of a Conservative education authority from which the Government Front Bench team sought to distance itself. We had more sense from the authority in its submissions to the Government on both the White Paper and the Bill than we have had from all Ministers during debates in Committee. The authority said:
      "England's long-standing problem is the long tale of under-achievement with the less able."
      We need to pose the question: will selection at 11, or indeed at five, help us to raise standards, not for those who succeed anyway, but for all children, including those working-class children about whom the hon. Member for Southend, East feels so passionately?
      Mr. Win Griffiths: May I draw my hon. Friend's attention to the fact—this must be something of a paradox in the light of what the Government seem to want to do—that it was their own Prime Minister who, a year or two ago, said that we did very well by more able pupils, but that we were failing 80 per cent. of those who attended schools? That is what we must tackle, not the question of the able.
      Ms Hodge: I completely agree. I say to the hon. Member for Southend, East that my children are in inner-city comprehensive schools and are achieving well. They would whatever the structure and irrespective of whether there was selection. When we talk about introducing selection, I remain primarily concerned not for them, because their background and my support as a parent more readily ensures their future, but for precisely those children for whom the hon. Member for Southend, East has expressed concern. Will selection help to deal with that long tale of under-achievement that is often associated with class? No; nor will it increase parental choice, improve schools or raise standards. We know that from information in the league tables that are produced by the Government from GCSE results. I hope that Conservative Members will listen carefully to this. We must learn from those league tables about the impact of selection at 11 so that we may understand what could happen if we introduced selection, as proposed, at the age of five.
      Let us consider the impact of grammar schools on children in one locality to assess how their revival would affect the nation's children. Unfortunately, grammar schools still exist in some areas, enabling us to make a proper informed analysis based on the facts. I gave an example in Committee and shall do so again. The counties of Kent and Hampshire are large and have many secondary schools. Kent has 149 secondary schools and Hampshire has 122. The socio-economic profiles of the two counties are similar.
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      9.15 pm
      The hon. Member for Southend, East shakes his head, but I direct him to the statistics in the Library which show that I am correct. Both counties offer children about the same access to pre-school education, which is often taken as an important ingredient when considering later performance. Hampshire organises its secondary education through comprehensives while Kent has a mixture of grammar schools and schools which inevitably become secondary modern as the brightest children are creamed off along what the hon. Member for Southend, East described as an escape route to grammar schools.
      As the Minister has said, both counties performed fairly well in the league tables—as they should, given their socio-economic intake—but the difference in outcome between the two counties is stark. Hampshire, with its comprehensive schools, only eight schools had 25 per cent. or fewer pupils gaining five GCSEs at grades A to C, taking that as the level below which we would not want to drop. In Kent, which has a mixture of grammar and secondary modern schools, 49 schools had 25 per cent. or fewer pupils gaining five GCSEs at grades A to C. The children come from similar backgrounds and the areas are similar, but in Kent a third of the schools perform badly while in Hampshire only 6.5 per cent. of the schools have a poor outcome. That cannot be explained by saying that Kent children are less able, nor can it be said that the teachers are less committed or competent. The only difference between the two counties is that Kent has grammar schools while Hampshire does not.
      The story told by the league tables goes on. Six schools in Kent, two of which, interestingly enough, are grant maintained, have worse results than the Ridings school. Seven schools produce worse results than the worst school in Hackney, and 11 have results that are worse than the worst school in Islington. In 25 schools, the results are worse than the worst school in my constituency of Barking. The Government's own league tables show that selective education not only fails to improve standards, but may damage overall standards.
      Mrs. Gillan: Is the hon. Lady able to state the percentages of statemented children or those requiring special educational needs in those schools?
      Ms Hodge: During the Bill's Committee stage, the Minister of State quite properly said that children's backgrounds should not be relevant to their results at 16. Our goal should be for all children, whatever their background, to achieve certain levels. I agree with the Minister of State that we should not expect children from a particular background, who start with particular skills and qualifications, to achieve better results than others. We want all our children to achieve.
      The hon. Member for Southend, East needs to appreciate that the character of one school will affect the character of other schools in an area. Very able pupils do well in both of the counties that I mentioned, but excluded students suffer where grammar schools exist. The impact of creaming off a few children to a few schools has an enormous impact on other schools.
      We are not driven by dogma, we are driven by the facts provided by the Government. We ignore those facts at our peril. Selection closes doors. It does not open them, as

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      Conservative Members have said in this debate. Selection entrenches failure, and it does not encourage success. Selection lessens opportunity; it does not enhance it.
      Mr. Spearing: Does my hon. Friend realise that many people who have taught in both grammar and comprehensive schools are acutely aware that, particularly in the 1950s and 1960s, bad grammar schools concentrated only on the notionally top third of pupils and that the remaining pupils suffered and were effectively sacrificed? In comprehensive schools, however, staff attempt to fit the education that they can provide to all the needs of all the pupils. I think that my hon. Friend will agree that the Prime Minister would agree with that analysis and description.
      Ms Hodge: The Prime Minister might indeed agree with that analysis. My hon. Friend raises another important issue, which is that within schools people are assessed as failures or successes. Even within grammar schools—as those of us who attended them know—children at the bottom are written off. Let us think about that practice, because that is what new clause 9 is about. Let us think about what we would be doing to children at five if we started to classify them as failures because they did not pass a test to get them into the school of their choice. Is that a sensible way in which to make progress? Can we really select children at five according to their ability? Are we really going to write off little children at the very start of their statutory school career because they have failed to pass an initial test?
      Mr. Gunnell: Does my hon. Friend agree that we will be writing off children under the age of five years if we do not exclude baseline assessment—which is the purpose of the new clause? Unless we exclude baseline assessments, we will be writing off children when they are in nursery school, and a selection process will be introduced almost as children first encounter the educational system. The test is meant to be diagnostic and to indicate children's potential, perhaps their aptitude and something about them; it should certainly not be used to penalise them in later life. The new clause has been designed to remove that penalty.
      Ms Hodge: I thank my hon. Friend for his intervention, because I had planned to deal with just that point. As hon. Members may or may not know, I have taken a particular interest in early years education and in the development of the nursery voucher scheme. I have also been extremely critical of the desirable outcomes that were set as standards—which have become a curriculum, despite the original intention—and which children are expected to achieve by the time they finish their education under the voucher scheme.
      Two school settings failed to meet the criteria for the pilot stage of the nursery voucher scheme. One was a Rudolf Steiner school. Rudolf Steiner schools do not teach words or mathematical concepts, and practise the philosophy that it is wrong to teach children numeracy or literacy skills before the age of six. I do not agree with that view, but those schools are perfectly entitled to it. Children who attend Rudolf Steiner schools often perform as well as other children later on.
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      The children at the Rudolf Steiner school failed to produce the desirable outcome that the Government had set as a mechanism for assessing whether schools should be included in the nursery voucher scheme, so those children were deemed to have failed. That is absurd. In no way could that test judge whether the children had potential, were bright or were able to cope with a sophisticated curriculum and achieve better results than children from elsewhere, and it demonstrates the absurdity of any test at five to start selecting children and placing them in a selective primary grammar school. Let us be clear: that is what the Government mean when they talk about selection.
      The Government have been eager to proclaim that all their reforms extend choice. Opposition Members have consistently said that the choice is for the school and not for the child. I remind the House of one fact that reinforces our thesis that the Government's reforms provide limited choice—the increased number of appeals. In 1989–90, there were 21,000 appeals by parents against the places that their children were given. By 1994–95, the figure had more than doubled to 54,400 because fewer parents were getting the choice that they wanted.
      Standards in education are a central concern of all politicians and employers; they are an obsession for most of us who are parents of school-age children. We all worry. The notion that our child might gain access to better opportunities in a school that selects may seem superficially attractive, but never has an education debate been based on so much political prejudice and so little objective evidence.
      Labour is right to focus on standards. We cannot run away from the challenge, and we cannot admit defeat before we have tried. Britain is wrong to have neglected standards for so long. We all want comprehensive primary and secondary schools that are so good that no parent would deny their child the privilege of attending them. The answer does not lie in bringing back selection, but in a single-minded determination to raise standards in all our schools for all our children.
      Mr. Spearing: Most teachers, whatever their political persuasion, would agree with what my hon. Friend the Member for Barking (Ms Hodge) has just said, but I should like briefly to refer to the speech of the hon. Member for Southend, East (Sir T. Taylor).
      All hon. Members, whatever their political persuasion or their views on a particular matter, respect the hon. Gentleman for a variety of personal reasons, but his better nature was forgotten, perhaps unconsciously, in the thesis of his speech. The hon. Gentleman, perhaps from personal experience or from observing certain parts of the country—not Tower Hamlets, to which I shall refer in a minute—spoke about escape. He justified the existence of a system of selection as the means of escape, implying that without it there would be no escape—prisoners would be in chains; families would be in chains. His imagery gave away the misapprehension from which he suffers.
      Despite his political viewpoint, I think that the hon. Gentleman agrees that we do not want social prisons—we do not want ghettos or areas of deprivation. We want to stop the spread of such areas and, if possible, to eliminate them. What about those who do not escape the prison? He might look to the legislation and philosophy of his party. Unfortunately, most of the legislation of the past

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      13 years—which he, alas, has supported—has increased the size of the social enclaves, or prisons, that he described and made it much more difficult for anybody to operate in them, thereby making the problem worse. His solution was to enable some people to escape from a predicament in which they should not be in the first place.
      9.30 pm
      I represent a constituency adjacent to the London borough of Tower Hamlets. I openly invite the hon. Gentleman to come to any of the secondary comprehensive schools in my constituency, just a mile or two from Tower Hamlets. We have multi-cultural education of a high standard—although no doubt the buildings could be better. I invite him to come to any of the four schools in my constituency, because I think that he would then revise the speech that he has just made.
      Sir Teddy Taylor: I have great respect for the hon. Gentleman and I am sure that his local schools are very good. Does he not think that it makes a difference to the morale of a whole street if one or two children are attending a grammar school? People have a chance to say, "Look, there is one of the kids along the road who has broken out. My kid could do the same."
      Mr. Spearing: The philosophy is not one of breaking out from an enclosed prison, but of making use of the facilities that the teachers and the community, as well as the borough council, if it is allowed, make available. The hon. Gentleman's assumption may have been true 10, 20 or 30 years ago, particularly in east London, but that situation is now much diminished—I believe that it has largely disappeared.
      We have a rather strange debate. I should like to refer to the precise wording of the Bill. I see that the Under-Secretary has departed. I inform the Minister of State, who has now arrived—I am pleased to see that the Secretary of State herself has also arrived at this interesting stage of the debate—that at the beginning of this important debate on selection the Under-Secretary declined to give the Government point of view in resisting the new clause. The new clause negates and limits the purposes of the clauses that relate to the issues that we are considering.
      The explanatory memorandum of the Bill as published for Second Reading—not the Bill as we now have it—said:
      "Clauses 32 to 35 provide for the introduction of compulsory baseline assessment of children at primary schools. That assessment is to be carried out in accordance with an accredited baseline assessment scheme."
      Anybody reading that—I think that I must include myself—thought, "Oh. This is a tightening up of what we have already got about assessment of pupils and how they are getting on and centralising it to a much greater degree." The words "selection" and "admission" do not appear in the alleged explanatory and financial memorandum.
      I suggest, therefore, that the absence of those words and the inclusion of what the Secretary of State was alleged to have said on Second Reading about selection for entry to primary school by assessment show that the Government were being not just economical with the truth in the explanatory memorandum but downright misleading. I am
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      sorry that the Secretary of State is doing exactly what the former right hon. Member for Finchley used to do. When a good point was being made by an Opposition Member, she engaged herself in conversation and pretended not to listen. I am sorry that the Secretary of State is displaying uncustomary discourtesy on this point. Perhaps she will read our debate in Hansard; I commend that point to her.
      Mr. Andrew Mackinlay: My hon. Friend might as well talk to a rice pudding.
      Mr. Spearing: I am not sure about a rice pudding; the Bill is certainly not very wholesome.
      I now refer to clause 31 and I may get some enlightenment from the Secretary of State as I quote it. I would be glad if she intervened on this point. Clause 31 says:
      "baseline assessment scheme' means a scheme designed to enable pupils at a maintained primary school to be assessed for the purpose of assisting the future planning of their education".
      As my hon. Friend the Member for Morley and Leeds, South (Mr. Gunnell) said earlier, the scheme appears to be diagnostic. It is a means, albeit compulsory, whereby the needs of the pupil will be assessed
      "for the purpose of assisting the future planning of their education".
      Any decent school and any decent education system does that all the time. Indeed, it is one of the primary jobs of a teacher to assess the needs of pupils.
      We then come to the most extraordinary part of clause 31. As the Secretary of State has, unfortunately, departed, I hope that the Minister of State will stand in for her and answer my question. Clause 31 refers to
      "the future planning of their education and the measurement of their future educational achievements".
      That phrase is extraordinary. The Bill refers to children's future achievements.
      The word "achievements" may include GCSEs or other examinations; the achievements may be non-examinable, but some non-examinable achievements are important. As an ex-teacher, I used to say to people, "What does the O-level say? What does the GCSE say? It says that you are good at passing O-levels or GCSEs, but it does not tell you very much more."
      Mrs. Gillan: I do not know whether the hon. Gentleman has had an opportunity to read the report of the Bill's Committee stage. I draw his attention especially to column 554, where the use of the word "future" was discussed at some length as a result of an amendment moved by the hon. Member for Barking (Ms Hodge). I hope that that will assist the hon. Gentleman in his search for the meaning of the word "future".
      Mr. Spearing: Alas, it does not. The Committee debate assists me in understanding the illogicality and educational naivety of the Conservative party. It is clear that my hon. Friend the Member for Barking—she may wish to contribute to this brief and useful exchange—tabled an amendment to try to clarify the extraordinary statement about the measurement of future educational achievements. Perhaps the Minister means that the scheme may assist in predicting future educational achievements, but the Bill does not use the word "predict"; it uses the word "measurement". Measurement can refer only to what exists. I suggest to the Minister that

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      the wording of the clause is nonsense. It cannot be sustained in fact or in educational criteria. What we have here is the basis of provision for entry to primary school by selection, and we had not heard very much on that subject until tonight. Unless one had heard the speeches tonight or the debate in Committee, one would not be able to take that meaning from reading the Bill, because the provisions of the Bill are gobbledegook. They do not make sense educationally or practically and I suggest to the Under-Secretary that she is starting something that is completely wrong.
      I shall conclude on one fundamental point of educational philosophy with which I am sure the Under-Secretary, and any teacher who happens to be in the House, will agree. Primary schools have always been comprehensive schools that meet mainstream educational need for the whole local area. If the Under-Secretary does what she has said she will do, each primary school will be turned into a selective school—a competitive racetrack for the meritocratic stakes. That is not the purpose of education and it should not be included in the Bill.
      Mr. Gunnell: I shall comment briefly. Government amendment No. 65 is clearly about selection for primary schools. In Committee, I asked the Minister of State whether he could name a reputable educational organisation or school that had told the Department that it wanted selection in primary schools. He could not do so. He said:
      "In a sense, it does not matter how many schools have asked for the provision; we are giving them the opportunity, if they want to take it. Perhaps by giving them that opportunity, we may stimulate more interest—I do not know."—[Official Report, Standing Committee D, 26 November 1996; c. 102.]
      He implied that there was not much interest in the issue any way.
      The Minister was unable to name anyone, apart from members of the Conservative party, who had decided that selection in primary schools would aid them in the future. He could not name anybody who had requested it—certainly not anyone with an educational reputation. We ask, therefore, why the Government, having set out their stall on parental choice, are so anxious to remove parental choice of primary schools.
      The reasons why people choose primary schools are different from the reasons why they want a say and a choice in secondary schools. Fundamentally, parents choose a primary school because of its location in relation to their homes. The reasons are geographical; proximity to their homes is important. I handled an appeal for parents whose choice of school was dictated by their responsibilities as parents of their other children and as working parents. Selection of primary schools is usually made on that basis.
      It was not until the debate in Committee that we realised that the Government intended to use baseline assessment for selection. It is clear that they are trying to use baseline assessment for purposes for which it was not designed. They are trying to use it as a basis for diagnosing achievement or aptitude.
      The hon. Member for Southend, East (Sir T. Taylor), who sincerely expressed his anxiety that children from what he called a working-class ghetto should get on and
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      get out, felt that such a selection system would help them. It would have absolutely the opposite effect because it would reduce the age at which a child was selected and make it almost certain that those who, to use his word, were ghettoised would not pass—since selection means pass in this instance—or be selected. If the background of such children is restricted, as he suggests, it is very unlikely that they will be selected.
      I am greatly concerned about how selection will work. The most likely outcome is that parental influence will have a rapid effect on selection. Primary school children will be selected on the basis of the pressure that their parents are able to bring to bear.
      I recognise that there is no time for further debate of the issue, but I hope that the Minister will cite some reputable organisation or school, not simply the Conservative party, from which pressure has come for selection at primary level. My hon. Friend the Member for Barking (Ms Hodge) clearly and most elegantly described why selection is to the disadvantage of our children. Such selection is fundamentally wrong. If the Government are seriously proposing it as a way forward, it will be disastrous for our children.
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      Mrs. Gillan: We have had an extremely long debate on this group of amendments, which I think has generated more heat than light. I thank my hon. Friends the Members for Rugby and Kenilworth (Mr. Pawsey), for Halesowen and Stourbridge (Mr. Hawksley), for Northampton, North (Mr. Marlow) and for Lancaster (Dame E. Kellett-Bowman), all of whom made timely and pertinent interventions. I particularly thank my hon. Friend the Member for Southend, East (Sir T. Taylor) who, as I think Members on both sides of the House would agree, made an extremely passionate speech based on his own experience.
      The group of amendments includes a Government amendment. In Committee, I undertook to table an amendment to ensure that it is the head teacher who selects the baseline assessment scheme to be used by the school. Amendment No. 65 does that. I must emphasise that there is agreement with our prime aim to ensure that every school has access to and uses a baseline assessment scheme that meets the criteria of the proposed national framework.
      Amendment No. 65 acknowledges that the decision on which baseline assessment scheme to select is a matter of professional expertise and views on the content and style of schemes likely to be available and appropriate for the school. Such expertise lies with the head teacher, who is thus best placed to judge which scheme will be most suitable.
      The Government however recognise how helpful consultation can be when formulating a decision—hence the requirement for the head teacher to consult the governing body when considering which scheme to select. The governing body's role is formally to adopt the scheme selected by the head teacher. That is consistent with the existing division of responsibilities between the governing body and the head teacher on school-level policy decisions.
      Amendment No. 65 also provides for the rare occasion when a head teacher is unable to select a scheme, perhaps because of illness. It adds a contingent provision for the governing body to carry out the duty if the head teacher is unable to select a scheme within a reasonable time.

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      The amendment puts back—with the agreement, I know, of Opposition Members—the requirement for schools maintained by a local education authority to consider the scheme selected by their authority before deciding which scheme to select for their own purposes. This recognises that LEAs have a role to play here, and that primary schools do look to their LEAs for advice. It reflects what I am sure will happen in practice, but it does no harm to provide for it on the statute book.
      Turning to other matters, I strongly resist new clause 9 and amendments Nos. 50 and 51. We have designed baseline assessment to inform teachers about what children can do on entry to school. That information will enable teachers to match work to children's needs and abilities and, over time, will enable value added to be measured.
      There has never been any intention that the information derived from baseline assessment could be used for selection purposes. The Bill provides explicitly that the assessment will take place after children have been enrolled at school. If a pupil then transfers to another school, his baseline assessment details will be transferred to the new school. However, that will not happen until after it is known to which school the pupil has transferred. Therefore, it will be impossible for schools to select—or deselect—pupils on the basis of baseline assessment.
      There are a variety of uses to which information taken from the assessments might be put—I have already mentioned the example of measuring value added. Schools might want to use the information to target resources and, of course, it will indicate where further assessment of special educational needs might be required—an issue that was discussed in Committee. The professional use by teachers of baseline assessment information is not something that we should presume to prescribe or inhibit.
      Mr. Jamieson: The hon. Lady said that baseline assessment was not to be used by primary schools for selection, so why does she not accept the amendment?
      Mrs. Gillan: I do not consider that it is necessary to put that on the face of the Bill. If the hon. Gentleman continues to listen to what I have to say, he will deduce my reasons for that.
      The idea that statutory baseline assessment could be used for selection purposes is a red herring. The important need now is not to create confusion among teachers or parents. I can only hope that the hon. Member for Birmingham, Yardley (Ms Morris) now sees fit to withdraw new clause 9 and that she does not press the associated amendments Nos. 50 and 51.
      Much has been made in the debate of the issue of primary selection. At present, the regime governing selective admissions is exactly the same for primary schools as it is for secondary schools. Admission authorities would have to publish statutory proposals if the proportion of pupils they wanted to admit by selection would amount to a significant change in character of the school. In the opinion of my right hon. Friend the Secretary of State, selecting up to 15 per cent. of a school's intake, whether the school is primary or secondary, does not constitute a significant change of character.
      The Bill sets out a new statutory baseline of 20 per cent. for selective admissions. We believe that that should apply to primary as well as to secondary schools, but we
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      do not believe that many primary schools will wish to select pupils by general ability. However, a few might want to select by aptitude for a particular subject, such as music. In any case, we believe that primary schools should have the option of selecting a proportion of their pupils without central approval, as they have now, and that the lowest of the new thresholds should therefore apply to them. That is what the Bill gives them.
      It will continue to be for admission authorities to determine the method that they use to assess ability or aptitude. We do not intend to tie admission authorities' hands in that respect. Therefore, if an admission authority decided to use the statutory baseline assessment materials being produced by SCAA or assessments from accredited baseline assessment schemes for an earlier pre-entry assessment, there is nothing to prevent the authority from doing so.
      I repeat: there has never been any intention that the information derived from statutory baseline assessment could be used for selection purposes. Statutory baseline assessment will take place after children have been enrolled at school.
      Tonight, in debating these amendments again, we have heard the Opposition parties stand fair and square against selection; against choices for parents. Where will they stop? Will they abolish selection by religious commitment? What about selection by home-school agreement or selection by mortgage? Parents are prepared to pay a lot of money to live in the catchment areas of good schools. Would the Opposition prevent people from choosing where to live?
      I reject all the arguments that have been made by the Opposition tonight. I commend Government amendment No. 65 and reject new clause 9.
      Ms Estelle Morris: What a mess. One of the prime parts of the Bill before us is to extend primary selection, and the Under-Secretary of State has just said that she does not believe that anyone would use it anyway. I should have thought that, in the dying days of a Government, the Minister could have used legislative time to tackle some of the problems that confront primary school children and primary schools instead of passing a measure that, by her own admission, she does not believe that schools welcome, need or will want to use.
      What a mess on baseline assessment. The only reason that the Opposition were forced to table amendments and new clauses today was that the Minister of State, the hon. Member for—
      Mr. Forth: Mid-Worcestershire.
      Ms Morris: The hon. Member for—at the moment—Mid-Worcestershire (Mr. Forth) was engaged in an exchange in Committee in which he made it quite clear that
      "the concept and practice of baseline assessment is now widely agreed as being achievable, practical and desirable. To the extent that this is so … a school should be able to make an assessment of a child, even at the age of five."—[Official Report, Standing Committee D. 26 November 1996; c. 95–96.]
      That was in the context of my asking him whether he would say that under no circumstances would baseline investment be used as a means of allowing selective entry at primary school level. As a result of his inadequacy in

      119
      explaining the Government position, his confusion and his inability to answer the question, "How will schools select?" we tabled new clause 9.
      Let us get this straight: the Under-Secretary of State agrees with what new clause 9 says, but she refuses to vote for it. What sort of Government are prepared to leave legislation on the statute book that confuses parents and misleads teachers because of the remarks of the Minister of State, and ignore the opportunity to put the record straight? As a result of the confusion among Ministers, there is only one may of making it clear that baseline assessment must not and will not be used for selective admission of children to primary school, and that is to put new clause 9 and amendments Nos. 50 and 51 on the face of the Bill.
      Mrs. Gillan rose—
      Ms Morris: I am sorry; it is too late. The Under-Secretary of State had her chance and failed to make Government policy clear.
      The new clause is important, not only because of what it does to clarify primary selection, but because it will save baseline assessment from the confusion that the Government have thrown it into. It is a good scheme—a good measure. It has the support of the Opposition parties, and it should never have been mixed up with techniques of primary selection. The Under-Secretary loses the chance to make the record clear.
      I want to add some comments to those already made about the contribution by the hon. Member for Southend, East (Sir T. Taylor). He spoke with passion and he is genuinely concerned about too many children in this country who do not achieve and who lose opportunity. However, the world has moved on from the days when we had the 11-plus. In those days, we had an economy that could run if we only developed the skills of the few. We now have an economy that needs all adults to raise their standards and reach their potential.
      The problem with selection is that it labels children failures. Has anyone ever heard a child say, "I passed for secondary modern"? What happens with the 11-plus is that one passes for grammar school or fails the 11-plus. The 11-plus institutionalises those low expectations. I agree with the hon. Member for Southend, East that mere is a real challenge to raise standards in some schools throughout the country; but returning to the days when we labelled children failures is not the way to meet that challenge. The way is to face up to the challenge of ensuring that every school raises every pupil's ability, so that we no longer have to rely on an escape route for the few.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 257, Noes 303.

      Division No. 53]

      [10 pm

      AYES

      Abbott, Ms Diane

      Anderson, Donald (Swansea E)

      Adams, Mrs Irene

      Ashdown, Paddy

      Ainger, Nick

      Ashton, Joseph

      Ainsworth, Robert (Cov'try NE)

      Austin-Walker, John

      Allen, Graham

      Banks, Tony (Newham NW)

      Alton, David

      Barnes, Harry

      120

      Barron, Kevin

      Garrett, John

      Battle, John

      George, Bruce

      Bayley, Hugh

      Gerrard, Neil

      Beckett, Mrs Margaret

      Gilbert, Dr John

      Beith, A J

      Godman, Dr Norman A

      Benn, Tony

      Godsiff, Roger

      Bennett, Andrew F

      Golding, Mrs Llin

      Benton, Joe

      Gordon, Ms Mildred

      Bermingham, Gerald

      Graham, Thomas

      Berry, Roger

      Griffiths, Nigel (Edinburgh S)

      Betts, Clive

      Griffiths, Win (Bridgend)

      Blunkett, David

      Grocott, Bruce

      Boateng, Paul

      Gunnell, John

      Bradley, Keith

      Hain, Peter

      Bray, Dr Jeremy

      Hall, Mike

      Brown, Nicholas (Newcastle E)

      Hanson, David

      Bruce, Malcolm (Gorton)

      Hardy, Peter

      Burden, Richard

      Harman, Ms Harriet

      Byers, Stephen

      Harvey, Nick

      Cabom, Richard

      Heppell, John

      Callaghan, Jim

      Hill, Keith (Streatham)

      Campbell, Mrs Anne (C'bridge)

      Hinchliffe, David

      Campbell, Menzies (Fife NE)

      Hodge, Ms Margaret

      Campbell, Ronnie (Blyth V)

      Hoey, Kate

      Campbell-Savours, D N

      Hogg, Norman (Cumbemauld)

      Canavan, Dennis

      Home Robertson, John

      Cann, Jamie

      Hood, Jimmy

      Chidgey, David

      Hoon, Geoffrey

      Chisholm, Malcolm

      Howarth, Alan (Stratf'd-on-A)

      Church, Ms Judith

      Howarth, George (Knowsley N)

      Clapham, Michael

      Howells, Dr Kim

      Clarke, Eric (Midlothian)

      Hoyle, Doug

      Clelland, David

      Hughes, Kevin (Doncaster N)

      Clwyd, Mrs Ann

      Hughes, Robert (Ab'dn N)

      Coffey, Ms Ann

      Hughes, Roy (Newport E)

      Cohen, Harry

      Hughes, Simon (Southwark)

      Connarty, Michael

      Hutton, John

      Cook, Robin (Livingston)

      Illsley, Eric

      Corbyn, Jeremy

      Ingram, Adam

      Corston, Ms Jean

      Jackson, Ms Glenda (Hampst'd)

      Cousins, Jim

      Jackson, Mrs Helen (Hillsborough)

      Cox, Tom

      Jamieson, David

      Cunliffe, Lawrence

      Janner, Greville

      Cunningham, Jim (Cov'try SE)

      Jenkins, Brian D (SE Staffs)

      Cunningham, Dr John

      Jones, Barry (Alyn & D'side)

      Dalyell, Tam

      Jones, Ieuan Wyn (Ynys Môn)

      Darling, Alistair

      Jones, Dr L (B'ham Selly Oak)

      Davidson, Ian

      Jones, Martyn (Clwyd SW)

      Davies, Bryan (Oldham C)

      Jones, Nigel (Cheltenham)

      Davies, Chris (Littleborough)

      Jowell, Ms Tessa

      Davies, Denzil (Llanelli)

      Kaufman, Gerald

      Davies, Ron (Caerphilly)

      Keen, Alan

      Denham, John

      Kennedy, Charles (Ross C & S)

      Dewar, Donald

      Kennedy, Mrs Jane (Broadgreen)

      Dixon, Don

      Khabra, Piara S

      Dobson, Frank

      Kilfoyle, Peter

      Donohoe, Brian H

      Lewis, Terry

      Dowd, Jim

      Liddell, Mrs Helen

      Dunwoody, Mrs Gwyneth

      Litherland, Robert

      Eastham, Ken

      Lloyd, Tony (Stretf'd)

      Ennis, Jeff

      Loyden, Eddie

      Etherington, Bill

      McAllion, John

      Evans, John (St Helens N)

      McAvoy, Thomas

      Fatchett, Derek

      McCartney, Ian (Makerf'ld)

      Faulds, Andrew

      Macdonald, Calum

      Field, Frank (Birkenhead)

      McFall, John

      Fisher, Mark

      McKelvey, William

      Flynn, Paul

      Mackinlay, Andrew

      Foster, Derek

      McLeish, Henry

      Foster, Don (Bath)

      McMaster, Gordon

      Foulkes, George

      McNamara, Kevin

      Fraser, John

      MacShane, Denis

      Fyfe, Mrs Maria

      McWilliam, John

      Galbraith, Sam

      Madden, Max

      Galloway, George

      Maddock, Mrs Diana

      Gapes, Mike

      Mahon, Mrs Alice

      121

      Marek, Dr John

      Ross, Ernie (Dundee W)

      Marshall, David (Shettleston)

      Rowlands, Ted

      Marshall, Jim (Leicester S)

      Sedgemore, Brian

      Martin, Michael J (Springburn)

      Sheerman, Barry

      Martlew, Eric

      Sheldon, Robert

      Maxton, John

      Simpson, Alan

      Meacher, Michael

      Skinner, Dennis

      Meale, Alan

      Smith, Andrew (Oxford E)

      Michael, Alun

      Smith, Chris (Islington S)

      Milburn, Alan

      Smith, Llew (Blaenau Gwent)

      Miller, Andrew

      Snape, Peter

      Mitchell, Austin (Gt Grimsby)

      Soley, Clive

      Moonie, Dr Lewis

      Spearing, Nigel

      Morgan, Rhodri

      Spellar, John

      Morley, Elliot

      Squire, Ms R (Dunfermline W)

      Morris, Ms Estelle (B'ham Yardley)

      Steinberg, Gerry

      Morris, John (Aberavon)

      Stevenson, George

      Mudie, George

      Stott, Roger

      Mullin, Chris

      Strang, Dr Gavin

      Sutcliffe, Gerry

      Murphy, Paul

      Taylor, Mrs Ann (Dewsbury)

      Nicholson, Miss Emma (W Devon)

      Taylor, Matthew (Truro)

      Oakes, Gordon

      Thompson, Jack (Wansbeck)

      O'Brien, Mike (N Warks)

      Thumham, Peter

      O'Brien, William (Normanton)

      Timms, Stephen

      Olner, Bill

      Tipping, Paddy

      O'Neill, Martin

      Touhig, Don

      Orme, Stanley

      Trickett, Jon

      Pearson, Ian

      Turner, Dennis

      Pendry, Tom

      Tyler, Paul

      Pickthall, Colin

      Vaz, Keith

      Pike, Peter L

      Walker, Sir Harold

      Pope, Greg

      Walley, Ms Joan

      Powell, Sir Raymond (Ogmore)

      Wardell, Gareth (Gower)

      Prentice, Mrs B (Lewisham E)

      Wareing, Robert N

      Prentice, Gordon (Pendle)

      Watson, Mike

      Prescott, John

      Wicks, Malcolm

      Primarolo, Ms Dawn

      Williams, Alan (Swansea W)

      Purchase, Ken

      Williams, Alan W (Carmarthen)

      Quin, Ms Joyce

      Wilson, Brian

      Radice, Giles

      Winnick, David

      Raynsford, Nick

      Wise, Mrs Audrey

      Reid, Dr John

      Worthington, Tony

      Rendel, David

      Wray, Jimmy

      Robertson, George (Hamilton)

      Wright, Dr Tony

      Roche, Mrs Barbara

      Rogers, Allan

      Tellers for the Ayes:

      Rooker, Jeff

      Ms Angela Eagle and

      Rooney, Terry

      Mr. John Cummings.

      NOES

      Ainsworth, Peter (E Surrey)

      Boswell, Tim

      Aitken, Jonathan

      Bottomley, Mrs Virginia

      Alexander, Richard

      Bowden, Sir Andrew

      Alison, Michael (Selby)

      Bowis, John

      Allason, Rupert (Torbay)

      Boyson, Sir Rhodes

      Amess, David

      Brandreth, Gyles

      Arbuthnot, James

      Brazier, Julian

      Arnold, Jacques (Gravesham)

      Bright, Sir Graham

      Ashby, David

      Brooke, Peter

      Atkins, Robert

      Brown, Michael (Brigg Cl'thorpes)

      Atkinson, David (Bour'mth E)

      Browning, Mrs Angela

      Atkinson, Peter (Hexham)

      Bruce, Ian (S Dorset)

      Baker, Kenneth (Mole V)

      Budgen, Nicholas

      Baldry, Tony

      Burns, Simon

      Banks, Matthew (Southport)

      Burt, Alistair

      Banks, Robert (Harrogate)

      Butcher, John

      Bates, Michael

      Butler, Peter

      Batiste, Spencer

      Carlisle, John (Luton N)

      Bellingham, Henry

      Carlisle, Sir Kenneth (Linc'n)

      Bendall, Vivian

      Carrington, Matthew

      Beresford, Sir Paul

      Carttiss, Michael

      Biffen, John

      Cash, William

      Body, Sir Richard

      Channon, Paul

      Bonsor, Sir Nicholas

      Chapman, Sir Sydney

      Booth, Hartley

      Churchill, Mr

      122

      Clappison, James

      Hayes, Jerry

      Clark, Dr Michael (Rochf'd)

      Heald, Oliver

      Clarke, Kenneth (Rushcliffe)

      Heath, Sir Edward

      Clifton-Brown, Geoffrey

      Heathcoat-Amory, David

      Coe, Sebastian

      Hendry, Charles

      Colvin, Michael

      Heseltine, Michael

      Congdon, David

      Hicks, Sir Robert

      Conway, Derek

      Higgins, Sir Terence

      Cope, Sir John

      Hill, Sir James (Southampton Test)

      Cormack, Sir Patrick

      Hogg, Douglas (Grantham)

      Couchman, James

      Horam, John

      Cran, James

      Hordern, Sir Peter

      Currie, Mrs Edwina

      Howell, David (Guildf'd)

      Curry, David

      Howell, Sir Ralph (N Norfolk)

      Davies, Quentin (Stamf'd)

      Hughes, Robert G (Harrow W)

      Davis, David (Boothferry)

      Hunt, David (Wirral W)

      Day, Stephen

      Hunt, Sir John (Ravensb'ne)

      Deva, Nirj Joseph

      Hunter, Andrew

      Devlin, Tim

      Hurd, Douglas

      Dicks, Terry

      Jack, Michael

      Dorrell, Stephen

      Jackson, Robert (Wantage)

      Douglas-Hamilton, Lord James

      Jenkin, Bernard (Colchester N)

      Dover, Den

      Jessel, Toby

      Duncan, Alan

      Jones, Gwilym (Cardiff N)

      Duncan Smith, Iain

      Jones, Robert B (W Herts)

      Dunn, Bob

      Kellett-Bowman, Dame Elaine

      Dykes, Hugh

      Key, Robert

      Eggar, Tim

      King, Tom

      Elletson, Harold

      Kirkhope, Timothy

      Emery, Sir Peter

      Knapman, Roger

      Evans, David (Welwyn Hatf'ld)

      Knight, Mrs Angela (Erewash)

      Evans, Jonathan (Brecon)

      Knight Greg (Derby N)

      Evans, Nigel (Ribble V)

      Knight, Dame Jill (Edgbaston)

      Evans, Roger (Monmouth)

      Knox, Sir David

      Evennett, David

      Kynoch, George

      Faber, David

      Lait, Mrs Jacqui

      Fabricant, Michael

      Lang, Ian

      Fenner, Dame Peggy

      Lawrence, Sir Ivan

      Field, Barry (Isle of Wight)

      Legg, Barry

      Fishburn, Dudley

      Leigh, Edward

      Forman, Nigel

      Lennox-Boyd, Sir Mark

      Forsyth, Michael (Stirling)

      Lester, Sir Jim (Broxtowe)

      Forth, Eric

      Lidington, David

      Fowler, Sir Norman

      Lilley, Peter

      Fox, Dr Liam (Woodspring)

      Lloyd, Sir Peter (Fareham)

      Fox, Sir Marcus (Shipley)

      Lord, Michael

      Freeman, Roger

      Luff, Peter

      French, Douglas

      Lyell, Sir Nicholas

      Fry, Sir Peter

      MacGregor, John

      Gale, Roger

      MacKay, Andrew

      Gallie, Phil

      Maclean, David

      Gardiner, Sir George

      McLoughlin, Patrick

      Garel-Jones, Tristan

      McNair-Wilson, Sir Patrick

      Garnier, Edward

      Madel, Sir David

      Gill, Christopher

      Maitland, Lady Olga

      Gillan, Mrs Cheryl

      Major, John

      Goodlad, Alastair

      Malone, Gerald

      Goodson—Wickes, Dr Charles

      Mans, Keith

      Gorman, Mrs Teresa

      Marland, Paul

      Gorst, Sir John

      Marlow, Tony

      Grant Sir Anthony (SW Cambs)

      Marshall, John (Hendon S)

      Greenway, Harry (Ealing N)

      Marshall, Sir Michael (Arundel)

      Greenway, John (Ryedale)

      Martin, David (Portsmouth S)

      Griffiths, Peter (Portsmouth N)

      Mates, Michael

      Gummer, John

      Mawhinney, Dr Brian

      Hague, William

      Mellor, David

      Hamilton, Sir Archibald

      Merchant, Piers

      Hamilton, Neil (Tatton)

      Mitchell, Andrew (Gedling)

      Hampson, Dr Keith

      Mitchell, Sir David (NW Hants)

      Hanley, Jeremy

      Moate, Sir Roger

      Hannam, Sir John

      Monro, Sir Hector

      Hargreaves, Andrew

      Montgomery, Sir Fergus

      Harris, David

      Moss, Malcolm

      Haselhurst, Sir Alan

      Needham, Richard

      Hawkins, Nick

      Nelson, Anthony

      Hawksley, Warren

      Neubert, Sir Michael

      123

      Newton, Tony

      Stanley, Sir John

      Nicholls, Patrick

      Steen, Anthony

      Nicholson, David (Taunton)

      Stephen, Michael

      Norris, Steve

      Stern, Michael

      Onslow, Sir Cranley

      Stewart, Allan

      Oppenheim, Phillip

      Streeter, Gary

      Ottaway, Richard

      Sumberg, David

      Page, Richard

      Sweeney, Walter

      Paice, James

      Sykes, John

      Patnick, Sir Irvine

      Tapsell, Sir Peter

      Patten, John

      Taylor, Ian (Esher)

      Pattie, Sir Geoffrey

      Taylor, John M (Solihull)

      Pawsey, James

      Taylor, Sir Teddy

      Peacock, Mrs Elizabeth

      Temple—Morris, Peter

      Pickles, Eric

      Thomason, Roy

      Porter, David

      Thompson, Sir Donald (Calder V)

      Portillo, Michael

      Thompson, Patrick (Norwich N)

      Powell, William (Corby)

      Thornton, Sir Malcolm

      Rathbone, Tim

      Townend, John (Bridlington)

      Redwood, John

      Townsend, Sir Cyril (Bexl'yh'th)

      Renton, Tim

      Tracey, Richard

      Richards, Rod

      Tredinnick, David

      Riddick, Graham

      Trend, Michael

      Robathan, Andrew

      Trotter, Neville

      Roberts, Sir Wyn

      Twinn, Dr Ian

      Vaughan, Sir Gerard

      Robertson, Raymond S (Ab'dn S)

      Viggers, Peter

      Robinson, Mark (Somerton)

      Waldegrave, William

      Roe, Mrs Marion

      Walden, George

      Rowe, Andrew

      Walker, Bill (N Tayside)

      Rumbold, Dame Angela

      Waller, Gary

      Ryder, Richard

      Ward, John

      Sackville, Tom

      Wardle, Charles (Bexhill)

      Sainsbury, Sir Timothy

      Waterson, Nigel

      Scott, Sir Nicholas

      Watts, John

      Shaw, David (Dover)

      Wells, Bowen

      Shaw, Sir Giles (Pudsey)

      Wheeler, Sir John

      Shephard, Mrs Gillian

      Whitney, Sir Raymond

      Shepherd, Sir Colin (Heref'd)

      Whittingdale, John

      Shepherd, Richard (Aldridge)

      Widdecombe, Miss Ann

      Sims, Sir Roger

      Wiggin, Sir Jerry

      Skeet Sir Trevor

      Wilkinson, John

      Smith, Sir Dudley (Warwick)

      Willetts, David

      Smith, Tim (Beaconsf'ld)

      Wilshire, David

      Soames, Nicholas

      Winterton, Mrs Ann (Congleton)

      Speed, Sir Keith

      Winterton, Nicholas (Macdesf'ld)

      Spencer, Sir Derek

      Wolfson, Mark

      Spicer, Sir Jim (W Dorset)

      Yeo, Tim

      Spicer, Sir Michael (S Worcs)

      Young, Sir George

      Spink, Dr Robert

      Spring, Richard

      Tellers for the Noes:

      Sproat, Iain

      Mr. Timothy Wood and

      Squire, Robin (Hornchurch)

      Mr. Anthony Coombs.

      Question accordingly negatived.
      It being after Ten o'clock, further consideration of the Bill stood adjourned.
      Bill, as amended (in the Standing Committee), to be further considered tomorrow.

FLOOD PREVENTION AND LAND DRAINAGE (SCOTLAND) BILL
Order for Second Reading read.
Motion made, and Question put forthwith, pursuant to Standing Order No. 94E (Scottish Grand Committee (Bills in relation to their principle)),
That the Bill be committed to a Scottish Standing Committee.—[Mr. Carrington.]
Question agreed to.

FLOOD PREVENTION AND LAND DRAINAGE (SCOTLAND) BILL [MONEY]
Queen's recommendation having been signified—
Motion made, and Question put forthwith, pursuant to Standing Order No. 50A(1)(a),
That for the purposes of any Act resulting from the Flood Prevention and Land Drainage (Scotland) Bill, it is expedient to authorise the payment out of money provided by Parliament of any increase attributable to the Act in the sums payable out of money so provided under any other enactment.—[Mr. Carrington.]
Question agreed to.

DELEGATED LEGISLATION
Madam Speaker: With permission, I shall put together the motions relating to delegated legislation.
Motion made, and Question put forthwith, pursuant to Standing Order No. 101(6) (Standing Committees on Delegated Legislation),

DELEGATED LEGISLATION
  NORTHERN IRELAND
  That the draft Road Traffic Regulation (Northern Ireland) Order 1996, which was laid before this House on 4th December, be approved.

  BROADCASTING
  That the draft Broadcasting (Sign Language) Order 1996, which was laid before this House on 10th December, be approved.—[Mr. Carrington.]
  Question agreed to.

PETITION

  Sexual Offenders (Rehabilitation Unit)
  10.16 pm
  Mrs. Jane Kennedy: I am grateful to you, Madam Speaker, for granting me permission to present a petition on behalf of 3,000 of my constituents on the day when the House has been considering the Sex Offenders Bill, a measure which it is hoped will assist in the supervision of sex offenders, and thereby make life safer for our children.
  The petition of the residents of Old Swan, Liverpool, declares that they have strong objections to the use of 5 Derby lane as a development unit for the rehabilitation of those convicted of sexual offences, on the ground of its proximity to six local schools and nurseries, a youth club and a public park.
  The petitioners therefore call on the House of Commons to urge the Secretary of State for the Home Department to ensure that 5 Derby lane is not granted permission, either now or in the future, to be used for the above purpose.
  To lie upon the Table.

  PRC Homes (Southampton)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Wood.]
  10.17 pm
  Mr. John Denham: Thank you, Madam Speaker for giving me the opportunity to raise an issue that affects at least nine of my constituents in Sholing, Southampton. I realise that that is a relatively small number of people to make the subject of an Adjournment debate, but their situation is a serious one, and one that I hope will be assisted by tonight's debate. Their homes are structurally unsound. They cannot be sold, and they could not be mortgaged. Yet there is no agreement about how they might be repaired, and there is no immediate prospect of any improvement in the situation.
  I am speaking on behalf of innocent victims of a series of events outside their control. I hope that, by raising their plight tonight, through publicity and through seeking the support of my hon. Friend the hon. Member for Greenwich (Mr. Raynsford), who sits on the Opposition Front Bench, and that of the Minister, it will be possible to find a solution to their problems.
  All my constituents who find themselves in the position that I have described have bought their homes from Southampton city council, some under the right-to-buy legislation and others under the voluntary sales policy that existed before the right to buy. All the homes are of pre-cast reinforced concrete. They are all of a particular model—"Wates".
  Following widespread concern about the deterioration of PRC-built homes, the Government introduced the Housing Defects Act 1984. Under the Act, grants became available for the repair of properties and, in hardship cases, for re-purchase by local authorities.
  Although there was little evidence of serious deterioration of homes formerly owned by the city council, the widespread bad publicity and the passing of the Act blighted all such homes, and most people took advantage of the repair grants. That is what my constituents did. It still grates on them that, shortly after their homes were supposedly repaired, there was a switch, and from then on most people used the grant money to have their homes rebuilt. My constituents were among the last in Southampton to have homes of this type repaired.
  The homes were supposed to be repaired in 1990 and 1991. As the Minister knows, a licence and warranty arrangement was established to ensure that repairs to the defective houses were undertaken effectively, and that all repaired dwellings were mortgageable. That arrangement was set up and controlled by a subsidiary of the National House-Building Council called PRC Homes Ltd. The PRC Homes scheme involved the preparation and design of a series of repair schemes. The schemes were developed and had to be approved by a qualified appraiser, after which a licence was issued by PRC Homes to the designer of the repair scheme.
  The repair scheme was usually also submitted to each relevant local authority for building regulations and planning approvals, and for grant assistance. That process made it possible to identify whether a licence needed to be amended to suit the particular condition in each local area. After that process, the work was usually tendered and a repairer—a builder—was appointed to do the work.
  126
  The reason for tonight's debate is quite simple. For my constituents in Sholing, that process broke down, and broke down badly. What is not in doubt is that the works that were carried out were not carried out to the licence. But there is some doubt whether the licence that was approved was suitable for the type of homes involved and for the working conditions that applied to my constituents' homes. What is at issue, and what I want to ask tonight, is what exactly is wrong, what now needs to be done to put it right, and who is responsible for carrying out and paying for the work.
  I shall not go into great technical detail: I do not have the technical expertise to do so, and I shall limit the time that I take reading from other people's technical documents. The fundamental principle of the repair schemes seems to have been that the concrete panels, which were or could be defective, should no longer be load-bearing. Either they had to be removed and replaced, or additional structures had to be put in place that took the load instead.
  In the case of the Southampton properties, those principles were breached in a major way. Concrete panels were left load-bearing, and replacement walls were built in such a way as to be incapable of providing a secure structure and a secure home.
  To explain why I have asked for an Adjournment debate, I shall go over some of the history. PRC Homes had overall responsibility for the administration of the Housing Defects Act 1984. Michael Dyson Associates obtained the repair licence for the Wates homes in Sholing in Southampton. That company was the agent for thousands of different types of PRC homes up and down the country. The builders were S. J. Wickens. Incidentally, my constituents were refused a choice of builder by Michael Dyson Associates, even though work on other Wates properties in Southampton had been done by a different builder. The local authority was Southampton city council.
  I shall not go into all the details, but I must point out that some variations to the normal licence were required to cope with the problem of Wates houses that had a party wall with a city council tenant rather than another home owner. That meant that all the work had to be carried out from one side of the party wall. The treatment of the party wall turned out later to be a significant problem.
  The repairs in Sholing were in Coates road, Sullivan road and Parry road, and were carried out between 1990 and 1991. It is accepted that problems were identified during that time. It should be stressed that the problems were identified only because of the alertness and vigilance of some of the home owners. None were identified during the inspections of the properties. Indeed, Michael Dyson Associates signed off the properties as having had the works carried out to the licence conditions. It also issued inspection certificates, which were supposed to carry a 10-year guarantee that would satisfy a mortgage lender. I have one of those certificates, and it is quite worthless.
  It is odd that an agent that had a financial interest in the progress of the work was able to approve work and release moneys to itself. A clear conflict of interest lies behind some of the problems. It was only because some of the home owners had some common sense and technical expertise and challenged what had been done to their homes, that the problems came to light.

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  The city council took the view, consistent with Department of the Environment circulars, that the presentation of a certificate from Michael Dyson Associates was sufficient for it to release grant money. I should say for the record that I chaired the Southampton housing committee in 1990 and 1991. I have checked the records carefully, and I can say that none of the issues was presented to members during that period.
  Only after some home owners objected did city council officers refuse to release some funds on some properties. I stress the history, because some people have tried to make my constituents seem unreasonable in what they have done since. The truth is that, throughout this sorry story, my constituents have received a series of reassurances which, on their challenge, turned out to be useless.
  I cannot give a blow-by-blow account of what happened in 1990 and 1991, but those who had complained were asked to allow Wickens the builder back into their homes a number of times. Some did, as many as three times, but it became clear that any work being done was cosmetic, and was not dealing with the major structural problems. Given the home owners' disillusionment, it is not surprising that court action seemed to them the only way forward.
  In 1991, PRC Homes received correspondence from my predecessor, Christopher Chope; then from one of the home owners; then from solicitors representing seven owners. In my view, it is deeply disappointing that no systematic inspection of the properties in Sholing was carried out by PRC Homes at that time. PRC Homes will say that that was because of the threat of legal action. Later—under pressure from me—it relented, although legal action was still a possibility. By that time, it must surely have been clear that there was potentially a real problem with a number of homes in Southampton, and that it would have been better to intervene.
  I understand that, during 1991 and 1992, various discussions took place involving Michael Dyson Associates, the city council and some home owners regarding potential repairs. The tone of those discussions suggested that the owners were being unreasonable in not letting anyone back in to do the work, but they were understandably reluctant to trust the company that had so clearly approved the shoddy previous repairs, or the builder who had let them down so badly.
  After my election, I was approached by two of the owners, Mrs. Conroy and Mr. Hampton. I felt that the priority was to find out what needed to be done, and that argument about who should do it should take place later. In December 1992, I sought help from PRC Homes. On this occasion, it did respond, and agreed to inspect properties—but only the properties of Mrs. Conroy and Mr. Hampton: it would not look at others that might be defective.
  That was, I believe, a fundamental error. All the onus was being placed—as it had been from the beginning—on home owners to know that there was something wrong with their properties. At that time, I was gradually becoming aware of more and more owners with potential problems.
  An inspection took place, and on, 20 May 1993, PRC Homes wrote to Southampton city council saying that the timber frame party wall was fundamentally defective. By
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  that time, however, Wickens was in receivership. Over the summer of 1993, PRC Homes found out from the city council how much money had not yet been paid to the builder—a sum potentially to contribute to the cost of repairs. It was now being suggested that £10,000 would be needed to repair each home. That was far less than the home owners believed was necessary; rightly or wrongly, it reinforced the view that they would again be fobbed off.
  For some home owners, it was now three and a half years since their homes should have been repaired. There was a fundamental breakdown of trust in relation to Michael Dyson Associates, the council and PRC Homes. There is no doubt that the situation had become complex, with some home owners seeking a negotiated solution, some taking or least threatening legal action and some supported in such action by legal aid. Access to the homes was not easy.
  In February 1994, I again approached PRC Homes and suggested that we meet to discuss the position. I met Basil Bean, chairman of PRC Homes, here at the House of Commons. It was agreed that a new approach would be tried: PRC Homes would put together a repair scheme and offer it to the home owners, and the city council would provide "decant" accommodation. In June 1994, at Southampton civic centre, I chaired a meeting at which that approach was suggested.
  By that time, I knew of nine affected home owners, far more than had contacted PRC Homes. PRC Homes had made no attempt to contact other people with similar property who had had work done by Michael Dyson Associates and Wickens.
  By that time, some home owners had decided that the only way forward was either the complete demolition of their homes, and a rebuild, or for someone to re-purchase their homes. At the meeting in Southampton, some owners reserved their rights to press for those options. As those home owners knew, my hope was more modest. It was to achieve, through negotiation, repairs that would at least put people back where they thought they were going to be in the first place: with sound, mortgageable properties. None the less, the city council explored with the Department of the Environment whether the council could receive any extra funding to re-purchase the properties, but that was not possible under the Housing Defects Act.
  Some owners were willing to consider repairs. In January 1995, PRC Homes wrote to all owners setting out its offer of repairs and the city council's offer of accommodation. I believed then that the problem was close to resolution, but, two years later, no work has started, although one home may be done in February. That is why I took up the issue again in the autumn.
  One of the reasons for asking for this debate is that I could not obtain answers to my letters to PRC Homes. I have now had a reply, but I am sorry to say that we are not much nearer a solution. I accept that there has been a good deal of toing and froing with the owners, which has taken time. Not surprisingly, they want to be satisfied that the work to be done would do the job. I am sorry to say that the story is repeating itself.
  Most fundamentally, each owner is being dealt with separately, although their problems are common. Those owners that have challenged the PRC Homes proposals have produced convincing evidence that the proposed repair scheme is inadequate. One of the owners,

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  Mr. Magee, has obtained, under legal aid, a structural survey of his property. That sets out clearly not only what was wrong with the original repairs, but what is wrong with the PRC Homes scheme.
  Again, I stress that I am not technically qualified to assess the evidence, and all the properties are different, but I find the report persuasive. It confirms that a steel beam has been fixed to a concrete panel, a fundamental breach of the licence, and concludes:
  "If the steel was severed from the concrete panel, as is required by the licence, we believe that the party wall framework would not be capable of carrying the imposed first floor and roof loading. The structural stability of the property would be seriously affected, resulting in potential partial collapse."
  That confirms the concern about the party wall, but the report, alongside a lengthy list of poor workmanship and licence breaches, also finds a major breach in the treatment of the non-party walls involving the removal of linings.
  Again, I quote from the survey:
  "this item has resulted in general misunderstanding by the repairer and designer alike, leading to major constructional defects and problems on site and large scale deviations from the licence. In effect, the removal of internal linings completely revokes the licence which was prepared on the basis of linings remaining."
  It goes on to say that a trial hole
  "shows the fixing of the roof to the new blockwork to be structurally inadequate, the junction between external cavity wall and internal gable wall to be inadequately tied, and the walls to be poorly constructed. Large scale rebuilding works are urgently required to remedy these defects."
  I could go on, but those quotes illustrate the scale of the problem on one property. They have not been reflected in the PRC Homes response to date. The PRC Homes proposals are in respect only of the party wall framework. As they stand, they will not rectify the other major constructional defects.
  As I have mentioned, there was originally talk of £10,000 per property being needed. Some owners have been told that the cost in their case may reach £20,000. The structural engineer's survey on this one property estimated the repair cost at £37,000. Every estimate puts the repair cost closer to the cost of a rebuild.
  I cannot stress too much that it is not right that the scale of the problem should be revealed only by the individual initiative of my constituents. In this case, it is the taxpayer, through legal aid, who has funded the survey. Another constituent has already spent nearly £8,000 on surveys and legal fees in obtaining her own independent advice—all that because there has not yet been a commitment to a comprehensive and inclusive solution to the problem.
  Of course I welcome PRC Homes's general acceptance of the need to respond to the crisis faced by my constituents, but PRC Homes must move more speedily and comprehensively to a solution than it has done so far. It is now seven years since the first work was done, four and a half years since I first became involved, and two years since PRC Homes offered to undertake repairs. That time scale is not good enough. There is no sense yet of an organisation that is committed to finding, urgently, a comprehensive solution.
  I ask the Minister to support me, because PRC Homes was and is responsible for implementing the Housing Defects Act, which is Government legislation. Others,
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  such as Michael Dyson and the builders, Wickens, may bear responsibility for the original failure, but the ball is now in the court of PRC Homes. I ask the Minister to support my contention that PRC Homes must find a complete solution for all the properties. As part of that, it must satisfy itself that no other properties repaired by the same or similar people have hidden problems on this scale.
  Given the distrust that now exists, a system of independent inspection or arbitration covering all the properties must be agreed and put speedily into place. Finally, PRC Homes should agree in advance to carry out the necessary remedial work, or to agree an alternative with the home owners. Any need to recoup funds from any other party to this sorry tale should be the responsibility of PRC Homes.
  My concern is that my constituents, whose homes have been worthless for more than a decade, will be forced into a situation in which some will take an inadequate offer out of desperation, others will struggle to finance their own legal action, and yet others will have to be funded by the taxpayer through lengthy legal battles. That would be quite unfair, and I ask the Minister to use all his powers to press for a solution along the lines that I have outlined.
  10.35 pm
  Mr. Nick Raynsford: I am grateful to my hon. Friend the Member for Southampton, Itchen (Mr. Denham) and to the Minister for allowing me to speak briefly in the debate. I pay tribute to my hon. Friend for raising this important subject, which affects a number of his constituents. He has rightly highlighted the disturbing implications for them of the manifest failure of schemes, and the way in which they were put into effect, that were supposed to resolve the problems in their homes.
  Some wider issues of public concern ought to be addressed, and I hope that the Minister will attend to them, if not now at least in the near future. First, my hon. Friend the Member for Itchen made a reasonable case for the need for some kind of independent verification and inspection of the quality and validity of the work. Those involved in the process, whether PRC Homes or Michael Dyson Associates, all had a vested interest in the way in which the work was carried out. There seems to have been no proper mechanism to ensure independent scrutiny and inspection.
  Secondly, there is the issue of public money. The works carried out to the defective homes under the relevant legislation involved the use of public money, and my hon. Friend has said that more public money is being spent on legal aid to try to enforce remedial works because of the failure of initial work. It is unsatisfactory for public money to be brought into use for a second time by a different route to enforce repair work that would not have been necessary if the original remedial action had been carried out properly.
  Thirdly, there is the wider issue of the remedies that are available to home owners. The Minister will be aware of growing concern that the systems, supposedly designed to reassure those who buy new homes, that are operated through the National House-Building Council and other bodies have sometimes not proved entirely satisfactory. PRC Homes, a subsidiary of the NHBC, seems to have failed to provide a speedy and adequate response to the

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  rightful concerns and grievances of home owners. I hope that the Minister will address those matters and ensure justice at long last for my hon. Friend's constituents, and that he will also address the wider issues.
  10.37 pm
  The Parliamentary Under-Secretary of State for the Environment (Mr. James Clappison): I appreciate the interest of the hon. Member for Southampton, Itchen (Mr. Denham) in this matter. Perhaps he and the hon. Member for Greenwich (Mr. Raynsford) will allow me to put these issues in the context of the housing defects scheme of assistance as a whole.
  In the early 1980s, following discovery of cracking in the columns of an Airey house, the Building Research Establishment conducted a comprehensive investigation into all types of precast reinforced concrete houses built before 1960. The BRE discovered that, unfortunately, in a long-term chemical process known as carbonation, carbon dioxide interacted with the concrete to change its composition, so that the protection that it afforded to the steel reinforcement would eventually be lost, and in due course houses would become structurally unsound.
  It is a slow process, and the BRE found that, in most cases, structural failure would not occur for some time. However, all dwellings of that type would eventually be affected, which meant that many former tenants—over 25,000 in England alone—had bought their homes at a valuation that did not accurately reflect the true likely dwelling life.
  The homes had been sold in good faith by public sector landlords, in circumstances in which neither the vendor nor the purchaser could have been aware of the inherent defects. Therefore, with all-party support, we introduced the scheme of assistance embodied in the Housing Defects Act 1984. The scheme entailed that, over a 10-year period, owners would receive 90 per cent. grants, or 100 per cent. grants in cases of financial hardship, to reinstate their houses to the structural condition that their original valuation had assumed—the "defect-free" value.
  Reinstating houses to that condition meant either removing and replacing the original PRC components or making them structurally redundant. In cases in which it was physically impossible to do so or it offered better value for money, or in hardship cases, the alternative form of assistance would be re-purchase. The primary form of assistance, however, would be through reinstatement.
  It was a massive undertaking. In England alone, 22 different PRC house types were initially designated under the legislation as inherently defective, some of them with as many as 18 separate variants. Repair systems had to be designed for all of them that met the stringent standards on which lending institutions rightly insisted to accept houses as assets for mortgage purposes. Therefore, the National House-Building Council set up a subsidiary—PRC Homes Ltd.—to license repair systems that would meet the criteria, and repairers to carry out the work; to approve a list of inspectors to inspect the work; and to issue a 10-year warranty at completion.
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  PRC Homes Ltd. was fortunate in being able to call upon advice from technical experts from the local authorities, who were to administer the scheme, and from the lending institutions, BRE, and my Department. The assessment committee met regularly over a period of eight years to evaluate, line by line and drawing by drawing, the specifications for a total of 53 separate repair systems. As a result of their work, less than 1 per cent. of owners eligible under the scheme who have applied for assistance are still waiting for works to be completed, and we expect the vast majority of local authorities, including Southampton, to have completed their programmes by the end of this financial year.
  Lending institutions have been supportive throughout. A survey of the largest building societies, conducted in 1986, suggested that almost all would consider on normal terms an application for mortgage on a repaired property, and that generally remains the case today. However, even the most watertight licence and inspection system is vulnerable to human frailty, and there is always a possibility of problems, which is why the PRC Homes Ltd. warranty makes provision for ensuring that defects or damage caused by failure to comply with workmanship, materials or design requirements of the repair system that are discovered in the first two years after completion are rectified by the repairer or—if the repairer becomes bankrupt—by PRC Homes Ltd. itself.
  In the specific cases in Southampton which the hon. Member for Itchen has brought to our attention, the repairer did vary a detail from that shown in the licensed system. The variation was picked up by the inspector, however, who instructed the repairer to return to site to carry out remedial work—which he agreed to do, pending release of retention moneys. As I understand it, the variation in no way compromised the structural stability of the dwellings, but merely meant that the new works to render the existing party wall structurally redundant were not completely independent of the unrepaired property next door. A continuous beam linking the two properties had been left, rather than severed at the party wall, as required by the repair system. Until the matter was remedied, obviously the repair could not be accepted by a lending institution as conforming completely with the licensed repair system.
  Unfortunately, it appears that at least some of the owners were unwilling to give the repairer access to their houses to carry out the work, and that, for the same reason, later attempts by PRC Homes Ltd. to carry out an independent inspection were also unsuccessful. A warning of legal action by six of the owners then meant that PRC Homes Ltd. did not feel that it could be further directly involved at that stage.
  That state of affairs persisted until December 1992, when the hon. Member for Itchen wrote to PRC Homes Ltd. asking for their assistance as an "honest broker". A site meeting was arranged at three of the properties, in April 1993, to agree a schedule of works, but, in June 1993, PRC Homes Ltd. were advised that the repairer had ceased trading.
  That meant that PRC Homes Ltd. was now directly involved under the terms of the insurance certificate. However, in October 1993, one of the owners telephoned PRC Homes Ltd. to advise the company that the owners did not want repairs done, and that she and three of the other owners were considering legal action against the

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  inspector. Nevertheless, PRC Homes Ltd. managed to obtain access to the properties to carry out inspections over the next three months.
  In April 1994, one of the owners contacted an official in my Department, who advised her that the scheme of assistance was administered by local authorities, and that it therefore did not appear to be a matter in which the Department could become directly involved.
  Southampton city council then wrote to my Department in October of that year in response to a request from the owners, inquiring whether it would be possible for the council to re-purchase the properties. It was pointed out that there was no provision in the legislation for assistance by re-purchase after an owner had already received assistance by way of reinstatement grant. That remains the case today, and, in any case, as I have already noted, re-purchase as a form of assistance is available under the legislation only in very specific circumstances, which Southampton city council had evidently decided in 1989 did not apply here.
  Re-purchase is not a feasible solution to the owners' problems, and while I obviously sympathise with their desire not to undergo further disruption to their homes
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  while remedial work is carried out, nevertheless the fact remains that the only viable way forward is that provided by the terms of the warranty.
  Both Southampton city council and PRC Homes Ltd. are, I understand, in agreement on the works to be done. I also understand that the council has offered the use of an empty house as alternative accommodation while the work is carried out, and that PRC Homes Ltd. is prepared to meet storage and removal costs, even though the original works were carried out with the owners in residence.
  I do not see what more the two parties can do to advance matters, and indeed I understand that one of the owners has already accepted that, and has even agreed that work can proceed while he remains in occupation. If the other owners signal their agreement, they too can join the contract, and put an end to seven years of frustration and uncertainty. I very much hope that that proves to be the case, and that, having heard what I have had to say, the hon. Gentleman agrees with me that it is the only practical outcome.
  Question put and agreed to.
  Adjourned accordingly at fourteen minutes to Eleven o'clock.

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  Millennium Exhibition
  Computers (Millennium)
  Computers (Millennium)
  Departmental Publications
  Departmental Publications

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

Civil Court Fees
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Why they are making intentional increases in the charges imposed on users of the civil justice system.
Baroness Trumpington: My Lords, civil court fees have been increased to bring civil fee income more closely in line with the rising costs of the administration of civil justice.
Lord Boyd-Carpenter: My Lords, can my noble friend explain why the cost of civil justice is rising? Can she also tell the House whether it is necessary for it to rise and what action the Government are taking to stop it from so doing?
Baroness Trumpington: My Lords, it is not that the costs have gone up: it is because we are gradually proceeding towards the recovery of the full cost. The latest projection of the Court Service for the year 1997-98 was that, without the recent fee increases, the income from civil fees would have fallen short of the cost recovery target by some £47 million—a burden on the taxpayer.
Lord Cledwyn of Penrhos: My Lords, is the noble Baroness aware that court fees are now an impossible burden for poorer people and that this holds true not only in the High Court but also in the county court? Is the noble Baroness also aware that the whole system of court fees now needs to be reviewed? Further, does she recall that her noble and learned friend the Lord Chancellor said a few weeks ago that he was going to set up a review? Can the noble Baroness say whether there is any truth in that and whether we can expect such a review?
Baroness Trumpington: My Lords, my noble and learned friend the Lord Chancellor has already committed himself to reforming the system of civil litigation in line with the recommendations made by the noble and learned Lord, Lord Woolf.
Baroness Gardner of Parkes: My Lords, is my noble friend aware that the first we heard about these increased charges was when they were discussed in terms of tenants bringing actions regarding service charges? We were then told that it would be a matter of
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covering costs, right down to the milk for the office cat. In terms of the civil court, is this a similar situation? Is it a process of going towards that same level of payment?
Baroness Trumpington: My Lords, I am not quite sure about the cat. Nevertheless, speaking about those on low incomes whose court proceedings are funded by legal aid, I can say that they will continue to have their court fees paid by the Legal Aid Fund. In proceedings where legal aid is seldom or never granted—small claims and undefended divorce proceedings—provision has been made for fees to be reduced for those on low incomes or in receipt of income support.
Lord Irvine of Lairg: My Lords, is the noble Baroness aware that families on income support were previously completely exempt from court fees? But now, when they face a possession order for the family home or a default judgment for debt, they cannot even obtain the assistance of the court's staff to apply to the court for a rescheduling of the rent or debt obligation unless on payment of £10, which they do not have. Is that not a disgrace? Should not fee exemption for families on income support be restored?
Baroness Trumpington: My Lords, except in the category of case where possession is mandatory, the defendant will have had an opportunity to defend himself or herself and to inform the court of his or her financial circumstances. The costs to the Court Service of processing such an application is over £20. Therefore, £10 is deemed to be an acceptable minimum contribution towards meeting that cost.
Lord Lester of Herne Hill: My Lords, can the noble Baroness tell the House whether the Government have accepted the recommendation of the noble and learned Lord, Lord Woolf, that the position of the litigant of modest means must be protected from the undue impact of these increased fees?
Baroness Trumpington: My Lords, in a Written Answer my noble and learned friend the Lord Chancellor has already stated that the implementation of reforms to civil procedures recommended by the noble and learned Lord, Lord Woolf, will necessitate a review of the current fee structure to ensure that fees are charged at an appropriate level and at an appropriate point in the progression of a case. During the review, full account will be taken of the position of litigants of modest means.
Lord Archer of Sandwell: My Lords, whatever the arguments for or against fee recovery in the courts may be, will the noble Baroness agree that the position in relation to tribunals is quite different? Can she give an undertaking that there is no proposal at present to extend this principle to tribunals?
Baroness Trumpington: My Lords, it would be invidious for me to give any such agreement in the

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absence of my noble and learned friend the Lord Chancellor. However, I shall pass on the remarks of the noble and learned Lord to my noble and learned friend.
Lord Cocks of Hartcliffe: My Lords, is the noble Baroness aware of any offer by members of the legal profession to voluntarily reduce their fees in order to assist in the resolution of this problem?
Baroness Trumpington: My Lords, consultation has taken place. The Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor and the President of the Family Division were all consulted about the proposals, as were the Chief Taxing Master, Her Majesty's Council of Circuit Judges and the Association of District Judges. I do not know whether they made any proposals concerning their salaries.
Baroness Farrington of Ribbleton: My Lords, is the Minister aware of the difficulty that people living on income support have in making ends meet? Does she think it is reasonable for the Government to say that such families must find £10 when they already have to choose between food and heating, and now can choose between neither?
Baroness Trumpington: My Lords, less well off litigants bringing small claims and undefended divorce cases remain protected by provisions which reduce court fees to a minimum contribution. The fees for those who are eligible for legal aid will continue to be borne by the Legal Aid Fund.

Gulf War: War Pensions
2.44 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
What is causing delays in the adjudication and award of war pensions to members of Her Majesty's Armed Forces who served in Operation Granby and who are ill as a result of that service.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, claims for war pensions from Gulf War participants are dealt with in exactly the same way as claims related to other periods of service. On average they have taken longer to determine than we would have wished. The problem is that a higher than normal proportion of such claims are for a number of ill-defined symptoms presenting after service release. Consideration of these requires extensive medical and service evidence in order to assess the type and level of disablement due to service. We have concentrated expert resources handling these cases and have taken a number of steps to speed up the process.
The Countess of Mar: My Lords, I thank the noble Lord for his reply. Will he convey to the Chief Executive of the War Pensions Agency my appreciation
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of his full reply to my written questions? Does the noble Lord agree that one of the problems is that the people who are examining these Gulf veterans are looking at individual symptoms rather than examining the veterans in an holistic way? Will the Government consider giving compensation to the veterans on the same lines as the American Government are doing for their veterans, even where there has been no diagnosis?
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Countess for the remarks she made about the Chief Executive of the War Pensions Agency. Under the war pensions legislation I doubt whether we could go down the same road as the Americans. We have to find a causal link between the medical problem and service before we can pay war pensions. That is what we look for. Part of the question of the noble Baroness illustrates the problem that in many cases the symptoms are often quite minor, but there are a fair number of them and they require the attention of a range of consultants. That has taken time, and we are aware of it. We have three doctors working on these cases. They have all the necessary expertise at their command that they feel they will need to decide the cases.
Lord Ashley of Stoke: My Lords, on the question of war pensions, is the Minister aware that the intentions of the original Act are being completely frustrated because virtually no service personnel in future will receive a pension for deafness because of the regulations? That really is unforgivable. Will the Minister kindly look into that matter and reappraise the whole situation?
Lord Mackay of Ardbrecknish: My Lords, I do not completely agree with the noble Lord that no serviceman could receive a pension now for deafness. However, I hope that few servicemen leaving the services in recent years would need to do so because the services are much more aware than in the past of the need for ear protection for those servicemen who are in noisy environments where guns are being used. The point I make about the war pension system is quite simply that it is rightly a generous system but there needs to be a causal link between the illness or the injury and the service.
Lord Molloy: My Lords, is the Minister aware—as I am sure he is—that the Royal British Legion is involved in this matter? Is the medical profession aware of the importance attached to the question of what drugs were used on our troops in the Gulf? I feel sure that the Minister will give that matter the full attention it deserves. What kind of drugs were used and were they approved by those in the higher echelons of the medical profession?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord, Lord Molloy, was right to refer to the Royal British Legion. That body and a number of organisations which specifically look after disabled ex-servicemen are interested in this issue. We are aware of the various reports of certain drugs being used, for example, exposure to organophosphates—the noble Countess has

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drawn that matter to our attention on a number of occasions—and of the vaccines that were used. The doctors working in the special section of the War Pensions Agency are well aware of all these issues and are in contact with the Department of Health, the MoD and the American authorities as regards the medical information that is being assessed.
Baroness Park of Monmouth: My Lords, as this is a matter of time—it is now five years since that conflict occurred—will the noble Lord assure us that these three doctors are receiving support, knowledge and information from the MoD's medical services as fast as they should, given that the latter have suffered considerable reorganisation and cuts?
Lord Mackay of Ardbrecknish: My Lords, I spoke to the three doctors on Friday when I went to Blackpool to meet them. They certainly have no problem in that regard. However, some of the ex-servicemen involved have not seen their own GP or a consultant. We have to start from scratch in assembling the medical information. As I said earlier, this can often involve a number of consultants in different specialties.
Baroness Hollis of Heigham: My Lords, we have already seen the Minister denounced by the experts he quoted on war pensions and deafness last week for misinterpreting the research and thereby inadvertently misleading the House. Therefore, as regards war pensions and the Gulf War syndrome, how can the House be sure that the Minister's information is any more reliable? Is it not the case that the medical records of thousands of servicemen and women are, according to the MoD, hopelessly out of date; that doses of anti-nerve gas pills were not recorded; and that files have been damaged and others lost? Surely our servicemen are owed better medical research if they are to have the pensions to which they are entitled.
Lord Mackay of Ardbrecknish: My Lords, I am sorry that the noble Baroness chooses to attack the officials who attempt to do their job in a worthwhile way. She should be careful about the numbers. We have received 180 claims relating to the so-called Gulf War syndrome. Of those we have awarded 62 because we have been able to identify perhaps psychiatric or other symptoms with service in the Gulf. About a third have received war pensions. I think that the noble Baroness, as so often, overstates the position.
Lord Campbell of Alloway: My Lords, will the Minister confirm that if and when causation is established the pension will be backdated retrospectively to the time of causation?
Lord Mackay of Ardbrecknish: My Lords, in many cases that we consider—those from the Gulf are among them—the problem does not arise until afterwards. Many have left the service with a perfectly clean bill of
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health and report these symptoms later. The point and general principle is that war pensions are paid from the date of the application.
The Countess of Mar: My Lords, was I correct in hearing the noble Lord say that only 180 claims had been received? The Chief Executive of the War Pensions Agency states,
"On 2 January 1997 we had 434 claims".
How does the way in which the system works at present correlate with the statement of the Chief Executive that,
"under the very preferential terms of the Scheme"—
the war pensions scheme—
"where a claim is made within seven years of termination of service (and that, of course, is the case for all Gulf claims made so far) the benefit of any reasonable doubt is always given to the claimant and the onus is on the Secretary of State to show beyond reasonable doubt that service in the armed forces has played no part in the cause or course of the claimed disablement".
I have had correspondence from one Gulf veteran who had 24 medical examinations in order to obtain his war pension; and he still has not received it. Will the Minister look into the present situation to see what he can do to expedite the settlement of claims?
Lord Mackay of Ardbrecknish: My Lords, if the noble Countess wishes to write to me about the specific case, I shall have it looked into. However, as I mentioned in reply to the noble Baroness, Lady Hollis, something like a third of the specific claimant have been awarded war pensions.
There is not a problem as regards the difference in figures. My figure of 180 related to those cases which highlighted some form of syndrome. A person may have been to the Gulf but may well be asking for a war pension because of an incident which occurred either before he went to the Gulf or after he came back from the Gulf—for instance, service currently being undertaken in Bosnia.

Computers: the "Millennium Bug"
2.53 p.m.
Lord Stallard Lord Stallard asked Her Majesty's Government:
What precautions are being taken to ensure that computers and other time-sensitive equipment currently being used in government departments will not suffer catastrophic disruption from what has been called the millennium bug.
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): My Lords, the integrity and continuity of government information systems are essentially the responsibility of individual departments. However, the Deputy Prime Minister and Chancellor of the Duchy of Lancaster have personally ensured that all ministerial heads of department and Permanent Secretaries are aware of the problem and are

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implementing plans of action in relation to their computer systems and that all departments plan to complete the work in time.
Lord Stallard: My Lords, I am grateful for that reply. I am sure that some confidence will be generated as a result of his recognition of the urgency of the problem. A few weeks ago in another place the Minister of public service said that he was confident that education and awareness across government will create solutions to the problem; he believed that we had just about enough time. In reply, the Business Standards Institution magazine of this month, citing the Computing Services and Software Association, does not share the confidence of the Minister and his honourable friends in another place. As regards the millennium bug, the article states that,
"Unless specific action is taken immediately, what is currently a manageable problem will become a crisis in 1997/98",
and the potential to put organisations out of business is definitely there. The article concludes that it is no exaggeration to say that failure to tackle the issue in good time could lead to commercial disasters.
I do not believe that the Government have recognised the real urgency of the matter. If we do not act now there could be some commercial disasters outside government, and certainly within government.
Earl Howe: My Lords, all the indications are that the problem is not insurmountable as long as it is tackled sufficiently early and thoroughly. I believe that the Civil Service is acting in good time; and the public sector appears to be in as good a position as the private sector. The evidence in the private sector is that the larger companies for the most part have addressed the problem with suitable urgency. I understand that in the main it is the smaller companies which have yet to see the importance of the issue. We believe that across government work is now in hand and that we shall see the problem addressed in good time.
Lord Richard: My Lords, if the noble Earl is right when he says that the problem has to be tackled early, will he comment on the fact that the Government are purchasing computers now—I refer in particular to £150 million-worth for the National Health Service—which are subject specifically to this millennium bug? Those will have to be put right. What on earth is the point of buying something now which will have to be put right at an early stage?
Earl Howe: My Lords, I believe that any software sold on the market now has to be either millennium compliant, as it is called, or has to come with a warranty
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to ensure that it is upgraded or updated before the critical date. I understand that that applies to the system that the noble Lord has mentioned.
Lord Richard: My Lords, is the Minister saying that the £150 million worth of computers that have been bought apparently for the National Health Service have the millennium bug and will have to be treated?
Earl Howe: My Lords, I shall have to see to which system the noble Lord refers. I shall write to him if something I have said is incorrect. I understand that there is no risk to the National Health Service from any system that it has recently purchased.
Baroness O'Cathain: My Lords, will the Minister ensure that the experience gained by the public sector and by large private companies is of some assistance to the smaller companies? It is in everyone's interest that every company which has software is free of this millennium bug by the millennium. I fear that there will be areas of the country to which that will not apply because not enough constructive help has been given to those companies through various channels.
Earl Howe: My Lords, my noble friend raises an important point. The Government have established TaskForce 2000. My honourable friend the Minister for Science and Technology is involving the private sector to raise awareness and to identify solutions. The key aim of the task force is to ensure 100 per cent. awareness and commitment from main board members in industry and commerce, and that the target should be reached no later than March 1997.
Lord Dean of Beswick: My Lords, the Minister appears to indicate in his Answer that the Government are satisfied with the performance of the computers which have been purchased by units of the National Health Service. Will the Minister take time to read the report of the Audit Commission on some of the scandals as regards computers that were purchased which totally fail the health service?
Earl Howe: My Lords, I am not sure that that specific problem relates to the Question on the Order Paper, which is concerned with a quite narrow, albeit important, difficulty which many computers are likely to experience if nothing is done.
The problem has been addressed. We are ensuring that there is widespread awareness and that the problem will be solved. The point that the noble Lord raises is significant and I shall of course look at it.
The Earl of Northesk: My Lords, will my noble friend the Minister confirm that so far as the millennium time bomb is concerned, it is a matter of the hardware rather than the software; and that in that sense £150 million spent on computers (hardware) need not necessarily be a waste of money?
Earl Howe: My Lords, my noble friend makes an important point. While for many computers it is

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primarily a software problem within applications programmes and so on, there are some hardware systems that are not millennium compliant. The obvious examples are: process control systems; access control systems; air-conditioning systems; lift control systems; and even traffic lights. Any system that runs with a clock inside it could be vulnerable.

Combined Cadet Force
3 p.m.
Lord Morris of Castle Morris Lord Morris of Castle Morris asked Her Majesty's Government:
What plans they have to implement the Prime Minister's proposal to extend the Combined Cadet Force to all schools.
Earl Howe: My Lords, as my right honourable friend the Prime Minister made clear last week, the Government wish strongly to encourage wider voluntary participation in all the cadet organisations, including the CCF. Membership of that force presently provides some 40, 000 young people at 241 schools with the opportunity to develop such vital personal qualities as leadership, self-respect, teamwork, responsibility and good citizenship. We are considering ways of increasing the scope of the cadet forces as a whole, so as to allow even more young people the opportunity to enjoy the benefits of membership.
Lord Morris of Castle Morris: My Lords, I am most obliged to the noble Earl for that reply. However, will he explain to the House what skills, other than skill in killing people, would be given to those young people by the extended CCF which would not be equally given to them by such organisations as the Duke of Edinburgh's Award scheme, the Outdoor pursuits centre, the outward bound schemes or their local sports club?
Earl Howe: My Lords, the noble Lord shows an uncharacteristic ignorance of what cadet forces offer to young people. The weapons handling part of the syllabus is only a minor part of what they do. The reasons why we regard the budget on cadets as money well spent are: first, it is a good way of keeping defence in the public eye and promoting a knowledge of the Armed Forces among the public; secondly, it is a way of delivering useful training to young people within a service ethos; thirdly, it increases the level of interest in the Armed Forces among the young. All the evidence shows that the cadet movement succeeds admirably in those objectives.
Baroness Young: My Lords, does my noble friend agree that in his first reply he answered the supplementary question of the noble Lord, Lord Morris of Castle Morris, by setting out the qualities that cadet forces encourage in young people? Does he further agree that there is no contradiction at all in encouraging cadet forces and at the same time encouraging young people to take up the Duke of Edinburgh's Award, more
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sporting activities and all the other outdoor activities that are so valuable in the development of character and personality?
Earl Howe: My Lords, I am very grateful to my noble friend. I could not have put the case better myself. As she rightly indicates, cadets are encouraged to undertake adventurous activities, including expeditions, and to learn community skills such as first aid. Through the Duke of Edinburgh's Award scheme they can further their education in such subjects as the arts, engineering and computer studies. Cadet forces also offer a wide range of other academic and practical activities, many leading eventually to national vocational qualifications.
Lord Quirk: My Lords, is it not the case that membership of any of the cadet forces rapidly challenges the mathematically challenged, of whom we have far too many among our youngsters; and that anything that we can do which will encourage the demonstration of the practical utility of basic skills is to be encouraged?
Earl Howe: My Lords, the noble Lord makes a very valuable point. The activities encouraged by the cadet movement provide a practical outlet for academic skills acquired in the classroom. One thinks of mathematics, applied mechanics and even military history. Many of the outdoor activities encourage a respect for conserving the environment. There are many ways in which the noble Lord's question is extremely pertinent.
Lord Jenkins of Putney: My Lords, is the Minister aware that, like me, John Major refused to become a cadet? He became a wolf cub. Does the noble Lord recognise that non-military bodies exist as well as the cadet organisations? For example, the Woodcraft Folk specialise in environmental matters and are an extremely valuable body. Is the Minister further aware that none of these bodies receives a cent in state support? Is it not right that these matters should be examined again on a much wider basis so that bodies established on a non-military basis can at least receive equal attention?
Earl Howe: My Lords, I suspect that my right honourable friend the Prime Minister spent rather a lot of his time playing cricket. However, that is another matter. The noble Lord makes a very important point about youth movements generally. The Government certainly encourage those movements. It is, however, equally important to recognise that the young have a particular interest in youth movements associated with the Armed Forces. There is merit in that interest being channelled, for example, into a safe and responsible attitude towards the use of firearms and into their being encouraged to see the Armed Forces as a force for good in the defence of this country.
Lord Jenkins of Putney: My Lords, the other organisations need more cash. They need government money.
Earl Howe: My Lords, they may need more cash. Whether they will receive more government money is a

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matter upon which I should be interested to hear the views of the party opposite. Many voluntary organisations raise much of their money through their own efforts, as do many units within the cadet force movement. The sea cadets, in particular, raise at least half their funds through charitable and voluntary fund-raising.

Obscenity Bill [H.L.]
3.7 p.m.
Read a third time.
The Earl of Halsbury: My Lords, I beg to move that this Bill do now pass.
I thank all those who, by their support, allowed the Bill to reach this stage in time to be sent on its way to the other place and, it is to be hoped, beat the timetable before the next general election. I particularly thank those noble and learned Lords who helped me with its drafting in the first place and the extra-parliamentary organisation, CARE, perhaps better known to your Lordships as the Nationwide Festival of Light, which helped me with a great deal of the detail.
Moved, That the Bill do now pass.—(The Earl of Halsbury.)
On Question, Bill passed, and sent to the Commons.

Crime (Sentences) Bill
3.8 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that this Bill be now read a second time.
The first duty of any government is to maintain law and order. That means providing protection for the public against serious, dangerous and persistent offenders; and proper punishment for those who are convicted of offences against the public.
The present Government have not hesitated to strengthen the powers of the courts whenever it has been necessary to do so. We have increased the maximum penalties for a range of offences and introduced new offences to cover new areas of criminal conduct. However, we believe that in relation to certain categories of offence and offender it is now necessary to go further. We want to make a real impact on the crimes which cause particular and serious harm and distress to the victim—serious violent and sex offences, persistent dealing in hard drugs and persistent domestic burglary. That is what the radical new proposals in this Bill are designed to achieve, and it is the bench-mark against which they should be judged.
This is an important Bill. The key proposals were set out in the White Paper Protecting the Public, which was published in April last year, and in three further consultation papers on sex offenders, mentally disordered offenders and community penalties. At the
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instigation of the noble and learned Lord, Lord Taylor of Gosforth, this House had a stimulating debate on the proposals in May last year. The proposals have since been thoroughly debated in another place where some changes were made and a number of important new proposals were added. The proposals contained in this Bill have therefore gone through a long period of gestation and debate, and they are the better for that. They have attracted wide support from the public and the police, and I think it is fair to say a measure of support from the main Opposition party in another place. On Third Reading the Bill had a majority of over 200. I look forward to the constructive debates which we will have today and in Committee, and to getting this important Bill on to the statute book at the earliest opportunity.
Part I of the Bill contains the core proposals on sentencing which were outlined in the White Paper Protecting the Public. The proposals fall into three main parts. The first is the automatic life sentence, which is set out in Clause 1. This requires the court to impose a sentence of life imprisonment on anyone convicted for the second time of a serious violent or sexual offence, unless there are exceptional circumstances which justify not doing so. The relevant qualifying offences include rape, attempted rape, manslaughter, armed robbery and the most serious woundings.
The purpose of this proposal is twofold. First, it will ensure that offenders who are convicted for the second time of a serious violent or sexual offence are not released from prison if they continue to pose a real danger to the public. Secondly, offenders who are released will remain under supervision and subject to recall for the rest of their lives. Those two safeguards will provide real protection for the public against some of the most dangerous criminals in our society. That is what Clause 1 is designed to achieve.
Let me make clear that the trial judge will have complete discretion to set whatever tariff he considers appropriate to reflect the seriousness of the offence. Neither the Home Secretary of the day nor any other Minister will play any part in this process. Once the offender has served the tariff set in court by the trial judge, he will be released only if the Parole Board is satisfied that he no longer presents a danger to the public. If, however, the Parole Board is not satisfied that it is safe to release the offender then he will continue to be detained, subject, of course, to periodic reviews. It is the possibility of detaining the prisoner in this way, combined with lifelong supervision following release, which provides a level of public protection which no determinate sentence, however long, can provide.
Life imprisonment is already the maximum penalty for all the serious violent and sexual offences to which Clause 1 applies. But it is rarely imposed, even when the offender has previous convictions for similar serious offences. In 1994, 217 offenders were convicted of a serious violent or sexual offence, having previously been convicted of one or more similar offences. Only 10 of them were sentenced to life imprisonment.
I do not believe this gives the public the protection they need from such serious offenders. The courts can and do impose long determinate sentences for such

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offences, but when the offender has served his sentence he must be released at the automatic release point, even if there is every reason to believe that he will commit further serious offences. That is exactly what happens in a significant proportion of cases. Perhaps I could give the House an example. Last September a rapist was sentenced to life at Chelmsford Crown Court. He already had two previous convictions for rape, including that of a child, but because he was not given a life sentence on those occasions he had to be released at the end of each sentence. Under Clause 1 of the Bill he would automatically have received a life sentence on his second conviction, and would not have been free to rape for a third time. In future, offenders such as this will not be released automatically at the end of their sentence to commit further horrific crimes.
The Bill provides the court with discretion to set aside the automatic life sentence in exceptional circumstances. There was a good deal of debate in another place about exactly what that means. I would respond by quoting the noble and learned Lord, Lord Bingham of Cornhill, who said in a recent interview that "exceptional circumstances" means very unusual at the very least. That is exactly what we want to achieve. Mandatory penalties will only have the salutary effect which we expect and intend that they should if they are imposed as a matter of course in the generality of cases.
The Attorney-General will be able to refer cases to the Court of Appeal if he considers that the court has exercised its discretion to set aside the mandatory penalty in circumstances which were not exceptional. I have no doubt that the Court of Appeal will, in any event, take advantage of an early opportunity to issue guidance on what do and do not constitute circumstances which are sufficiently exceptional to justify setting aside the various mandatory penalties.
The second key element of our proposals, which is set out in Clauses 2 and 3, is that the courts should be required to impose mandatory minimum prison sentences on offenders convicted of domestic burglary or trafficking in Class A drugs who have two or more previous convictions for similar offences. We propose minimum sentences of three years for persistent burglars and seven years for persistent Class A drug dealers.
Persistent burglars and dealers in hard drugs are a menance to society, and they must know that if they continue offending they will go to prison for a long time. Burglary and drug dealing are crimes characterised by persistence. The police are playing their part by mounting operations targeted at known and persistent offenders. But too often burglars, in particular, escape custody or get a short sentence even after numerous previous convictions. A recent sample found that the average sentence imposed by the Crown Court on offenders convicted of domestic burglary for the first time was just over 16 months. After seven or more convictions, which often represents many more burglaries, the average sentence imposed by the Crown Court was only just over 19 months, and 28 per cent. of such offenders were not sent to prison at all. In the magistrates' court an extraordinary 61 per cent. of offenders with seven or more convictions for burglary were not sent to prison at all. Average sentence lengths
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do, of course, reflect a range of different sentences and within that sample of burglary some persistent burglars received much longer sentences than the average. But this was a minority. The unacceptable fact remains that there is little evidence of significantly longer sentences being imposed even after several convictions. And we should remember that each conviction may be for more than one offence.
If the majority of convicted burglars can expect to escape custody, however many times they offend, or receive a relatively short sentence, it is little wonder that so many burglars offend again and again and again. Under our proposals, burglars and hard drug dealers will know that if they continue offending they will go to prison for a long time. Stiff minimum sentences will provide a real deterrent to persistent offenders and severe punishment for those who continue to offend regardless.
Courts will have the discretion to set aside the mandatory minimum sentences in exceptional circumstances as they may similarly set aside the automatic life sentence. In the case of mentally disordered offenders, it will continue to be open to the court to impose a hospital order instead of the mandatory minimum prison sentence if it considers it appropriate to do so. The Bill also contains provision for the court to reduce the mandatory minimum sentence by up to 20 per cent. to take account of timely guilty pleas. This is to provide an incentive for those who are guilty to plead guilty at an early stage, thus avoiding unnecessary and costly Crown Court trials.
It has been suggested that the proposals in the Bill for mandatory sentences will remove the discretion of judges. Well, to a limited extent they do. Given the scourge of persistent burglary and dealing in hard drugs, the misery that habitual offending of this kind inflicts and the way it impacts on the public, some of us would say "rightly so". But there is nothing unique in the suggestion that Parliament should, in certain circumstances, prescribe such penalties. Mandatory penalties are already a part of our criminal justice system. For example, the mandatory penalty for murder is life imprisonment. Disqualification from driving is obligatory for certain serious road traffic offences, such as causing death by dangerous driving or driving when under the influence of drink or drugs, and the disqualification must be for at least 12 months. Only if there are special circumstances may the court set aside the mandatory requirement to disqualify.
The loss of discretion arising from the proposals in the Bill should not be exaggerated. The proposals are carefully targeted and narrowly focused. The mandatory minimum will only apply where strict qualifying conditions are met; and even then courts will retain the discretion either to impose a higher sentence than the mandatory minimum or, of course, set aside the mandatory sentence altogether in exceptional circumstances.
The proper role of Parliament is to provide a statutory framework for sentencing and to review and amend this from time to time in the light of experience and against the background of patterns of crime. That is what the

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Bill does. It has the support of the elected Chamber, and I hope that this House will consider our proposals on their merits and not on the basis of misplaced concern about the proper relationship between Parliament and the judiciary.
The third key element of our proposals is "honesty in sentencing" and the relevant provisions are set out in Part II, Chapter I of the Bill. We want the public, victims and offenders themselves to know that the sentence passed by the court is the term that the offender can expect to serve. That is not what happens at present. Indeed the noble and learned Lord, Lord Taylor of Gosforth, has said of the present arrangements:
"I believe public confidence in the system is eroded when convicted criminals are seen to walk free from prison after serving rather less than half their sentences, however good their behaviour may have been in the interim. Indeed, the system has now reached a point where the sentencing exercise in court has the appearance of a charade, with everyone engaged in a calculation of how much less than the announced sentence will actually be served".
Let me say straight away that the Criminal Justice Act 1991, which introduced the present arrangements, was an important step. I know that those arrangements continue to have their champions in this House. However, we believe that it is time for a more radical overhaul of early release arrangements and that our proposals offer real advantages over the present system. I should like to explain why.
Our proposals for "honesty in sentencing" are based on a number of key principles. First, we believe that the sentence served by the offender should match as closely as possible the sentence passed by the court, so that everyone knows exactly what the sentence means; secondly, any time off should be earned by the prisoner and not granted as of right; and thirdly, there should be a sufficient period of post-release supervision to help the offender settle back into the community and to provide proper protection for the public.
The present arrangements for parole and automatic early release will, therefore, be abolished. Prisoners will no longer be released after serving as little as half of their sentence. In future, the sentence imposed will be the sentence which is served, subject to a small discount which prisoners must earn through co-operation and good behaviour. In practice, prisoners servicing sentences of more than two months will be able to earn a discount of up to 16 per cent. of their sentence under the new earned early release arrangements set out in Clause 10. That will provide an incentive for good behaviour which is lacking under present arrangements. Prison governors will retain the power to award "additional days" as punishment for disciplinary offences and these would be set against any earned early release days.
The Earl of Longford: My Lords, I wonder whether I might ask the noble Baroness a question.
Baroness Blatch: My Lords, perhaps the noble Earl will forgive me but we have a very long day to get through. He will have an opportunity to speak on any point or raise any question that he wishes during the
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debate. If I start to allow noble Lords to intervene in my speech, I am afraid that we shall not get started on what will be a very long day.
Let me continue. In practice, prisoners serving sentences of more than two months—the intervention has left me unable to pick up at the place where I left off. I repeat, prison governors will retain the power to award "additional days" as punishment for disciplinary offences and these would be set against any earned early release days.
Consistent with the principle that sentencing should be as transparent as possible, Clause 8 provides for the court to specify when passing sentence exactly how much remand time should count towards the sentence.
Under Clause 13, all prisoners serving 12 months or more will be supervised after release for a period of 25 per cent. of the original term of imprisonment. As your Lordships may recall, the Bill originally provided for a 15 per cent. period of post-release supervision. Doubts were expressed by a number of individuals and organisations about whether that would be sufficient and, having considered the point, we have now increased the supervision period to 25 per cent.
One rather strange effect of the present arrangements is that those who are considered least likely to re-offend, and are granted parole, are supervised for the longest period, while high risk offenders who are refused parole are supervised for only 8 per cent. of their sentence. It is, therefore, not surprising that recidivism rates for such parolees are better than for those who are refused parole. Under our proposals, all offenders serving sentences of 12 months or more will be subject to a 25 per cent. supervision period whenever they are released. High risk offenders serving long sentences will be supervised for substantially longer than they are at present. The conditions of supervision, which are set when they are released, and the level of supervision carried out by the Probation Service thereafter will continue to take account of risk assessments where appropriate.
Special provision is made in Clause 17 for sex offenders for whom long periods of supervision can be of particular value. Clause 17 provides that offenders convicted of sex offences will be subject to extended periods of supervision after their release from prison, unless the court considers that the exceptional circumstances of the case do not warrant it. The period of supervision will normally be 50 per cent. of the sentence imposed or 12 months, whichever is longer. Supervision may, however, be for up to 10 years if the court so determines.
Under the new arrangements, breach of the conditions of supervision will be an arrestable offence. That will enable quick intervention to detain a person who has breached his conditions of supervision and to bring him before the court. The court will be able to impose a range of penalties including a community penalty and imprisonment for the outstanding period of supervision.
In my view this adds up to a coherent and comprehensive package of proposals which offer real improvements on the present arrangements for early release and post-release supervision. The proposals in the Bill will ensure greater transparency in sentencing.

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By providing that any reduction in sentencing must be earned, they will provide an incentive for good behaviour in prison which, as I said, is lacking at present. And, by providing for very long periods of supervision for sex offenders, and substantial periods of supervision for all offenders serving sentences of 12 months or more, the proposals will provide better public protection.
We have made it clear from the beginning that courts will be expected to take account of the changes in early release arrangements when passing sentence after the commencement of the relevant provisions. That is the purpose of Clause 22. Our intention, which is spelt out in subsection (1) of that clause, is that prisoners should serve approximately the same time in prison under the new early release provisions as they would have served under the present arrangements.
The actual time that an individual prisoner will spend in prison will depend in part on the prisoner's behaviour. It would not be appropriate or, indeed, sensible to ask the courts to achieve an exact match between the time a prisoner will serve under the new provisions and that he would serve if the existing arrangements applied to his sentence. What we have aimed to provide in Clause 22 is an approach which offers the best approximation and is straightforward for the courts to apply. This is achieved by requiring the court to impose a sentence equal to two-thirds of the sentence it would have considered appropriate if the offence had been committed immediately before commencement. This is a simple and straightforward formula. It will mean that the minimum term that must be served before a prisoner can be released will be longer by a few weeks and months but I do not shrink from that.
The proposals for automatic life sentences, mandatory minimum sentences and honesty in sentencing are the core provisions at the heart of the Bill. But the Bill also includes a number of other important provisions. Clauses 24 to 30 make provision in relation to the release of certain life prisoners. In part, those re-enact the existing provisions of the 1991 Act relating to prisoners serving discretionary life sentences. They also introduce new arrangements for the release of offenders serving a sentence of detention during Her Majesty's Pleasure, to give effect to the judgment of the European Court in Singh and Hussain. The power to set the tariff in such cases remains as now with the Home Secretary, and the new provisions place no restrictions on that. But in future the Parole Board rather than the Secretary of State will determine whether to release such offenders once they have served the tariff.
Part III of the Bill contains new powers and provisions relating to community sentences, disqualification from driving, the transfer and repatriation of prisoners, young offenders and mentally disordered offenders.
Clauses 31 to 36 provide the courts with new powers and greater flexibility when dealing with fine defaulters and persistent minor offenders for whom a fine is not a suitable penalty. In future, courts will be able to impose a community service order, a curfew order or disqualify from driving as an alternative penalty for fine default.
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Our aim is to ensure both that fines are paid and that imprisonment is only used as a sanction of last resort. The use of imprisonment for fine default has more than halved over the past 12 months or so—from 20, 157 in 1995 to 8, 220 for the first 11 months of 1996. The provisions for new community-based sanctions for fine default will help to reinforce that trend.
Clause 33 similarly allows the court to impose a community service order or curfew order on a persistent minor offender who has an outstanding fine and for whom a further fine would not be appropriate. Clause 35 provides a new power for the courts to disqualify offenders from driving either as an alternative or additional penalty for any offence. That will be an important and useful new sanction.
Imprisonment, community penalties and fines all have a part to play in the sentencing framework, and these new provisions are designed to ensure that the sentence imposed is effective and appropriate in all the circumstances of the particular case. That is also why Clause 34 removes the requirement to obtain the offender's consent to a community sentence, with certain limited exceptions. It is quite wrong that offenders should be allowed to dictate their sentence to the court.
Clauses 38 and 39, and Schedules 1 and 2, set out new arrangements for the transfer of prisoners between the various United Kingdom jurisdiction; and for the repatriation of British prisoners from abroad. Those changes are necessary in part as a consequence of the new sentencing provisions contained in the Bill. We have also taken the opportunity, in the light of experience, of operating the present arrangements to improve the statutory framework for prisoner transfers.
Clauses 40 to 42 contain important new sanctions in respect of juveniles. Following the successful trials of curfew orders monitored by electronic tagging, courts will in future be able to pass that sentence on 10 to 15 year-old offenders. And juvenile offenders will no longer be able to hide behind a cloak of anonymity. Courts will be able to allow the publication of offenders' names in appropriate cases, which is of course the normal practice in relation to adults. Clause 41 rectifies an anomaly in relation to the maximum penalty for indecent assault. It increases the maximum penalty for juveniles convicted of indecent assault on a male to 10 years, in line with the maximum penalty for adults convicted of that offence and in line with the maximum for other adults or juveniles convicted of indecent assault on a woman.
And, finally, Clauses 43 to 46 make provision for a new hospital direction which will provide the courts with greater flexibility in dealing with mentally disordered offenders. The court now has to choose between a hospital order and a prison sentence. But the present arrangements do not reflect the reality that some offenders need hospital treatment but also bear a significant degree of criminal responsibility for their actions. In future, the new hospital direction will enable the courts to direct the offender's immediate admission to hospital when passing a prison sentence. This means that the court can be sure that the offender will receive

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any necessary treatment in hospital at the earliest opportunity and can be returned to prison, if appropriate, to serve the remainder of the prison sentence.
That adds up to a formidable package of proposals. The Bill reinforces the powers and indeed the duty of the courts when sentencing serious, dangerous and persistent offenders. The mandatory penalties which are at the heart of our proposals are carefully targeted at crimes of particular concern to the public—serious violent and sex offences, domestic burglary and dealing in hard drugs. Our proposals for honesty in sentencing will restore credibility to the court's sentence and ensure proper supervision after the offender is released. The Bill will provide more flexible and effective community penalties, and new powers for the courts when dealing with mentally disordered and juvenile offenders. And most important of all, it will provide protection and reassurance for the public; and thereby help to improve public confidence in the criminal justice system. I commend the Bill to your Lordships' House.
Moved, That the Bill be now read a second time.—(Baroness Blatch.)
3.36 p.m.
Lord McIntosh of Haringey: My Lords, the House is grateful to the Minister for the conscientious way in which she set out the provisions of the Bill. She is right in saying that it is an important Bill. As evidence of that we need only to look at the long list of distinguished speakers who put their names down to contribute to this Second Reading debate.
It is important that we see the Bill in the context of the Government's whole approach to law and order. This is the 34th criminal justice Bill introduced since this Government came into power in 1979. That is equal to the entire number of criminal justice Bills introduced by any government between the years 1900 and 1979. We should beware of thinking that in some strange way quantity of legislation is equivalent to quality of legislation.
The truth is that the amount of legislation introduced by this Government is evidence not of the success of their law and order policies, but of their failure. We face the position where, since 1979, recorded crime has doubled. That is the truth of the matter. At the same time, we must recognise that the chances of getting away with crime have increased significantly. One example of that, which is one that is not affected by the mandatory determinate sentences in the Bill, is street robbery. There are five times as many street robberies now as there were in 1979; but a street robber has three times the chance of getting away with his crime. Another example is youth crime. There has been a 36 per cent. increase in recorded offences by young people since 1979 but also a 36 per cent. reduction in the number of young offenders dealt with by the courts. That is the context in which we should be looking at the Bill.
The Minister properly recalled the debate in this House on the White Paper introduced by the noble and learned Lord, Lord Taylor of Gosforth, on 23rd May last
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year. Anyone who sat through that debate, as I did, will agree that the thrust of the debate was not necessarily that all of the Government's proposals were wrong, but that they represented only a small part of the necessary reaction to the crisis in our criminal justice system.
The Government have chosen in this Bill, in what the Minister called the "core proposals", to concentrate on the length of sentences rather than other aspects of the criminal justice system. I have spoken about the debate in this House on 23rd May last year. It is fair also to say that the Second Reading debate on the Bill in the Commons in November of last year was also, in many ways, a remarkable debate. Your Lordships would not thank me if I spoke at length about the speeches from the Government or Opposition Front Benches but I think it is within the limits of order in this House for me to refer to the remarkable speeches of two former Conservative Home Secretaries; Mr. Douglas Hurd and Mr. Kenneth Baker.
Mr. Hurd reminded the House that the criminal justice system is not in the hands of the Home Secretary or the Government but rather of the police force, the Crown Prosecution Service, the judges, the magistrates, the prison service, the probation service, the Parole Board and so on. That is a consideration which ought to infuse our discussion of the Bill. He also said—I shall be careful just to paraphrase rather than to quote—that whether prison works depends not only on the length of the sentence but also on what happens in prison. That, again, is a theme to which we shall have to return as we consider the Bill. In a very interesting speech, Mr. Baker said that the prisons are full not so much of professional criminals but of professional prisoners; people who are—he used this phrase which I am sure I am allowed to quote—"wholly inadequate". He reminded the House of the implications, to which I shall be returning again, of the Woolf Report.
We have from another place an example of a wider horizon than has been offered by the text of the Bill itself or the way in which the Minister introduced it. We are reminded, as Lord Justice Lawton reminded the court in R v. Sergeant, of the purposes of imprisonment: retribution, deterrence, prevention and rehabilitation. I ask your Lordships to bear all of those in mind, not least the last of them, in your consideration of the Bill.
I wish to speak, first, about the issue of honesty in sentencing. I find—and a good many people outside find—that the Government's proposals on honesty in sentencing are confusing, self-contradictory and, of course, still evolving. In some ways they are evolving to the good. The Minister referred to the agreement that post-release supervision should be extended from the 15 per cent. originally proposed to a figure now of 25 per cent. It is only proper to welcome that change. But there will have to be many more changes if this part of the Bill is to go through in a satisfactory way.
The Parole Board's response to this part of the Bill is devastating. It states:
"The Bill puts the public at greater risk from the most dangerous criminals than existing parole arrangements".

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I very much look forward to the speech of the noble Lord, Lord Belstead, who is not only the chairman of the Parole Board but a former Leader of this House and has exceptional authority in speaking on these matters.
We have made our position on honesty in sentencing clear for many months now. We believe that the court should spell out the reality of the sentence at the time of passing sentence. For example, a sentence should be for two to four years, which is spelt out as being two years if there is full remission for good behaviour and parole, and four years if there is no remission and no parole. I know the Minister finds this amusing but some of your Lordships may perhaps think that there are serious issues to be considered. We consider that the court should specify the effect on the sentence of the time spent on remand and custody. There has been a great deal of confusion about the time spent on remand and custody. The prison service and the Home Secretary were at one stage locked in conflict on their interpretations of the existing law. I recognise the necessity to put that right. I hope that the Government have put it right in their drafting of the Bill.
Finally, we believe that the court should specify the earliest release date that can be associated with a given sentence. The point about these proposals is not only that they are much clearer than the Government are saying in the Bill but that they could be introduced straight away. The problem with so many of the Government's proposals, particularly the proposals on minimum sentencing, is that they will take years to introduce.
I turn to the issue of consistency in sentencing. This issue is of equal importance to honesty in sentencing but is one which is given very little attention in the Bill. There are enormous differences, not just between one magistrates' court and another but between one Crown Court and another, in sentencing in different parts of the country. I shall not give the examples that have been quoted in detail in another place except to say that they range from, for example, in the magistrates' courts in Staffordshire, Moorlands, one in six offenders brought before the court receiving an immediate prison sentence, whereas in Saffron Walden not a single defendant in the past year has been gaoled for a serious offence. There must be some reason other than genuine local differences to account for differences of that kind. I can assure the House that they apply in Crown Courts as well.
Is not the problem that we have inadequate Court of Appeal guidelines for sentencing, at least in some areas? I know that there are many guidelines. Perhaps I may quote Professor Andrew Ashworth of King's College, London:
"The decisions on domestic burglary are a veritable wasteland in terms of guidance".
Domestic burglary is one of the areas with which the Government have chosen to deal in the Bill. We must have some provision for the guidelines not only to be comprehensive and well understood but for the courts to have regard to them. We shall be addressing that issue in amendments to the Bill.
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I turn now to the most controversial of all of the issues in the Bill—the question of what we call progression but which the Government have interpreted as meaning mandatory sentences for subsequent offences. I note in passing that this represents a 180 degree U-turn from the provisions of the Criminal Justice Act 1991 under which the courts were required not to have regard to previous offences in reaching their conclusions about sentencing. Those provisions did not last very long and were unwise. But we have to consider the practicability of what is proposed in the Bill.
My party has supported in another place the mandatory life sentence for a second violent crime. That is not an imposition by government on the judges, because the tariff for a life sentence is set by the judge and the release date is still set by the Parole Board. However, there are still problems even in that clause of the Bill—Clause 1—with, for example, the list of offences. There has been a good deal of debate about the implications of Section 18 of the Offences Against the Person Act 1861, which, as has been pointed out, particularly by Sir Ivan Lawrence, has a fall-back for Section 20 of the 1861 Act. We have to ask whether the Crown Prosecution Service will prosecute under Section 18 if there is to be a mandatory minimum sentence.
Then there is the whole question of unlawful sexual intercourse with a girl under the age of 13. Only 55 per cent. of convictions for unlawful sexual intercourse with a girl under the age of 13 result in a custodial sentence. We have to ask whether it is right that that should appear in the list with the other violent crimes, which are included in Clause 1.
Mandatory determinate sentences in Clauses 2 and 3 are at the heart of the Bill, which has been sent to us, as the Minister has reminded us, by an elected Chamber. We recognise the pressure that there must be for exemplary sentences. Our approach to this part of the Bill will be to revise, not to wreck, the Government's proposals. As a revising Chamber, we believe that we should be examining and probing the exact meaning of the Bill and in particular the meaning of the phrase "exceptional circumstances". That phrase has one meaning in Archbold and another in the speech of the Home Secretary at Second Reading when he spoke about the possibility of an informant of great help to the police being "an exceptional circumstance" even though that is not something that was not foreseen in the more classical definition.
In searching for non-wrecking amendments to this part of the Bill, we would like to consider whether it would be desirable to add to the phrase "exceptional circumstances", the further phrase "in the interests of justice"; whether we should not be seeking greater precision by adding the phrase "exceptional circumstances" in relation to the offender or to the offence; and whether we should not be—and this is a much more complex issue which deserves teasing out at length—excluding from the tariff of qualifying offences for a mandatory minimum sentence those offences committed when the offender was a juvenile.
We would also like to consider other issues which would affect whether the mandatory minimum sentence would work. Unless it can be shown that it can, it is not

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worth enacting. I have mentioned the question whether the Crown Prosecution Service will prosecute in those circumstances. We also have to ask whether juries will convict. Here the American experience is of very great significance. We have to consider the implication of an increase of not guilty pleas despite what the Minister says, which I cannot find in the Bill, about a 20 per cent. reduction for a timely guilty plea. The evidence of those who apply mandatory minimum sentences is that there is an increase in not guilty pleas with subsequent effect on the court workload and especially on the speed of the justice system and in particular—and this is most critical—the youth justice system.
We have to ask what will be the effect of the admitted increase in the prison population. The Government say that there will be an increase eventually of 11, 000. We have to ask what will be the effect on prison conditions, rehabilitation, education and training. I refer here not only to Mr. Hurd's speech at Second Reading in the other place but also to paragraph 1.12 of the White Paper. There is also the effect on public expenditure. We have to ask the question whether Home Office future expenditure plans, as expressed in publications at the time of the Budget, are realistic to allow for these increases in the prison population. All these factors must go into the balance when we consider whether the Bill has got right the whole issue of progression and of the mandatory minimum sentence.
As the Government claim, if the issue is the protection of the public at the end of determinate sentences, it has to be said that that is not solved by longer determinate sentences. At the end of such sentences, offenders still go out into the country with, as the Government are ready to admit, less supervision than used to be available. I refer here not only to the Butler committee of 1975, with its advocacy of reviewable sentences, but also to paragraph 8.9 of the White Paper, which refers to the need for reviewable indeterminate sentences for sex offenders.
I must come to an end. There are many other issues with which we shall be concerned in Committee. As I have said, we are concerned with the period of post-release supervision and the provisions of the Bill in relation to what was said in the White Paper. I have already referred to paragraph 8.9. It says that at the end of supervision there is no way of monitoring and controlling the activities of offenders. That is a matter which must continue to give us pause. We shall be concerned with court psychiatric assessment schemes and in general with the whole issue of the treatment in the courts of mental disorder. My noble friend Lord Dubs will be making particular reference to that in the debate. We shall be concerned with testing the treatment orders for drugs, which we consider to be inadequately dealt with in this Bill. We shall be concerned with trying to simplify and rationalise the proposals for continuity of sentencing—which we are convinced that the Government have not got right yet—in order to make sure that the sentence changes proposed here have a broadly neutral effect.
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We did not vote against this Bill either at the beginning or at the end of its proceedings in another place. Clearly, we shall not be doing so today, neither are we opposing the Bill root and branch. But your Lordships' House has the responsibility of acting as a revising Chamber and I can assure noble Lords that we on these Benches will be playing our full part in that process.
3.57 p.m.
Lord Rodgers of Quarry Bank: My Lords, I believe that this is a bad Bill with few redeeming features, foolishly conceived, wrong in principle and deceptive in its relevance to the real fight against crime. It will be very expensive to implement, and that money would be far better spent on the prevention and detection of crime.
I am disappointed at the Labour Party's agnosticism or neutrality towards the central core of the Bill. I believe that the noble Lord, Lord McIntosh, confirmed that. I remember the clear speech of the noble Lord, Lord Williams of Mostyn, on 23rd May 1996 when he spoke out strongly in favour of the individualism of sentences. I thought then that his remarks about the White Paper would be carried over to our debate today on the Bill. It may be that when he comes to speak later we shall hear something different from him.
We must remember that the Labour Party did not vote against Second or Third Readings in another place. Indeed, as the noble Baroness, Lady Blatch, said very temperately today, it gave the Bill a measure of support. Despite the hesitancy of the noble Lord, Lord McIntosh, there are many noble Lords on these Benches and in all parts of the House who thoroughly dislike this Bill. It has been presented—and it may be so again today by some observers—as a conflict between the Home Secretary, Michael Howard, and the judiciary. The contributions of noble and learned Lords to this debate will be of very great interest.
The issues are for all of us concerned with crime and remedies, and especially false remedies, for it. It is not the custom of your Lordships' House to vote against a Bill at Second Reading. Were that not the case I would certainly advise my noble friends to do so as my colleagues did in another place. But I give notice now that at Committee stage from these Benches we shall support any amendment or, if necessary, table one of our own to replace "exceptional circumstances" with "in the interests of justice" or similar words, in appropriate places in Clauses 1, 2 and 3.
The noble Lord, Lord McIntosh of Haringey, said that he would like to consider adding the words "in the interests of justice" to "exceptional circumstances". He said that he would probe the meaning of those provisions when the time came. I should like to make it clear this afternoon that we on these Benches are very sure about what we want the Bill to do and about the way in which we believe that it should be amended. Those clauses go to the heart of the matter. Their purpose is plain in the text of the Bill. I agree that the Minister explained the Bill conscientiously and made clear exactly what those provisions mean.

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The Bill requires a court to impose a life sentence or a custodial sentence in specified circumstances. To that extent, it removes discretion from judges unless exceptional circumstances apply. Those exceptional circumstances have been narrowly defined by the Home Secretary. Indeed, on Second Reading, he chose to give as his exception somebody appearing before a court who gives the police exceptional help which enables them to bring a number of other serious criminals to justice. Clearly, the Home Secretary has somewhat of a fixation about "exceptional". I do not find that a reassuring example.
The alternative view, which we on these Benches support, is that the circumstances of each crime and of each criminal are such that only a judge sitting in court can decide the appropriate punishment. Some will say that interfering with the discretion of judges attacks the root of the separation of powers which is fundamental to our constitution and to the stability and smooth running of our society. That may be so—it is an important argument—and, despite what has been said earlier today, this Bill goes very much further than any previous legislation.
However, what is also important is that justice will be less often done and, despite what the Home Secretary may think, less often seen to be done. Many more people—11, 000 on the Government's estimate—will go to prison. I hear the argument that that will take 11, 000 more dangerous men and women out of circulation. They will be locked up and away from trouble. However, as I said in a debate on the Address—the noble Lord, Lord McIntosh, said this today—unless they are held in prison for ever, one day they will be turned out into the community. Longer sentences and too little money for rehabilitation and education will have the cumulative effect of creating more crime by criminals even more hardened in their criminal ways. At best, 11, 000 more men and women in prison will mean pushing the problem forward on to the next generation.
Home Secretaries have a particular responsibility to look beyond their own immediate term in office. Their duty is to take the long view. In difficult matters they should seek to lead public opinion, not simply bow to a passing mood or reflect the lowest common denominator of informed comment. Most Home Secretaries achieve that difficult task, but I regret to say that on his record this Home Secretary has not even tried.
In the prevailing mood—I am not referring only to Home Office matters, and least of all to this Bill—Ministers are often held to be responsible for everything. That is not a belief which most Ministers discourage because they believe that that belief itself may bring them some Brownie points. After long years in office they respond readily to the suggestion that if there is a perceived problem, they and they alone must come up with the solution. However, sometimes Ministers must say, "This is not a matter for me or for the Government. It is better to leave the responsibility where it lies". That is precisely what the Home Secretary should have done in this case. He should have said, "This is not a matter for me. It is not a matter for any Minister in any government at any time. It is far better left with the
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judges". In such emotive areas, it is better to stand up to the tabloid press and not to play to the gallery at a party conference.
Perhaps I may direct your Lordships for a moment to the 1996 British Crime Survey, which was published by the Home Office on 24th September last. I turn particularly to Section 7 on the fear of crime, which is the essence of the case for this Bill. The survey was conducted by the research and statistics directorate of the Minister's own department. It contains a paragraph showing trends over time in people's worries and anxiety about crime. It states of rape:
"Women's concern has not changed a great deal, being highest in 1988"—
nine years ago. It states:
"Worry about burglary was highest in 1994"
—three years ago—
"but fell back in 1996 to 1984 levels"—
13 years ago. It states of mugging:
"The proportion 'very worried' has varied less over time, but again fell back in 1996".
Elsewhere the survey states that the proportion of women feeling very unsafe—that is, when out at night on the streets—has not changed greatly over time. As for those who felt most in danger of physical attack, the lowest figure nationally was for the elderly—4 per cent. for elderly men and 3 per cent. for elderly women. The survey stated:
"A common media portrayal is of many people living as virtual 'prisoners in their home' because of fear of street crime".
But overall only 3 per cent. of women and 1 per cent. of men gave crime-related reasons for never going out at night.
I quote those figures from the Government's own publication because there is a need for perspective and balance and for respecting what those figures show. The fear of even a small minority of men and women is a fear which we must share and which must concern us all. At the same time, however, according to the Government's figures, those fears are no greater today than 10 years ago, so why is the Bill before us now and why is it in this form?
As for the prison population—we must be deeply concerned about this for reasons which are familiar to all of your Lordships—it hit a new record of 58, 504 on 6th December last and, despite the customary dip following the Christmas period, it is almost certain to exceed that by Easter. Last autumn the Director of the Prison Service, Richard Tilt, said that the prison population was set to rise by 250 to 300 a week. That seems to have been confirmed—at least at the lower end—by subsequent events; and that has happened, of course, without the effect of the provisions of this Bill. I should be grateful if the Minister could tell the House her estimate on present trends—the estimate made by her department for public expenditure and building purposes—of the likely prison population by 2010 without the addition of the 11, 000 new prisoners expected as a result of this Bill. Will the noble Baroness also tell the House where prisoners are to be accommodated when the prisons are full but the prison building programme remains uncompleted? Are they to

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be accommodated in disused military camps, in a former Pontins holiday camp (as has been rumoured) or is the front runner still a prison ship? Can the Minister say categorically that police cells will not regularly be used?
I should also be grateful if the Minister could clarify the costs of Parts I and II of the Bill in terms of their consequences for the prison population. In the debate on the Address on 24th October last, in response to a question from me, the Minister referred to an estimated peak of between £375 million and £425 million per annum some 12 years after implementation. That is the figure in the Financial Memorandum, with a minor change at the top end which has been raised by £10 million to £435 million per annum—a remarkably precise top end, given the wide range. I am curious about where the extra £10 million has come from, although it may be an error. I have seen no figures—I may have missed them, in which case perhaps the Minister can supply them today—showing the annual build-up to such figures or the cumulative figures over 12 years. These figures must exist for planning purposes. First, it would be helpful if the Minister could provide the figure for the first year of implementation and the figure for the mid-point, say the sixth year of the build-up. Secondly, can the Minister provide the cumulative figure up to year 12 when the annual cost is in the range to which I refer? The Minister has also referred to the role of private finance in respect of new prisons. Can she also say what element of capital falls under public expenditure and what is the cumulative total over the 12 years?
All of these figures are very relevant because there are alternative ways of using this money. It would be fatal to the purposes of this Bill and extremely damaging to the fight against crime if adequate provisions were not made for those in prison to enable those who could be rehabilitated and trained to take their place in the community afterwards. If that is neglected nothing that your Lordships may do in this Bill today or any other day will achieve the purpose that we all have in mind.
In the memorable and sometimes moving debate in your Lordships' House on 23rd May last the noble and learned Lord, Lord Taylor of Gosforth, said:
"I venture to suggest that never in the history of our criminal law have such far-reaching proposals been put forward on the strength of such flimsy and dubious evidence".—{Official Report, 23/5/96; col. 1025.]
He was referring to the White Paper. But those proposals, unchanged in substance, form the core of this Bill. I am content to rest on what the noble and learned Lord, Lord Taylor, said on that occasion.
4.12 p.m.
Lord Bingham of Cornhill: My Lords, I am in complete agreement with the noble Baroness and previous speakers in recognising that current levels of crime in this country are a source of acute and proper public concern. I venture to suggest that the judges have cause to feel this concern with particular immediacy since they witness day by day the devastation caused by violence, lawlessness and abuse. We know, perhaps better than anyone, that the victims of crime are not by
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and large the rich and privileged but the less well to do: the residents of run-down inner city tower blocks and neglected housing estates and those who are in many ways the most vulnerable and defenceless members of society. I hope that your Lordships will give no credence to the subversive lie sometimes heard that the judges are, for some reason, indifferent to the evils of crime.
There are nevertheless three major ingredients of this Bill which cause me and those of my senior colleagues outside this House whom I have consulted profound anxiety. I refer to the proposal to shorten remission and abolish parole for prisoners serving determinate sentences; the proposal to impose automatic life sentences in certain specific cases; and the proposal to impose mandatory minimum sentences on repeat burglars and drug dealers. These provisions are likely to have a profound effect on the lives of those to whom they apply and the administration of criminal justice in this country. That is not in itself an argument against them, but it is necessary to test each of the proposals by asking four questions. Will it be just? Will it serve to reduce levels of crime or increase the protection of society? Will it be cost effective? Will it work in practice? I feel bound to tell your Lordships that in my judgment these measures conspicuously fail to pass all four of those tests.
I begin with parole and remission. As many of your Lordships well know, the existing regime was put in place in 1991 following a far-reaching, careful and respected inquiry by a committee presided over by the noble Lord, Lord Carlisle of Bucklow. It draws a distinction between short term and long term prisoners, the dividing line being a sentence of four years. A short term prisoner is entitled to release on parole, subject to good behaviour, half-way through his sentence. For the whole of the remaining period of the sentence such a prisoner is liable to recall to prison if his conduct gives cause for concern and for the first half of the remaining period he is subject to supervision in the community if he has been sentenced to 12 months or more. A long term prisoner is eligible for the grant of parole by the Parole Board having served half his sentence, and he is entitled to be released, again subject to good behaviour, after two-thirds. Such offenders are also subject to supervision on release and liable to recall until the end of their sentence.
This regime has certain obvious strengths. It is clear and intelligible. It ensures that every day of the sentence pronounced by the court has practical content. It enables offenders to be reintroduced into the community conditionally. It enables decisions on the release of more serious offenders to be based on the experienced judgment of an independent body. It enables offenders whose behaviour in the community causes concern to be recalled quickly and with the minimum legal formality and delay. It avoids the prolonged incarceration of those whom it is judged safe to release. It is a regime that has worked well in practice. The validity of the research that led to its adoption has not been in any way impugned.
One asks why such a system so recently instituted is to be cast aside. The answer is to be found in the slogan "Honesty in Sentencing". Your Lordships will react with surprise to the suggestion that a scheme approved

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by the noble Lord, Lord Carlisle, can be regarded as other than honest in any way. Of course, it is not, as I have tried to demonstrate. If the system has not been understood, that problem can be met by judges explaining the effect of the sentences they pass, which they have not been encouraged to do, or by Ministers seeking to educate the public, which as far as I know they have not attempted to do.
The effect of the new provisions is that prisoners, long or short term, will spend a greater proportion of the sentence pronounced by the court behind bars. That proposal standing alone may not be objectionable, but there are overwhelming disadvantages. First, the period of a sentence that a prisoner will not have to serve will be less clear and predictable than at present. Secondly, the overall period of control by supervision and licence will in all cases be shorter than at present. Thirdly, the invaluable provision for recall during the licence period will be lost. Fourthly, judgment on release of more serious offenders will no longer be made by the Parole Board and prisoners will remain in prison when their continued confinement serves no useful public purpose. Fifthly, the proposals for remission—a maximum of three days a month for those whose behaviour attains the prescribed minimum standard and a maximum of three extra days a month for those whose behaviour has exceeded that standard—will prove incapable of fair operation.
Prisons vary widely in the programmes and facilities that they offer, which become more and more restricted as the prison population rises and the squeeze on the prison budget bites. In many cases it will not be practicable for a prisoner to demonstrate compliance with more than the minimum standard. The decision whether to make an allowance of the additional three days—a decision to be made every two months (six days per two months)—will in practice have to be made by a uniformed landing officer. It would be hard to devise a system more obviously open to corruption or allegations—true or false—of favouritism, inconsistency, racial bias or discrimination, and there will inevitably be a flood of appeals unless the additional days are routinely allowed. Sixthly, research figures—so far as I know, unchallenged—convincingly show that good behaviour in prison is not on its own a reliable indicator of lawful behaviour on release.
It is the intention of the Bill that offenders should not spend longer in prison than they now do. To that end, it is provided in Clause 22 that judges should impose sentences two-thirds of the length of the sentences they would otherwise have passed. If this provision should ever become law, the judges will of course do their best to comply with it. But I have grave fears as to whether they will succeed in doing so. As the noble Lord, Lord Windlesham, has highlighted in volume 3 of his important book, various elements of the mass media have a clear agenda of arousing public disquiet about allegedly lenient sentencing. As a result, judges are frequently and routinely castigated for passing the sentences they do. It requires little imagination to foresee the outcry there will be when a statute, commended to the public as a tough law and order measure, leads to the imposition of sentences one-third
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shorter than the public and the press are accustomed to hear. This provision also has the effect—apparently unforeseen by the draftsman—of reducing from six months to four the maximum sentence which can be imposed by a magistrates' court, and of revising the maximum sentence of detention on a young person. This is the almost inevitable consequence of ill-considered tinkering with what is, in truth, a complex system.
The slogan "Honesty in Sentencing" may be new. The underlying idea is not. The principle that an offender should serve the sentence pronounced by the court without reduction was briefly in force following the Penal Servitude Act 1853. It did not work then. This modified version of that principle will achieve nothing of value now. It would be tragic indeed if, 150 years later, we had to learn this lesson again.
I turn to the provisions of Clause 1, requiring the imposition of an automatic life sentence on a second conviction of certain serious sexual and violent offences. Unlike the provisions for remission and parole, this clause addresses a serious penal problem. There is a hard core of offenders sentenced to determinate terms of imprisonment who represent a serious danger to the public on being released. It is appropriate to consider what additional protection can be provided. Unfortunately, the solution contained in Clause 1 is irremediably flawed.
It is a cardinal principle of just sentencing that the penalty should be fashioned to match the gravity of the offence and to take account of the circumstances in which it was committed. Any blanket or scatter-gun approach inevitably leads to injustice in individual cases. Such a result is, I suggest, obvious. But if it is not, it is borne out by authoritative independent research, based on an analysis of those prisoners whom the Parole Board on last review considered to be most dangerous. The research shows that nine out of 10 of these high risk offenders would not be covered by Clause 1, and that one-third of those who would be covered would not be regarded by the Parole Board as dangerous. Your Lordships will be aware that those who perpetrated the tragedies at Hungerford and Dunblane were men with no criminal record. This measure is simply misdirected.
It will also give rise to indefensible anomalies. Commentators have given examples. A man who had sexual intercourse at the age of 16 with a girl of 12 will be automatically sentenced to life imprisonment if, in middle age, he intentionally causes serious injury in the course of a public house brawl. A man convicted as a teenager of wounding with intent to cause serious injury will be automatically sentenced to life imprisonment if, at the age of 50, he returns home drunk and attempts to have intercourse with his wife against her wishes. These are not anomalies of the kind which even the best legal system occasionally produces. They are symptoms of a radically unsound approach.
To some extent, measures of this kind are also self-defeating, for no defendant faced with an automatic life sentence on conviction is likely to plead guilty. This not only means, as evidenced in the United States, a vastly increased workload of contested trials, with all

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the expense and delay and trauma for vulnerable victims and other witnesses which that involves. It also means that in some cases, perhaps because of intimidation, there will be acquittals, depriving the public in such cases of any protection at all.
These ill results may be in part avoided, but if they are the process of avoidance will itself be deeply objectionable. In the United States, where measures of this kind have been in force for 20 years, experience shows that the effect of taking discretion away from the court is not to destroy it but to transfer it—away from the judge and to prosecutors, defence lawyers and juries. Where on the facts of a particular case the imposition of an automatic penalty offends the conscience of an ordinary person, American prosecutors have charged offences less serious than the facts warranted which attracted no automatic penalty; or pleas of guilty have been offered and accepted to such lesser offences; or juries have convicted of such lesser offences. Sentencing discretion should not be exercised by crown prosecutors, or defence lawyers, or even juries. It should be exercised, as it always has been, by judges.
But what if a judge fails to impose a life sentence in a case covered by Clause 1 where the safety of the public demands that he should? What then? There exists a procedure tailor-made to meet that problem: the power of the Attorney-General to seek to refer sentences to the Criminal Division of the Court of Appeal on the ground that they are unduly lenient, asking for substitution of a more appropriate sentence. The power exists where a determinate sentence has been passed and it is felt that the protection of the public demands an indeterminate life sentence. The proposal in Clause 1 might foster the impression that the Attorney-General had repeatedly made such application in such cases and been denied. That is not so. Neither he nor the Home Office has ever to my knowledge suggested that it is. During the calendar years 1995 and 1996, the Court of Appeal, on references by the Attorney-General, reviewed the cases of 86 offenders in whose cases a life sentence could have been imposed. In only four of those cases did the Attorney-General ask the Court of Appeal to substitute a life sentence. In two cases the court did so, in two it did not. In one other case it did so although it had not been asked. Where such an application is made, it is judged on its merits and an indeterminate sentence substituted where the public interest is shown to demand it. It is open to the Attorney-General to submit that prevailing levels of sentence for a particular offence are too low; in a recent case, the Court of Appeal accepted that submission and increased the level. But such decisions will be made on a case-by-case, and not on a scattergun, basis. If this procedure is for any reason thought to be unsatisfactory—and I know of no reason why it should—consideration should again be given to the reviewable sentence recommended by the Butler Committee 20 years ago.
Thirdly, I would like, if I may, to say something about Clauses 2 and 3 of the Bill; the proposed mandatory minimum sentences for Class A drug dealers and burglars on third conviction. The terms proposed—at current levels, the equivalent of ten and a half years in
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the one case and four and a half years in the other—do not exceed those which serious professional criminals in these fields would now expect to receive—drug dealers are, indeed, routinely sentenced to very much longer terms.
The vice of these proposals again lies in their indiscriminate, scattergun nature. It is one thing—and a very serious thing—to operate as a large wholesale supplier of heroin or cocaine. It is quite another to buy two ecstasy tablets at a party, one for yourself and another for a friend. Yet both fall within Clause 2 of the Bill. It is one thing—and again a very serious thing—to strip someone's home of its valuable contents, accompanied perhaps by terror to the householder or gratuitous and offensive vandalism. It is quite another to take a gallon of petrol from an outhouse or to reach through an open window and take a pint of milk. Yet both are domestic burglary within Clause 3. A skilful professional burglar who avoids detection until he is brought to book on the same occasion for 50 domestic burglaries or a professional drug dealer eventually tracked down for the first time are not subject to the mandatory penalties. A feckless small-time burglar who is caught each time, or an addict dealing in small quantities at street level, is so subject. Anomalies of this kind are not the stuff of sound lawmaking.
Many of the objections to Clause 1 apply to Clauses 2 and 3 also. There is the same certainty of injustice in individual cases if account cannot be taken of the gravity of the offence, the pattern of offending, the lapse of time between offences and the circumstances of the offender. There is the same risk that prosecutors, defence lawyers and juries will connive at circumvention of the mandatory terms in order to do justice in individual cases. There is the same risk of a sharp increase in the proportion of contested trials, as in California where the rate of trial has increased two and a half times. But there is here an additional vice; it is proposed that the maximum discount from the mandatory minimum penalty should be 20 per cent. That is below the discount now frequently allowed, and well below that where a defendant is willing to give valuable intelligence to the Crown or to spare a victim the trauma of giving evidence.
The current practice of the courts is the result of hard practical experience. If a defendant is to betray a gang of professional burglars, or the members of a powerful drug cartel, putting his own security and that of his family at risk, he needs a generous inducement. No knowledgeable observer could regard 20 per cent. as enough. And there is yet another vice. If these sentences are to be revised upwards, there will be an inevitable upward effect on other sentences, where necessary to maintain differentials or achieve broad comparability. There is bound to be a ripple effect. I apologise for detaining your Lordships for longer than I should—
Noble Lords: No, no, carry on!
Lord Bingham of Cornhill: My Lords, the justification advanced for Clauses 2 and 3, so far as one can gather, is twofold. The first is the principle, christened "incapacitation" by our American cousins,

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that so long as a person is in prison he cannot commit crimes. That is of course true. But the effect is very small. Recent Home Office research calculates that a 25 per cent. increase in imprisonment is required to reduce the number of offences by 1 per cent. No adequate justification is to be found here.
The second suggested justification is rested on the deterrent effect of these mandatory penalties. Both general and individual deterrence have an accepted place in sound sentencing, but deterrence cannot justify these mandatory penalties. It is known that only about 3 per cent. of reported crimes lead to convictions, so a rational, calculating criminal would think it worth taking the chance. But criminals are not, in the main, rational and calculating. As the Home Office itself said in 1990:
"Deterrence is a principle with much immediate appeal … But much crime is committed on impulse, given the opportunity presented by an open window or an unlocked door, and it is committed by offenders who live from moment to moment; their crimes are as impulsive as the rest of their feckless, sad, or pathetic lives. It is unrealistic to construct sentencing arrangements on the assumption that most offenders will weigh up the possibilities in advance and base their conduct on rational calculations".
That informed judgment is reinforced by American experience. Between the early 1980s and December 1995, the heyday of mandatory minimum sentences, the American prison population rose from around 329, 000 to nearly 1.6 million. Not, your Lordships may think, a persuasive advertisement for the principle of deterrence.
The Attorney-General's power to refer unduly lenient sentences to the Court of Appeal does not apply to the offences covered by Clauses 2 and 3. If these clauses address a real problem—in my judgment they do not—the solution lies in an extension of the Attorney-General's power. If there is indeed a malignant disease, that is the obvious cure.
It has been suggested that the anomalies I have highlighted in Clauses 1, 2 and 3 and in the maximum discount of 20 per cent. on a plea of guilty, will be met by the repeated qualification based on "exceptional circumstances". This argument is based on a misconception. In the closely analogous context of suspended sentences, reflecting the clear meaning of "exceptional" as a familiar everyday expression and seeking to give effect to the intention of Parliament, the courts have given the word a literal and narrow meaning. It cannot sensibly mean different things in these two contexts. And I must tell your Lordships that to an experienced criminal judge very little will appear to be genuinely exceptional: while the facts of individual cases will be infinitely diverse, the broad patterns of criminal behaviour are in the main as repetitive as the seasons. This qualification contains no route of escape from the vice of these proposals: it simply obliges the judges to choose between emasculating the statute and doing what they regard as injustice.
My Lords, I have almost done. But I would, in closing, urge your Lordships to bear in mind those of our fellow citizens to whom these provisions will in the main apply. They are mostly young, in their late "teens" or early 20s, and mostly male. They have in very many cases endured extreme deprivation: broken homes; disturbed childhoods; poverty; periods in and out of care; abuse of various kinds; truancy and exclusion from
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school; unemployment; addiction to alcohol and drugs; and a lack of all those beneficial maturing influences which most of us have been able to take for granted.
I do not insult your Lordships by suggesting that these are innocent victims of determinist causes beyond their control. Of course not. But I do suggest that in discharge of our duty to our fellow men we should, instead of spending billions on new prisons, double and redouble existing efforts to identify and treat delinquents at the very earliest sign of delinguency, before—long before—they are sucked into the destructive maw of the penal system.
Noble Lords: Hear, hear!
Lord Bingham of Cornhill: In that way, my Lords, we shall treat the disease and not the symptoms.
In 1910 Mr. Winston Churchill, speaking as Home Secretary in another place, drew attention—and I shall not commit the unforgivable sin of quotation—to the need to rehabilitate convicted prisoners in the world of industry, to make tireless efforts to find curative and regenerative processes and to maintain, "an unfaltering faith that there is a treasure", if only one can find it, in the heart of every man.
That was the thinking—wise, humane and moral—which animated penal thinking in the early years of this century. If, as the century and the millennium slide to a close, our penal thinking is to be judged by the thinking which animates this Bill, then I, for one, will shrink from the judgment of history.
4.41 p.m.
Lord Tebbit: My Lords, I suppose it must be the shortest straw that any one could draw in a parliamentary lifetime to rise to speak in support of a Criminal Justice Bill so comprehensively attacked by no less a figure than the Lord Chief Justice in the way that we have just heard. As ever, the noble and learned Lord, Lord Bingham, has made a most powerful speech—a speech not only of a most distinguished judge but also of a great advocate. But I believe that there is a question that he must ask himself, as indeed we should all ask ourselves; namely, why it should be—if he is right in all he has said—that not only do the general public outside Parliament believe that something akin to this Bill is needed but also the great majority of the Members of the other place should have reached that conclusion too?
We would be wise to stand back for just a moment and ask ourselves something about the nature of the increase in crime which has been besetting us in recent years. Quite clearly, the barriers against crime have fallen in many ways in recent times. I suggest now that the principal reason why people are beginning to think that they should not steal is not that there is an external commandment—that is, a commandment from outside our society which says, "Thou shalt not steal"—but that there is a prospect that one may be "nicked", taken to court and charged under the theft Act, or whatever it is.
The problem for our society is that as the moral and social imperatives against crime have weakened, particularly at those early stages of which the noble and

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learned Lord spoke, so perhaps we have been too late and always somewhat behind the game, if I may use that expression, in increasing the penalties to indicate not only that society still disapproves of crime but also to exercise some form of deterrent effect. Of course, as the noble and learned Lord said, so many of our criminals are inadequate. But, as he also wisely said—and it was a point that I believe the noble Lord, Lord Rodgers, may have slightly omitted to understand—so many of their victims are those who live with poor, reduced and unhappy circumstances round about them.
I suspect that there are a good many people outside this House in those circumstances—for example, in tower blocks in the decayed inner-urban areas—who, if they had heard our debate so far today, or even at the end of the day, would be inclined to say, "It's all right for them. They don't suffer crime in the way we do". While no doubt all of us, whether rich or poor and from all walks of life, would certainly uphold what has been said today about the need to improve our penal system and its effect upon those who fall into what I believe the noble and learned Lord described as its "destructive maw", I believe that there are many outside who would say that something more is necessary.
I found the speech made by the noble Lord, Lord McIntosh, most interesting and thoughtful. Again, it underlined our common cause in such matters, even if it exposed some of the differences which exist. However, I do not believe that they are across the Floor of the House particularly, although, as we are discussing a government Bill, there will naturally be an element of that. The noble Lord made quite an amount of the views of my honourable friend Sir Ivan Lawrence and those of my right honourable friends Mr. Baker and Mr. Hurd. However, I have to remind the noble Lord that, in the end, although Mr. Baker did not vote for the Bill, Mr. Douglas Hurd and Sir Ivan did.
I also believe that the noble Lord, Lord Rodgers, underestimated the effect of mandatory minimum sentences. Certainly among those of us who are capable of being deterred, as opposed to some of those who, as the noble and learned Lord, Lord Bingham, said, may not be capable of being deterred, they do have their effect. After all, they are commonly used against motorists. As far as I am concerned as a motorist, they have a very marked deterrent effect. If they did not, I can assure noble Lords that it would not be the fear of being deterred doing 100 m.p.h. on a motorway which would make any difference to me; indeed, it would certainly make no difference at all. It is the fear of losing my licence which makes the difference to me, and many others.
As always, it is a privilege to hear in this House the views of such distinguished members of the judiciary on a Bill of this kind. One of the advantages of this place is that we enjoy not only the wisdom of the Bishops but also the counsel and the experience of the judiciary. If I may say so, it is always more impressive and better to have those views expressed here than on the radio, on television programmes or in press reports.
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I was concerned to hear on the radio and in press reports in the past few days the views of a number of judges on the Bill now before us. It is a great pity that so many judges have followed the rather unfortunate example of Judge Pickles, who could not resist talking into any microphone put in front of him. I believe that the standing of the judiciary has been damaged by an excessive entry into the political (and not, I hasten to add, the party political) field, not least because, once they enter this field, it opens the way to criticism of judges.
I understand the resentment of some judges about parliamentary guidance. But I suppose it is a two-way street. If I may say so, there are a number of us in politics who have at times resented the extension of the doctrine of judicial review in the way that has happened in recent years. At any rate, as a result of those happenings, especially that of judges speaking so much in public outside this House, I find myself, having almost all of my life regarded it as entirely improper for politicians to criticise the judicial conduct of judges, now doing so; and not too infrequently, I fear, in my role as a tabloid journalist. In my life, not just as a journalist or as a politician, but as a private citizen, I find the public are more confused and concerned about sentencing policy than any other aspect of criminal law. I do not believe it is enough for the noble and learned Lord the Lord Chief Justice to imply that it is the business of other people to explain to the public at large what judges are doing as regards the way in which they sentence; I believe that is not least the responsibility of the judiciary when they speak on these matters, and preferably in this House rather than outside.
I believe the Bill addresses the concerns of ordinary men and women in the street. In that respect it will help to stem what I fear is a growing loss of respect for the Bench in our country today. People simply cannot understand why an offender given a sentence of 12 months should walk totally free, by right, in six months. The noble and learned Lord made a strong case as to why it should be that way, but I think that battle has been lost. The public simply do not understand that, and I do not believe that we can at this stage bring them to understand. That is particularly the case if the offence is one for which Parliament has set a maximum sentence of 12 months, because that then becomes a term which cannot be served. As regards sentences up to four years, again, four years does not mean four; it means two, and in many cases even less as time spent on remand may be counted against the sentence under a formula so arcane that even those who had administered it for decades suddenly decided they had misunderstood it and quite wrongly—as it later transpired—released a number of criminals before their due time.
One can argue—I am sure that many of us will argue in Committee—that the detail of provision in this Bill might be improved. But it is hard to dispute, if justice is not merely to be done, but is seen to be done by the victims and the general public, the broad principle—subject to a clear formula for remission as a reward for good conduct in gaol—that the sentence served should be the sentence given. What is more, I am clear that such remission for good conduct is not, or should not

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be, given in the hope that a criminal who is good in prison may be good after his release. That is a somewhat forlorn hope. It is there to be given or withheld as an incentive to good conduct in prison. What the noble and learned Lord, Lord Bingham, said about the possibility of corruption and the possibility of pressure within prison is surely an indictment not of this Bill but of what goes on in prison and the difficulty which successive Home Secretaries have had in bringing our prisons more fully under control in that respect. A second feature of public concern is that habitual—
Lord Thomas of Gresford: My Lords, does the noble Lord support the concept that a judge when sentencing should explain in detail how much time a prisoner will serve, how much will be on licence and all the circumstances surrounding that sentence? Would that meet the noble Lord's concerns as regards the public failing to understand what sentencing means?
Lord Tebbit: My Lords, I realise that has not been the custom and there have been various pressures against it to date. However, it would be a good thing were it to be done. However, as I have said, we are now at the stage where it is probably almost too late to regain the confidence of the public by so doing.
A second feature of public concern is that habitual criminals seem not to suffer an appropriate penalty for repeated offences. The noble Lord, Lord McIntosh of Haringey, referred to the view of my right honourable friend Kenneth Baker that many of those in prison are professional prisoners rather than professional criminals. He is probably right. However, the man in the street would probably say, "It may be that there are some in prison who should not be there, but there are a darned sight more who are out of prison who ought to be there". That he would see as the purpose of this Bill.
In some cases of violence and some sexual offences the maximum sentence is life. That is rarely used. Indeed, life terms are not often served even by those guilty of homicide. I remind the House that since 1963, 87 people have been killed in England and Wales by persons previously convicted of homicide and subsequently released to kill again. That does not say too much for our efficiency in deciding who should be released from gaol. The rate of such killings is, sadly, increasing and currently runs at about four cases a year.
We are told that in 1994 more than 200 offenders convicted of a serious sexual or violent crime were reoffenders. In their case prison had not worked, nor was it given a proper second chance to do so by keeping those offenders out of circulation. Fewer than 5 per cent. received the life sentence which was available to the court. Even those, of course, would be able to be released should the Parole Board so decide. One has to ask whether it is right that courts seem determined not to use the sanction which Parliament has provided to protect the public?
So far I have not heard a good enough answer to that question. Therefore, I intend to support the proposals put forward by my right honourable friend the Home Secretary. That also applies to the proposed mandatory sentences for professional dealers in hard drugs. As
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I understand it—I seem to have been corrected by the noble and learned Lord the Lord Chief Justice—that would apply to people casually selling the odd ecstasy pill. I hope that is not so, because I believe that is not what the public would understand by a professional dealer in hard drugs. It is important that people who are tempted to commit such crimes should know the penalty they will pay for a third offence, and not be able to delude themselves that they will get away with a sob story of some kind and a lighter sentence.
The same is true for professional burglars. Here Parliament has prescribed a maximum sentence of 14 years. However, I am told that even after multiple convictions the average sentences are under two years. When my noble friend replies to the debate perhaps she will tell us how often, if ever, that maximum sentence which Parliament has prescribed is used.
Finally, the proposals to improve the supervision of sex offenders seem to me to be a step in the right direction. Clearly there is room for discussion about all these provisions, as indeed there is on much else in the Bill. No doubt there will be discussion in plenty. Overall, however, I welcome the Bill because I believe it is in line with the views of the general public and will do something to restore the confidence of the public in the judicial system. Perhaps that is the most important reason for having it. I hope that at the end of the day, whatever the outcome of the Bill, it will be a step forward in the process of restoring the confidence which I believe the public have lost in our judicial system.
4.58 p.m.
The Lord Bishop of Oxford: My Lords, there are a number of reasons why the Church of England has a deep interest in this Bill. First, we have chaplains in every prison in the country, ministering to both inmates and prison officers. This is a frontline ministry, offering its own special perspective on these important issues. Secondly, we have parish priests on the ground in all the areas most affected by crime. Even in Oxford I have one vicar living on an estate whose vicarage has been broken into five times in as many years, and that is by no means exceptional. Your Lordships may well remember the parish priest working on such an estate in Liverpool who was killed last year in the course of his ministry. Therefore, we certainly endorse 100 per cent. the Home Secretary's stated intention to make sure that there are fewer victims.
It is against that background that I express a number of real worries about the Bill before us. First, it is fundamental to both considerations of justice and the legal system that punishment should be proportionate to the crime. Automatic life sentences for those who have been twice convicted of certain serious violent or sexual offences allow virtually no discretion for the judge to take into account mitigating circumstances. For that reason the General Synod of the Church of England, when debating the system of mandatory life sentences in 1995, firmly rejected that system. It was strongly felt that it could give rise to many injustices.
Let me take one example from the area of marriage and family violence which has much concerned the Church of England recently, as it has this House. In the

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Synod debate, Chancellor Conningsby, gave the example of the wife physically abused by her husband. She attacked him but he had not provoked her immediately before the assault. She did not mean to kill him but she did so. The judge did not wish to sentence her to life imprisonment for murder, but under a system of mandatory sentences, if in relation to the Bill it were a second offence, he would have no option but to do so.
It is true that the Bill before us offers the possibility of that not being the case if,
"there are exceptional circumstances which justify not doing so",
and that phrase is also used in relation to mandatory minimum sentences for other categories of crime. But there seems little confidence in the judiciary that this will provide the kind of discretion that is necessary for a fair sentencing policy, as the noble and learned Lord, Lord Bingham, has stressed.
In relation to the mandatory custodial sentences of at least seven years for drug trafficking offences and three years for domestic burglary, I should like to highlight the potentially damaging effects of that on certain kinds of offenders. As I understand it—if I am wrong I hope that the Minister will put me right—the mandatory sentence does not enable a distinction to be made between the large-scale trafficker in drugs who certainly deserves a really heavy sentence and addicts who sell small quantities to support their own addiction. Similarly, in the case of burglary no distinction would be made between the hardened professional criminal and the amateur teenage burglar desperately trying to find money to feed his drug habit. And this leads to a fundamental point.
Mandatory sentences will prevent judges in many cases from passing a sentence which is most likely to prevent reoffending. As we all know, an increasing number of burglaries are driven by the need to feed the drug habit. A survey in March 1996 by Cleveland Probation Service of a sample of offenders convicted of three or more burglaries found that 36 per cent. had drug-related problems. This underlying factor frequently does not become evident until after an offender has been convicted on a number of occasions. Where such an offender is willing to co-operate with the probation officer combined with participation in a drug rehabilitation programme, this is much more likely than imprisonment to prevent further offending. If mandatory prison sentences were in operation the courts would be forbidden to use this option. Although courts have the power not to impose the minimum sentence in exceptional circumstances, situations such as this are far from exceptional and, therefore, could not be appealed to by the court.
This in turn leads on to an even more fundamental point, which is why I and so many in the Church find this Bill deeply dismaying. Huge sums of money are to be spent building and maintaining new prisons. On a conservative estimate this will result in additional recurring costs of between £375 million and £435 million per annum some 12 years after implementation. There are more effective ways of using this money to combat crime.
I entirely agree with the noble Lord, Lord Tebbit, about the importance of deterrence. There is no doubting that that is crucial in the kind of fallen society in which
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we all live. But it is well known that the length of a sentence in itself is not a deterrent. The only real deterrent for a criminal is the high probability that he will be caught. As the noble Lord, Lord Tebbit, put it, it is the prospect of being nicked. This points to the conclusion that if more money is to be spent, it would be better spent helping the police to be as effective as possible in catching and prosecuting criminals. Then there is the fact that some alternatives to prison are now much more effective in preventing reoffending. Research suggests that some types of community supervision can reduce reoffending by between 20 per cent. and 50 per cent. more than other types of work with offenders. Those include a range of highly focused programmes which confront and change anti-social attitudes and offending behaviour, teach offenders to restrain aggressive and impulsive behaviour, tackle alcohol and drug problems and provide skills, training and employment. The research indicates that these programmes have better results when carried out in the community than in custody, though they can also be effective when applied in prison settings.
In the long term, and one of the advantages of being a bishop is that we can and should think in the long term, there are still more fundamental and more effective ways of tackling crime. The additional annual expenditure eventually needed to finance the proposals in the Bill would be equivalent on a conservative estimate to the annual cost of 200, 000 nursery school places. A similar point can be made in relation to the parenting programmes which are so desperately needed. Serious research in America shows that every dollar spent on parenting programmes saves up to 6 dollars that would have to be spent during adolescence on crime prevention and welfare provision. Money spent at an early age helping parents and nursery schools provide an ordered, caring environment is the only way in the long run in which a government can tackle the roots of crime, for people's patterns of behaviour go awry at a very early age and it is both difficult and costly to change those patterns later in life.
There is sometimes an unhelpful polarisation on penal debates between those who are allegedly tough on crime and those who are allegedly soft. We all need to be tough on crime. Crime is, quite simply and without qualification, totally unacceptable. But we then have to explore as quietly and rationally as possible the most effective ways of reducing crime. This Bill is disappointing because in the judgment of many in the Church it takes penal policy in totally the wrong direction: one that is costly, unlikely to work and potentially unfair. At the same time, alternative, better, ways that are more likely to work, more cost effective and designed for the next generation as well as this have not been followed.
5.7 p.m.
Lord Woolf: My Lords, a predecessor of the present Home Secretary suggested that prison was an expensive way of making prisoners worse. If this Bill is implemented, it is my fear that it will prove to be an extremely expensive way of making the criminal justice

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system worse. The Bill has perhaps some virtue in relation to fine defaulters, and the transfer of prisoners. But its principal provisions are objectionable on at least six grounds. First, it will result in injustice. Secondly, its proposals, if implemented, will have constitutional implications which are undesirable. Thirdly, it will damage the prison system. Fourthly, it involves profligate expenditure of public money. Fifthly, it will result in dishonest sentencing practices. Sixthly, it is unnecessary.
I can deal briefly with my views on those six points because my noble and learned friend the Lord Chief Justice has already extensively covered the subject with great eloquence. I must, however, start off with the principal concern of any judge: that is justice. With the exception of murder and matters such as disqualification which fall within a totally different category, the present situation with regard to the sentencing of serious crime is that Parliament sets a maximum sentence and the judiciary determines what is the appropriate sentence in all the circumstances. If the judiciary gets it wrong—as it can do, by imposing too heavy or too light a sentence—then a higher court can review the sentence if necessary and alter it. That is surely a just way of sentencing.
The Bill promotes injustice because it intends that a sentence should be imposed regardless of the particular circumstances of a particular crime or a particular offender. The escape clause will have limited application, and is intended to have limited application, since otherwise there would be no purpose in having the provisions contained in Clauses 1 and 2 of the Bill. The generality of offences are to be dealt with in the same way, regardless of the circumstances and the personality involved.
I listened with interest to the suggestion by the noble Lord, Lord Rodgers, as to the possible alternative of introducing instead the interests of justice. I do not believe that will meet the problem. If a judge is to be free to do what is in the interests of justice, then that is what he does at present; we shall be back to the present position, which may be the right position.
By removing the discretion of the judiciary, the Bill changes the constitutional balance in this way. If Parliament passes the Bill, the judiciary will give effect to it. However, giving effect to it involves the judiciary surrendering what has up to now been its traditional role, a role which by training and experience it is particularly equipped to perform. The Bill deals only with certain offences. However, it creates a precedent. It is a departure from our traditions. It sets a precedent which, once established, will undoubtedly be followed by further interventions in the future. It involves the legislature taking over what has hitherto always been accepted to be the proper role of the judiciary.
In this country we have no written constitution. Our liberties have been protected by a careful constitutional balance between the different arms of government. The executive, the legislature and the judiciary are usually sensitive in not trespassing upon each other's role. That sensitivity involves self-restraint. So long as there is restraint, the protection which a written constitution
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would provide is less necessary in this country than in other parts of the globe. One of the regrettable features of the Bill is the way in which the legislature is interfering with what in the past was never doubted to be a judicial function.
I turn to the prison system. Regrettably, at the present time that system is subject to immense strain. After I made the recommendations contained in my prison report, the Government of the day accepted those recommendations and embarked upon a programme to implement them. So far as I am aware, the Government have never publicly departed from that policy. There is no doubt that for a time the prison system made great steps forward, with consequent benefit to the public. Prison regimes were more constructive than they had been in the past. However, the past three years have seen that progress reversed. The prison system is now subject to the sort of stresses that brought about the Strangeways riots. The same pattern is reappearing. There was very recently a prison riot which, had it not been handled with commendable skill, could very easily have resulted in another Strangeways.
The Bill's message is that sentences should be increased. It is the increase in the prison population that is presently taking place and continuing at an alarming rate which has prime responsibility for the strains that now exist within that system. Already, over-crowding is undermining the ability of the Prison Service to do positive things within that system. It has been said by this Government that it is not the Government who send people to prison; it is the judges. In the past that could be said, although it is not entirely true. If this Bill is implemented, it will be less true.
It is not entirely true that the judges are responsible. Levels of sentencing are influenced by the rhetoric at a particular stage. In the present situation, the two major parties and the media are calling for longer and longer sentences. It is hardly surprising that in that situation sentencing has risen in a way which the Government never anticipated and which is causing embarrassment to the Prison Service in the way I identified.
I listened with great concern to the remarks of the noble Lord, Lord Tebbit, about the fact that from time to time members of the judiciary speak in public about their concerns in relation to matters of this sort. It is a matter that has concerned me; namely, the propriety of a judge speaking outside this House on matters of this sort. It may be that judges sometimes feel it essential to take part in public debate on such issues since, otherwise, the public will not have the benefit of their experience on a subject that is peculiarly their own.
It is a fact that the public are confused. As the noble Lord, Lord Tebbit, indicated, there is a lack of public confidence in what is happening in the courts. But if no explanation is given to the public other than by the judiciary as to what is possible and what steps can be taken which are practical and realistic, there are dangers that the public may be misled by the siren calls that they hear from time to time that the solution is to adopt proposals of the sort contained in the Bill. I say to the noble Lord, Lord Tebbit, that it is perhaps preferable

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that, with moderation and circumspection, senior members of the judiciary explain these matters to the public rather than their not being explained at all.
I do not believe, with the noble Lord, that it is too late for the public to understand the true situation. However, I accept that there is a heavy burden on those who have responsibility in these matters to ensure that the public are fully informed.
I wish to mention one further matter in regard to proposals in the Bill relating to minimum sentences. I have had the opportunity to be at conferences abroad where judges from different jurisdictions have been present when the advantages and disadvantages of proposals of this nature have been debated. In particular, I have had the opportunity of discussing these issues with a number of United States judges. They are astonished that we are not learning from their mistakes. They tell me that the dangers of fixed sentences can result in dishonesty in sentencing practice, and that that dishonesty can undermine the confidence of the public in the criminal justice system.
A very senior and experienced judge from New York explained to me what happens. A defendant is prepared to plead guilty to an inappropriate plea. That plea is accepted in order to avoid what would be an inappropriate mandatory sentence for the offence which was undoubtedly committed. The judge co-operates in the practice to avoid having to impose an inappropriate sentence. There are dangers because it puts immense pressure upon a defendant to plead guilty to a lesser offence so as to avoid the risks of contesting a more serious offence. There are grave dangers because the person who was the victim of the crime cannot recognise what is happening in court as what he or she experienced. I urge upon your Lordships that this is not a course which we should seek to follow. As to expense, which has been referred to, I cannot advance on what was said by previous speakers.
My Lords, I do not believe I can usefully add to what I have said.
5.20 p.m.
Lord Hutchinson of Lullington: My Lords, it is with a substantial degree of humility that one follows two devastating speeches by the noble and learned Lords the Lord Chief Justice and Lord Woolf. One wonders where we are getting to. Has it ever happened before that a Minister comes here to defend clauses in a Bill affecting the criminal law when the judge presiding over the Court of Appeal (Criminal Division) condemns those clauses as unjust, unworkable, irremediably flawed, misdirected, radically unsound and self-defeating?
The noble Lord, Lord Tebbit, speaks with confidence about the public. He says that the public want the clauses. I am sorry that he is no longer in his place, but all Home Office research shows that when the public—particularly victims—are questioned and informed, they are not punitive, as the press would have us all believe. In fact, victims repeatedly want young offenders to be rehabilitated rather than sent to rot in gaol. If only
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tabloid journalists would inform rather than inflame the public, we should have a much better reaction from them.
I wish to concentrate on Part I of the Bill and on the practical effects of those clauses and the confusion and disruption to which they will give rise in the whole criminal process. The first point, which has already been made, is that the operation of the criminal process is not in the hands of the Home Secretary but those of thousands of dedicated men and women, some professionals, some laymen and some volunteers. The system will only work if those people understand and approve the law and the philosophy which lies behind it. Yet, so far as I can see, every single agency in the criminal process condemns the clauses. It is only the police and, according to the Minister, the Labour Party, who support them.
The second point is that, as a result, changes in the system take a long time to work through and become effective. The third point is that the people who operate the law are not politicians; they do not wish to become part of the political arena.
As we know, the last great change came about in the 1991 Act, born of the 1990 White Paper. The new philosophy reflected years of research and inquiry in which many of us in this House had a hand. The Home Office research unit, the Carlisle parole review, the magisterial Woolf Report, NACRO, the Prison Reform Trust and the 30 bodies in the Penal Affairs Consortium all made major contributions, as did the academic world. There were innumerable seminars and workshops, increasingly attended by judges, police officers and academics. All that led in 1991 to a remarkable consensus, a watershed, helped along, I like to think, by some well-informed debates in this House in which we had valuable exchanges with a number of Ministers who were both emollient and flexible. One of them, the noble Lord, Lord Belstead, will speak in this debate.
Perhaps I may quote the one passage from the 1990 White Paper, Crime, Justice and Protecting the Public, which encapsulates the consensus which was achieved. Paragraph 2.16 of the White Paper stated:
"It is not the Government's intention that Parliament should bind the courts with strict legislative guidelines".
Now it will do so.
"The courts have shown great skill in the way they sentence exceptional cases".
Now that is no longer believed.
"The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them".
Now that is no longer to be so.
"The Government rejects a rigid statutory framework, on the lines of those introduced in the United States"—
that is precisely what the Government now propose—
"or a system of minimum or mandatory sentences for certain offences".
After five years the Government now propose what they then condemned.
"This would make it more difficult to sentence justly in exceptional cases".

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In five years, that is no longer true.
"It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
Every point in that passage from the White Paper is now reversed. One cannot operate a criminal system on that kind of approach. That is what was said then. The White Paper also stated that the Government called upon the Judicial Studies Board to carry out the policy which was laid down.
As we know and have heard, the principle was that offenders should serve 50 per cent. of their time in prison and 50 per cent. in the community or as recommended by the Parole Board. They should not be let out on the streets absolutely free, as the noble Lord, Lord Tebbit, said, but let out subject to strict conditions and supervision, with sanctions of return to prison and an added sentence should they offend again. That is now called dishonesty in sentencing and a charade. Yet if it was explained by the judge on sentencing, it was effectively designed to help victims and the public by reducing—as it has—the rate of reconviction.
Let me remind the noble and learned Lord, Lord Woolf, although in his presence, of what he said in his report. He quoted the Director General of Prisons:
"The life and work of the service for the last 20 years [in the prisons] has been distorted by overcrowding. That single factor has dominated prisoners' lives and soured industrial relations".
Later, he said:
"The canker of overcrowding must be rooted out."
As a result of these policies the prison population fell to 43, 000. As Sir Peter Lloyd, Home Office Minister at the time, made clear in the other place, crime began to fall in 1992, before the increase in prison numbers and the Howard reforms. Just as the new policies were beginning to bed down, the Home Secretary has decided to dismantle them all. As we heard, there are already 58, 000 prisoners now in prison. The canker referred to is not being rooted out but in fact fed. The estimated huge expenditure of £1.2 billion on 12 new prisons—the last one, just finished, cost £92 million—is in order to create an American-type "warehouse" for offenders.
Judges must now reverse their policies. They must hand down sentences which they consider unjust and cease to operate judicial discretion. The only example that the Minister gave of a mandatory sentence was disqualification for a driving offence. With great respect to her, that is no parallel at all. If one is given a licence to do something—say, a licence to drive a car—and one breaks the terms of the licence, obviously part of the penalty is to remove the licence. That is completely and totally different. It has no parallel with removing judicial discretion to impose a proper penalty across the board.
What is to happen to the Judicial Studies Board which was to teach sentencers to follow the new policies five years ago? Is it to start teaching something completely different from its teaching for the past five years? It puts the board in a completely impossible position.
I wonder whether the Minister understands the realities of what goes on in the criminal courts. There has been some reference to that but perhaps, as an old practitioner, I may make some points to her. All those
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with long experience of sentencing know that serious offences vary infinitely. There is the brutal and dreadful rape. Yet, far more often, there is the difficult and delicate case. Did the young woman consent or did she, at the last moment, change her mind? Did the man genuinely believe that she had not done so? Were they both the worse for drink? Did she make the allegation out of remorse or as a result of pressure afterwards? A man with a conviction for any offence under these clauses will be wide open to blackmail for ever afterwards.
As we have heard, burglaries can consist of stealing a milk bottle or a radio from a garaged car. Manslaughter can involve quite a light blow after a closing-time row or a fall on one's head on a hard surface. And, of course, there are cases of diminished responsibility. Surely the Minister knows only too well—indeed the House has already heard—about young people kicked out of miserable homes, who drift into city centres and are corrupted in a drugs environment.
An analysis found that in 35 per cent. of the cases which have come before the courts and which fall into the category that now carries a life sentence the judges took the view that there should not even be a sentence of imprisonment. Is it seriously suggested that those 207 cases in which it was considered by trained judges that a life sentence should not be imposed—35 per cent. of them not even attracting imprisonment—are now to attract life sentences? I suggest that that is grotesque.
The noble Lord, Lord Tebbit, asked why the maximum sentence is not imposed. The maximum sentence is not imposed because justice does not demand the maximum sentence to be imposed by people who have sat in court and heard hundreds of thousands of cases and who can make up their minds, I should have thought, more seriously and with recourse to more experience than a Home Secretary who has never been inside a criminal court.
Mr. Douglas Hurd, the architect of the 1991 Act, pointed out in the other place what still cannot be hoisted in by the Government: for however long offenders are incarcerated, 99 per cent. of them will be released onto the streets in the end—the ever revolving door, more people in and more people out. The only question for the public is how many of those people who come out will go straight and how many will continue to offend. As we heard from the noble and learned Lord the Lord Chief Justice, incapacitation, as it is called, has but a very small long-term effect.
Lastly, of those who object to these clauses, perhaps not the least significant is the organisation, which I am sure will be known to the Minister, called WAR: Women Against Rape. What does Women Against Rape have to say about the clauses? It says that under them, women and children will have less protection from rape than hitherto. It is a curious combination when Women Against Rape and the Lord Chief Justice say exactly the same thing about these clauses.
The Home Secretary has made many mistakes. As we know, he has acted unlawfully on no less than 14 occasions. But surely the most unforgivable thing

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that he has done is to play up for populist political purposes his differences with the judges. That surely is unforgivable in the holder of such a great office. It has done and continues to do grievous harm to the delicate balance in our constitution between the judiciary and the executive, to which the noble and learned Lord, Lord Woolf, referred. The judges have been put in an impossibly difficult position, a position where, inevitably, because of the Home Secretary's attitude, they appear to get involved politically. The noble Lord, Lord Tebbit, fell for that appearance. The removal of the judges' discretion to do what they constitutionally have a duty to do is, I suggest, wholly wrong and should have no place in the Bill.
5.40 p.m.
Baroness Young: My Lords, unlike previous speakers I should like to begin by thanking my noble friend the Minister for introducing this Bill this afternoon and, if I may say so, for explaining it so clearly. Perhaps I may underline the point that she made; namely, that it is a Bill that received overwhelming support from another place. Like my noble friend Lord Tebbit, I listened with great interest to the speech of the noble Lord, Lord McIntosh, and understand the Opposition will not vote against it. There may be disagreements on the detail of the Bill, but I understand the Opposition support the main principles.
It is unusual for me to enter into what might be described as a "law and order" debate. I am not a lawyer, nor have I ever been a magistrate—though I have twice been asked to be one and would have liked to do so. There is a great deal of concern today about the breakdown of law and order, and I venture to speak as a member of the public. I was surprised to hear the statistics given by the noble Lord, Lord Rodgers, about the numbers of people who are concerned about the breakdown of law and order. That is not my experience, though I admit that I have not read the Home Office report to which he referred. A great many women are afraid to go out at night and a great many people—no doubt some Members of your Lordships' House—hesitate to take the underground or travel by train after a certain time of night. That is not because they have been raped or violently attacked, but because there is a genuine anxiety and that anxiety needs to be recognised.
I did not hear in the speeches any mention of the anxiety of parents in relation to drug taking. Drug taking is a modern evil and there are few schools which have not experienced it one way or another. I can say confidently that there is not a parent in the land who is not worried, not only about the pusher at the school gates or somebody who picks something up at a party, but that behind those people stand extremely evil people doing a lot of damage. That is something we need to recognise.
I listened carefully to the speeches that have been made. When one is a professional dealing with such matters it is easy to say that all that is being proposed is wrong. But I hope that those who are dealing with the Bill realise that those on the other side of the argument have an equally important case to make; they are
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concerned. We have not been as successful with policies concerning law and order as we would have liked. There is a feeling, rightly or wrongly, that the law, however defined, appears so often to favour the criminal rather than the victim; that the victim's real anxieties are not understood.
In saying all that, I do not believe that the man on the Clapham omnibus ought to be deciding penal policy; that would be an absurd proposition. But there needs to be a balance in all this. I was interested that the noble Lord, Lord McIntosh, quoted from the speech of my right honourable friend Mr. Hurd in the Second Reading debate in another place in which he said that the British system of justice is in the hands of a variety of people. What he did not add was the statement at the end of the paragraph when my right honourable friend went on to say,
"Criminal justice measures will not work unless those people work them. That means that they must be listened to—I emphasise that—although their voice is not decisive. In the end. Parliament must decide".—[Official Report, Commons, 4/11/96; col. 934.]
That is exactly what we are doing in this measure today.
I said at the start that I was not a lawyer. Throughout my life I have been involved in the subject of education. We saw a situation in which employers and parents thought one thing and the educational establishment thought another. In fact, the law, as it were, had got out of kilter with what a lot of people believed should be happening. We found that educational policy, supported by teachers, university departments of education, education advisers, professors and so forth, all went one way. In the end, Parliament intervened and laid down a number of principles such as the national curriculum and testing assessment because Parliament has a duty to determine between opposing views. At the end of the day, the educational establishment was overruled by Parliament. That was upsetting to the experts because their professional judgment was being called into question; many people felt that the policies did not work. There is now general agreement on the matter and educational standards will rise as a result.
In a way, we are in the same kind of position in relation to law and order. I do not believe for one moment that passing this Bill will automatically put right all the problems of law and order. That is not a sound proposition. It is a step in the right direction, but I would be the first to say that we need other measures as well.
What does the Bill do? It respects the reasonable desire on the part of the public for further protection against the criminal. No one has suggested other alternatives, except ones which have nothing to do directly with the criminal justice system. The Bill introduces mandatory sentences for certain serious offences. I hope that when my noble friend replies she will spell out what those serious offences are.
As I understand it, the Bill says that there will be automatic life sentences for second-time—that is the important point—serious violent and sexual offenders. The noble Lord, Lord Hutchinson of Lullington, said that women felt that they were more likely to suffer from rape under those provisions than otherwise. I do not follow that argument. It seems to me that a second

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serious offence must be committed before the automatic life sentence comes into operation. If I am wrong about that, perhaps my noble friend will correct me.
The second issue in the Bill is that there will be stiffer minimum sentences for persistent house burglars who have committed serious offences. I find it difficult to believe that that includes stealing a milk bottle. It would make a mockery of the whole situation if that were the case. As I read it, we are talking about much more serious matters; for instance, in relation to drug dealing, we are talking about hard drugs. Those are the people we wish to be caught by the provisions. It has been said that one Ecstasy tablet is not all that dangerous; but I believe it was one Ecstasy tablet that killed a girl not so long ago. All those matters are extremely serious and dangerous and we have a duty to deal with them as best we can.
I understand that on a third conviction hard drug dealers can be sentenced to four years' imprisonment, but that can be automatically reduced to only two-and-a-half years. As my noble friend Lord Tebbit pointed out, it is situations like that which members of the public find inexplicable. I hope that we will have a greater understanding at the end of the debate.
We were asked what prison does. I can tell the House what it does: it keeps criminals off the street. That is the first thing that the average member of the public wishes to know. While someone is in prison they cannot be committing crimes outside. That is the first reassurance for members of the public. There is some evidence that it acts as a deterrent. Though the prison population is up by 25 per cent., the amount of recorded crime is down by 10 per cent.
The Bill needs to be supported as part of a package of stronger law and order measures. However, I do not believe that it is the whole story or that it will solve all the problems. I support all those who say that prisoners should be educated. Many are illiterate. They should certainly be taught to read and write and it would be even better if they could be given some prospect of getting a job when they come out. However, as many noble Lords have pointed out, the trouble starts long before anyone gets to prison. The trouble starts when children, particularly boys—they seem most likely to commit crime—are quite young. I was very impressed by what the right reverend Prelate the Bishop of Oxford said on that point.
I have been a consistent supporter in your Lordships' House of proposals to support marriage, the family and sound principles in education so that children are taught right from wrong. One of the tragedies today is that stealing is endemic in the schools. It is endemic in a large part of society in a way that certainly was not the case when I was at school. There is no time to go into the reasons for that but we are in a very different world.
We need to do all these other things because supporting marriage means that we have homes in which there are fathers so that boys have a role model to follow and can learn about responsibility. Supporting high moral principles in schools will enable children to determine right from wrong. We are not able to introduce all these things immediately. This is one step
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of reassurance to the public which deserves our support. I am very glad to support the Bill before us. I wish it a speedy passage through Parliament.
5.51 p.m.
Lord Mishcon: My Lords, I hope to adopt a course which will commend itself to your Lordships. We were all privileged to hear two outstanding speeches—from the Lord Chief Justice and the Master of the Rolls. They were devastating speeches in regard to Part I of the Bill. I had prepared most excellently a speech which also was directed against Part I of the Bill. The speeches to which I referred more than covered, and did so much more ably, the points that I was going to make. I therefore do not propose to weary your Lordships with my speech.
5.52 p.m.
Lord Carlisle of Bucklow: My Lords, I am conscious also of the fact that this is the third occasion on which this House has discussed the principles of the Bill; first, in the debate introduced by the noble and learned Lord, Lord Taylor; secondly, in the debate on the Queen's Speech; and again in the debate today. Like the noble Lord, Lord Mishcon, I assure the House that I do not propose to repeat the speeches I made on those two previous occasions. However, while 1 realise that, as far as my noble friend the Minister is concerned, my opposition to and concern about the Bill are well known, I am bound to say, having listened to and followed the debates in another place and having heard her very persuasive speech this afternoon, that I nevertheless remain of the view that this is for many, many reasons a thoroughly undesirable measure.
I think that the Bill is quite unjustified. No attempt has been made to justify the major changes it proposes. I think that it is largely unnecessary. I think that it is ill thought through. I think that the proposals for mandatory minimum sentences are in principle wrong. I believe they blur the vital distinction between the roles of Parliament and the judiciary. I believe they will lead to injustice in individual cases. I believe that they will lead to tension between prisoners within prisons and lead to a very substantial increase in the prison population without achieving the protection of the public that the Bill aims to achieve.
I really do believe that sentencing should not be a matter for party political debate. Surely sentencing should be based on principles which command support across the political spectrum and, above all, retain the approval of the judiciary who are required to implement them. I sit as a recorder and when I do so I hope I sit as a lawyer rather than as a party politician. I believe that the fundamental flaw in the Bill is that its proposals were originally announced in a party political forum without any prior consultation and without any thought as to their effect. I believe that the Bill has been pressed ahead with against considered and informed objections by the judiciary. I believe it is a Bill that we should regret.
Like the noble Lord, Lord Mishcon—I have now spoken for three minutes as the noble Lord spoke for under one—I shall not repeat, or attempt to repeat, the

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points made so admirably by the Lord Chief Justice in his speech today. However, as the author of the review to which he referred, I remind the House of the circumstances in which that review was set up. The review of the parole system was set up because we were then in a situation where anyone who had served a sentence of more than six months was eligible to be released, at the say either of the Parole Board or, more likely, the local review committee in the prison, at any time once he had served a third of his sentence. The effect was that, particularly at the lower end of sentences, although the courts were passing sentences of different lengths, people were coming out on the same day. As the Lord Chief Justice pointed out, the proposals we brought forward were aimed at restoring proportionality and restoring meaning to the whole of the sentence and were intended to be simple to understand; namely, that anyone sentenced should serve the first half of that sentence in prison; he should then be released and be on parole for the next quarter; and throughout the time be at risk of being recalled if he committed a further offence.
I have seen no argument put forward to suggest that those proposals, introduced as recently as 1992, have failed in any way. The only attempts at criticism in the White Paper are ones that I find extraordinary. It is said that they are complicated and are often misunderstood. I say to my noble friend Lord Tebbit that in our report we recommend that in passing sentence the court should explain to the public what in fact that sentence meant. Perhaps it is unfortunate that the proposal was not taken up.
What is to be put in its place? A system is to be put in its place whereby the court is to ask itself, "What is the sentence that we would have passed had this Bill not been passed?" Having found that, then it is to say, "We shall therefore pass a sentence which is two-thirds of the sentence that we would have passed to try to equate the period spent in prison with that which is spent now". Perhaps I may give one example to follow on what the noble and learned Lord the Lord Chief Justice said. Today a court passes a sentence of two years. That means that the person spends the first year in prison. If he behaves himself he comes out at that stage. He is on parole for six months and for a further 12 months he is at risk of being recalled to serve that sentence if he commits another offence.
What is proposed under the Bill? For the same offence, rather than being sentenced to two years, the man will be sentenced to one year and four months. What period is he going to serve in prison? Apparently, he will serve one year, one month and 12 days. Thereafter he will be on parole for four months. I ask my noble friend the Minister quite simply this question: what is simpler, less confusing and more effective about what this Bill proposes than the position at the moment? I do not believe that the Bill meets any of those tests.
I am concerned about the effect on the prison population. The White Paper says that the proposals in the Bill should increase the prison population by some 10, 500. As my noble friend will realise, it specifically says that the proposals on honesty in sentencing should
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have no effect at all on the prison population. Yet it is now conceded that those proposals alone will increase the length of the average sentence by 11 per cent. I estimate that that will mean between 2, 000 and 4, 000 more prisoners a day in prison, but without the 10, 000 referred to in the paragraph on resources. What consideration has been given by the Home Office to that effect?
Finally, like the Lord Chief Justice, I really question whether in the present climate it is possible to achieve the two-thirds reduction in sentences which the Bill aims to achieve. We looked at this in the report and decided that in reality it would not be achievable. Therefore, to the extent that it is not achievable, all it means is that the prison population increases as people spend longer in prison at vast expense in terms of resources and costs which, as the Lord Chief Justice said, could be better spent on other purposes.
I turn very quickly to the mandatory proposals and I shall try to answer the points made by my noble friends Lady Young and Lord Tebbit. The noble Lord, Lord Tebbit, said that surely we were not talking about the type of drug offence which the Lord Chief Justice mentioned in relation to seven years for drug trafficking. The fact is that I do not believe there is a single person in this House who would not support the most condign punishment for those who are serious traffickers in drugs. But the courts already hand out those kinds of punishment. I sit in the Court of Appeal for the Channel Islands. There we start with a sentence of nine years for the first offence of commercially trafficking in drugs. No one is worried about the commercial trafficker getting more than seven years imprisonment, whether it is for the first, second or third offence.
The only type of person whom these provisions will catch is the pathetic, inadequate drug addict who shares a bit of what he has achieved to pay to feed his addiction. That is the reality for those whom this Bill will affect. Equally, I say to my noble friend Lady Young as regards burglary that of course serious professional burglars should receive sentences of at least three years, if not considerably longer. But under this Bill a boy of 16 years of age who commits two separate domestic burglaries may have gone along with a gang of his own age. He then goes straight for 14 years, gets married, settles down, has a job and a family. Then, being out of work and out of luck he sees, in passing, an open door or window at midday and—as has been said—takes a bottle of milk from the table. I point out to my noble friend Lady Young that he will be caught by these provisions. Those are the people for whom I am concerned.
The trouble with mandatory sentences is that they cannot allow for the enormous difference in variety in the type of offender and offences. Therefore, I believe that that will cause injustice in the cases which come before the courts. I believe that that equally applies to mandatory life sentences where one is to a large extent moving the decision as regards the time spent in prison from the judiciary, given in open court, with a right of appeal, to a parole board who will assess it at a hearing, but in private and without the right of appeal to the Court of Appeal.

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In all those respects the Bill goes in the wrong direction. Following the excellent example of the noble Lord, Lord Mishcon, whom I have followed before in one of these debates, I apologise if I have failed in any way to equate with his brevity of speech. But I hope that when it comes to Committee stage we shall consider seriously amendments to the Bill.
6.7 p.m.
Lord Ackner: My Lords, in the debate on the Loyal Address on 24th October, I contrasted the Home Office White Paper of 1996 entitled Protecting the Public, on which a substantial part of this Bill is based, with the 1990 White Paper of the Home Office, entitled Crime, Justice and Protecting the Public, whose proposals, principles and policies were embodied in the Criminal Justice Act 1991. The purpose of that operation was to test the credibility of the Home Secretary. Was he merely appealing to the gallery; playing politics with the administration of justice and taunting the Opposition that he is tougher on crime than it is, or was he sincerely concerned that the public are inadequately protected from criminals by the judiciary and his radical proposals to increase both the level and frequency of imprisonment were designed to improve the situation?
Your Lordships may remember the coup de grâce, which was to be found in paragraph 2.16 of the 1990 White Paper. Your Lordships will note in particular the references to "justice". It states:
"It is not the Government's intention that Parliament should bind the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework, on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
I suggested to your Lordships that the Home Secretary, by suppressing any reference to these carefully considered, clearly expressed, government views, by failing to disclose any reasons for now thinking that his contradictory proposals would not result in more acquittals, with more guilty men and women going free, and by not coming forward with any new material to justify the Government's change of heart, gave rise to the clear inference that Mr. Howard was playing electoral politics with the administration of justice.
But there are even more cogent reasons for arriving at that dismal conclusion. I start by dealing with two soundbites. I refer first to the Home Secretary's demand for "honesty in sentencing". My first comment relates to the proposal for automatic life sentences. Save for a tiny minority, those subject to such sentences are not intended to stay in prison for the rest of their lives. Life does not mean life. Moreover, the Home Secretary has accepted in another place that there is no minimum to the tariff that a judge may impose. If the circumstances are teeming with mitigation, the tariff can be a matter of months.
The second matter is this: the proposals with regard to mandatory life sentences are designed to deal with a particular problem,
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"of a small number of men serving determinate sentences of imprisonment who have to be released when their sentences expire, although they are thought to be dangerous."
I ask rhetorically: where does that quotation come from? The answer is perhaps surprising. It does not come from the 1996 White Paper, but from the report of a committee presided over by Lord Butler, the then Home Secretary, on Mentally Abnormal Offenders, presented to Parliament over 20 years ago in October 1975. What was proposed by that committee was a "reviewable sentence"—a new form of indeterminate sentence which would be subject to statutory review at regular (two-yearly) intervals, release being dependent entirely on the issue of dangerousness. On release, the offender would be under compulsory supervision, again subject to statutory review. That proposal was dealt with in great detail in the report which has been gathering dust on Home Office shelves for a couple of decades. Why, in the interests of honesty in sentencing, has it not been implemented? There are respectable precedents. It has been substantially followed in Canada and Australia.
Furthermore, it has two additional advantages over what is proposed now. First, it is not restricted to repeat offenders, as is the present proposal, but can apply to the first-time violent offender. Secondly, it does not carry with it the potential risk (referred to by judges and politicians) that the criminal might well decide to do away with his victim in order not to have to face the possibility of a life sentence. Could it be that the Home Secretary considers that the provision for reviewable sentences does not sound nearly as macho, as tough on crime as the false label of "life imprisonment"?
The second soundbite which was articulated to the delight of the party faithful at the 1990 conference is:
"no more half time sentences for full time crimes".
What does that mean? It sounds pretty simple and straightforward. Let me take an example of a burglar who is currently sentenced to four years' imprisonment. Subject to good behaviour, he will earn remission of two years off his sentence, hence the reference to
"half time sentences for full time crimes".
There are to be no more such cases. The clear inference is that the burglar will serve four years, a full time sentence for a full time crime. However, that is not to be the case. There is to be as little difference as mathematics can arrange between what happens now with regard to the period of actual imprisonment and what is to happen in the future.
As for greater transparency in sentencing, there is going to be a dog's breakfast over what is to happen in regard to the same type of offence being committed by prisoner No. 1 before the Act comes into force compared with prisoner No. 2 after the Act comes into force. Heaven help us if a prisoner has committed two offences—one before and one after the Act comes into force.
All that is by way of hors d'oeuvre. I come now to the pièce de réesistance. At the outset of his speech on the Second Reading on 4th November in another place the Home Secretary stressed that the key provisions of the Bill were,

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"designed to improve the protection of the public against serious, dangerous and persistent offenders, and to increase public confidence in the sentencing process".—[Official Report, Commons, 4/11/96; col. 911.]
I propose to give one or two clear examples to show that it will have precisely the reverse effect. I turn first to the mandatory life sentence. According to the 1990 White Paper, which I have quoted, the system of minimum or mandatory sentences for certain offences,
"would make it more difficult to sentence justly".
Your Lordships may think that the imposition of an unjust sentence is hardly calculated to increase public confidence in the sentencing process.
Secondly, the 1990 White Paper also states that the system of minimum or mandatory sentences for certain offences,
"could also result in more acquittals by jurys with more guilty men and women going free unjustly as a result".
That is undoubtedly the case since there will be occasions where if the jury are aware, as they could well be, that the defendant faces a mandatory life sentence if convicted, they will for that reason not convict. Moreover, there will be refusals by defendants to enter, as they should, pleas of guilty. In some such cases, because of the heavy onus of proof, there will be acquittals. In addition there will be cases where witnesses, particularly those in a close relationship with the defendant and who know the consequences of a conviction, will refuse to give evidence or prove to be unreliable witnesses. Moreover, there could be cases, as has been pointed out by the senior judiciary and politicians, of victims being killed in order to avoid the risk of detection and subsequent life imprisonment.
Finally, in order to be sure of obtaining a conviction there will be cases where the prosecution will find themselves obliged to accept an unrealistic plea bargain, as is well known to be the case in America. None of that sounds as if greater protection is being given to the public; on the contrary, it sounds as if protection is being removed.
I come now to the abolition of parole. Because of the definition of "relevant offence" and the necessity for its repetition, the proposed automatic life sentence will miss many potentially dangerous offenders. It is in regard to them that the public is currently being provided with a significant protection by virtue of the parole system, which is to be abolished. Under that system, the risk of a repetition of offences is assessed by a panel of experts before parole is granted and, when granted, it is subject to a tight set of conditions with close supervision and a streamline provision for recall where the behaviour suggests the risk of reoffending. The purpose of the system is both to protect the public in the short term while the defendant is on licence and, in the long term, to reduce the risk of his reoffending and returning to prison.
Finally, I refer to prison overcrowding. The changes are bound to lead to greater prison overcrowding. This, coupled with drastic cuts in the prison budget, will reduce the prison service's ability to provide regimes designed to change attitudes to crime and offending
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behaviour. That will increase the risk of reoffending on release, and increase the number of potential victims. To quote Mr. Tilt, the Director General of the Prison Service, in a major speech last September:
"The prison service would like to do constructive things but this is jeopardised by a very fast rising population … and budget reductions that do not seem to be sensibly achievable".
In my very respectful submission, the Home Secretary is putting forward these proposals in a manner which shows a degree of irresponsibility that I would not expect to go with that office. There is a growing belief that he is exploiting for party political gain the misapprehension of the public that judges are too soft on crime, which I accept is a commonly held view. If one goes back to the less harsh climate of 1992—since when the prison population has gone up by 50 per cent.—one finds the most recent comparison of various Council of Europe countries supplied by NACRO. This shows that in 1992 the United Kingdom had the highest actual prison population of the countries surveyed and the highest proportionate detention rate. I am indebted to my noble and learned friend Lord Taylor of Gosforth (who I am delighted to see is in his place) for the following material which featured in a speech that he delivered when Lord Chief Justice to the Commonwealth Judges and Magistrates Association Symposium at the University of Hertfordshire on 15th April 1996. He quoted the Daily Mail which had stated the previous week:
"The Judge has become like a glorified social worker … who sees law-breaking as the criminal's cry for help. He seems blindly unaware of the popular groundswell in favour of harsher penalties".
I do not know who wrote it, but there are a number of candidates.
That that is an illusion is supported by a recent study conducted under the auspices of the Nuffield Foundation. Among other things, it found that half the public thought that 50 per cent. or fewer convicted rapists were sent to prison. The correct figure was 91 per cent. Half thought that 20 per cent. or fewer convicted burglars were sent to prison. The correct figure was 41 per cent. Half thought that 20 per cent. or fewer convicted muggers were sent to prison. The correct figure was 50 per cent. Contrast that with the reality disclosed by an academic, Joanna Shapland. Recently she conducted a survey of victims of violent crime whose attackers had been convicted in the Crown Court. The survey showed that more than half of them thought that the sentence was "about right" or "too harsh". Even more remarkably, a survey of burglary victims found that 80 per cent. wanted imprisonment for burglary in the abstract but only 32 per cent. wanted it for "their" burglar.
A few weeks prior to the speech of the noble and learned Lord, Lord Taylor of Gosforth, the London Evening Standard sent a team of journalists into Crown Courts in London and the surrounding area to sit in court, listen to real cases and report what happened. The editorial summed up the exercise as follows:
"The broad picture is of Judges whose sentences are fair, firm and fit the crime".
In the debate initiated in May by the noble and learned Lord, Lord Taylor, calling attention to the Government's White Paper of 1996, my noble and

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learned friend Lord Nolan drew attention to a recent study carried out by Professor Michael Zander in his capacity as a member of the Royal Commission chaired by the noble Viscount, Lord Runciman. Professor Zander sent out a questionnaire to members of over 800 juries—that is to say, getting on for 10, 000 people—and asked for their views about the various aspects of the crimes in which they had taken part as jurors. As regards the sentences passed in cases in which the defendant had been found guilty, about one-third had no particular views. Of the remaining two-thirds, one-half said that the sentence was just about what they would have expected. A quarter said that it was rather more severe than they would have expected. Only a quarter—that is to say, one-sixth—said it was rather less severe than they would have expected.
As the noble and learned Lord, Lord Nolan, pointed out, the Court of Appeal can increase sentences that are excessively lenient. Indeed, the Attorney-General has a duty to bring such cases to its attention. But the Court of Appeal spends far more time having to reduce sentences when judges have been too severe. But these are only a tiny minority—some 2 per cent.—of all sentences passed. The vast majority of sentences are not appealed against or questioned at all. All this the Home Secretary must know but, as was recently stated in a national newspaper, he has "an unerring populist streak" which sadly the Opposition seem now to wish to emulate. O temporal O mores!
6.26 p.m.
Lord Blake: My Lords, I rise with some hesitation having heard such a distinguished series of speeches from noble and learned Lords. I shall probably be a little briefer. I make only one point; other noble Lords will deal with the detail. It has been stated that the constitution is in some way imperilled by this legislation. It seems to me that there is no question of the separation of powers being damaged or anything of that kind. There is really no separation of powers to damage anyway. Setting that aside, I do not believe that the constitution is in peril. I believe that the legislature is perfectly entitled to legislate about sentencing.
Of course, the legislature may legislate foolishly. That is another matter. But as far as concerns the constitution it has the right to pass the appropriate legislation limiting or altering the nature of sentencing if it sees fit to do so. I do not believe that any point of constitutional propriety arises here. Perhaps that is not a major point but it has some importance in the present context. I have been very brief indeed.
6.27 p.m.
The Earl of Longford: My Lords, it is a special pleasure to follow the noble Lord, Lord Blake. He followed me much more than adequately as politics tutor at Christ Church. I shall try to emulate him today. I shall be fairly brief but not quite as brief as the noble Lord.
The noble Lord, Lord Rodgers, described this as a bad Bill. I go a little further. In my eyes, it is the worst Bill that has ever come before this House in my 50 years as a Member of it. It is certainly the worst Bill on penal
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measures since I introduced the first debate on prisons in this House 40 years ago. As I am to be followed by the chairman of the Parole Board, I believe that this is the worst Bill since a Labour Party committee, which I chaired, produced parole plans that became law during the Wilson Government; in other words, it is a very bad Bill.
If the House asks me why I believe that it is so bad, the first reason is the great increase in the prison population. Three years ago the prison population was somewhat over 40, 000; today it is approaching 60, 000 and going up fast. We will soon be beyond that figure.
The Government say that the Bill will send up the numbers by 10, 500. The Prison Reform Trust, of which, I am glad to say, Mr. Douglas Hurd has become chairman, tells me that it thinks that the measure may send up the numbers by 30, 000. Let us split the difference and say 20, 000. So if the Bill is approved, within a few years the prison population will go up from something over 40, 000 to somewhere near 80, 000. It will have about doubled within a few years. That is pretty astonishing.
We must bear in mind that present plans are to reduce the prison staff. I was in two prisons last week. In one case the staff were under the impression that their numbers were to be cut by about 40 per cent. I think that that was an exaggeration. I think that there will be a reduction in that prison of about 100. There will be fewer staff and a doubling of the prison population. That makes it out of the question to pursue any constructive policy of what is now called rehabilitation. I prefer the old word "reform".
I am not saying that rehabilitation, reform, or whatever we like to call it, is the only object of imprisonment. Prison is, first, a punishment. It is imposed on people who have committed a crime; who have broken the law. I wrote a small book called Punishment 35 years ago. When one considers punishment one can identify four elements: deterrence, prevention or incapacitation—to use the modern term which means locking people up so that they cannot do any harm for as long as they are there—retribution, and reform or rehabilitation. I have never found anyone who was concerned seriously with these matters, or anyone who has given their lives to studying them, who would rule out rehabilitation.
Rehabilitation cannot be ruled out altogether. We have devoted staff struggling away. Howardism is despised throughout the Prison Service but one way or another staff have to carry out orders. I always say to them, "I know it is not your fault. Yours not to reason why." They have to go on doing their job. With the prison population being doubled and staff numbers going down, the Government are doing everything they humanly can to make rehabilitation impossible. For that reason this is an atrocious Bill.
Let me offer one further thought which is in many people's minds in this House and elsewhere. In May last year, the former Lord Chief Justice, who I am glad is restored to health, led an onslaught against Howardism. He was backed up, among others, by five former Home Office Ministers, including a former Home Secretary.

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Recently, in the other place, Mr. Hurd, Mr. Kenneth Baker, another former Home Secretary, and Sir Peter Lloyd, a former Minister of State at the Home Office, all criticised the Bill. On the one side, we have all those concerned with prisons at various levels: the judiciary, as we have seen today, prison governors, prison staff, successive inspectors-general, the Probation Service and the criminologists. On the other, what is there? Just popular emotion, exploited savagely by the tabloid press. One is left with a choice. It is as clear as can be that this is an evil Bill; I hope that it will never reach the statute book.
6.34 p.m.
Lord Belstead: My Lords, I thank my noble friend the Minister for her clear explanation of the proposals contained in this enormously wide-ranging Bill. It is a Bill which, as the Long Title makes clear, provides also for the treatment of offenders in a wide variety of different situations. It is a pleasure to follow the noble Earl, Lord Longford. He has a wealth of first-hand experience in this field and I hope that he will take an active part in what may be an interesting Committee stage.
It is also a Bill which, as the White Paper which preceded it says, has "protection of the public" as its primary objective. I recognise that the right honourable gentleman the Home Secretary is consistent in pursuing that aim and in making proposals in the Bill which seek to give protection against serious and violent crimes.
However, what I find of particular concern is that the Bill appears to have lost sight of "protection of the public" in aiming also for what the White Paper described as "honesty in sentencing". Here I must declare an interest as chairman of the Parole Board, but I assure noble Lords that my concern stems not from a desire in some way to maintain the status quo—that, incidentally, would be foolish as there are interesting additional and new responsibilities to be laid on the Parole Board by the Bill, as well as other things—but from a belief that it is necessary to warn that the risk to the public will be increased by the clauses in Part II which, in pursuing "honesty in sentencing", introduce a new remission scheme for the early release of prisoners. That was one of the four grounds upon which the noble and learned Lord the Lord Chief Justice based his devastating criticism of the Bill when he was speaking about the early release proposals.
Clause 10 provides for a new scheme of early release based on days of remission awarded on grounds of good behaviour. The reason for that appears to rest on the argument that "honesty in sentencing" requires, as the right honourable gentleman the Home Secretary stated on Second Reading in another place, that the prison sentence that is passed by the court is the sentence that will actually be served by the offender.
Is that achieved by Part II of the Bill? No, it is not. Prisoners awarded early release days under Clause 10 will be released early. I shall take the same example of a six year sentence given by the Minister in a letter she kindly wrote to me on 20th January, a copy of which
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has been placed in the Library: a six year sentence today will need to be reduced to four years under the terms of Clause 22, and then, with the possibility of 12 days' remission every two months, something under only three-and-a-half years is all that will be left to serve for those who obtain maximum remission.
I say that, not I hope in a snide way, but in order to add my voice to that of those speakers much better qualified than I who have said that honesty in sentencing is a difficult target to hit, particularly in terms of a Bill which deals also with early release. It is a target which the Bill does not succeed in hitting.
Having said that, my main cause for concern in Clause 10 is that the grounds upon which early release is given are to be altered. At the moment that is done by risk assessment—an assessment of the risk which a prisoner would present if released early under supervision. I assure my noble friend the Minister that the assessments of risk must of course take account of a prisoner's behaviour in prison.
Under Clause 10, that is to be replaced by remission solely for good behaviour. I must say that I should have thought that an alarm bell should have started to ring in the Prison Service at the prospect of the reintroduction of remission, which was brought to an end only four years ago, following the recommendations of a committee under my noble friend Lord Carlisle of Bucklow, which looked with great care at the early release system. Indeed, looked at from almost any viewpoint, the new remission scheme gives cause for concern, because it appears that it will not contribute to the safety of the public; for example, it takes little imagination to realise that good behaviour, or behaviour of the prescribed minimum standard, as Clause 10 rather inelegantly describes it, is not a reliable basis for the early release of prisoners. There are many offenders, as many noble Lords will know better than I, who have no difficulty in conforming to a prison regime, but who do not experience any change of heart or of criminal intent, and however good their behaviour, those prisoners remain dangerous to the public.
In my noble friend's letter, which I mentioned, she suggested that risk assessments will in future be carried out as part of the sentence planning process in prisons. I recognise that in saying that she is seeking to be helpful, but sentence planning is not risk assessment. And, anyway, the provisions of Clause 10 are crystal clear; in future, early release is to be awarded not on an assessment of risk but according to the prisoner's behaviour in prison.
By contrast, the parole system is a team effort. As noble Lords will know very well, it involves reports from prison officers, specialist prison staff, the probation service and often the medical profession. Those reports are read by panels of the Parole Board to give an independent risk assessment. It is fair to claim that over the past quarter of a century the parole system has proved itself. Home Office research shows that taken from 1968, the year in which the system started, prisoners on parole up to the first six months after release have a reconviction rate of under 10 per cent. compared with 30 per cent. for non-parolees. Two years

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after release, when supervision periods have almost always run out for most prisoners, the story remains much the same, with parolees' reconvictions running at about 35 per cent. compared with 55 to 60 per cent. for non-parolees. In saying that, I realise that a single prisoner who reoffends is one too many, but that major difference in reoffending rates represents a significant protection which parole can afford to the general public. Yet parole for fixed-term prisoners is to be discarded and, logically, the risk of reconvictions will substantially increase.
If the consequences of the new remission scheme are likely to be so counter-productive, are there other and better reasons for its introduction? For instance, will it lead to greater confidence in the sentences given? Your Lordships will have noticed Clause 22, which is disarmingly described as "Continuity of sentencing". That is the clause which instructs the courts to reduce their fixed-term sentences by one third, so that a six year sentence will amount to only four years. As a layman, I believe that in order for Clause 22 to succeed it will be necessary to explain to the general public in plain terms that it means what it says; that shorter sentences must be given by statute. I very much doubt whether that news will be widely welcomed as a public protection measure.
On the other hand, might there be administrative reasons for introducing remission for good behaviour? I hope that the Minister will give a little information about the exact figures. I understand that the task of deciding every two months whether the behaviour of upwards of 30, 000 prisoners has attained or exceeded "prescribed minimum standards" will be enormous. One can conclude only that hard-pressed prison staff will resort simply to the ticking of boxes on forms, an exercise which will eventually become entirely automatic. It will also be a procedure which appears to disregard entirely the appropriateness of whether prison officers should become the arbiters of early release for prisoners in their custody.
Therefore, I am suggesting that already warning signals are hoisted over Clause 10. I can see no reason why the existing parole system could not simply be tightened up so that a prisoner would not be eligible for parole, if that is what the Government wish, until later in the sentence. That is a simple change which would avoid the problems of the remission scheme, which are formidable indeed.
I say that because there are two remaining issues which are specifically provided for in Part II which raise major problems. The first involves release conditions. When a prisoner is released early now there is a licence which spells out standard conditions upon which parole is granted. But those conditions can be supplemented by special conditions. These days, the Government are concerned—and rightly concerned—about the protection of victims of crime. One of the ways in which that protection can be given is by special licence conditions: for example; a condition that a released prisoner shall have no contact with a victim or a victim's family; a condition of psychiatric oversight during the
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supervision period; or a condition to do some offence-focused work to continue to tackle the causes of the prisoner's crimes.
Such conditions can be absolutely crucial for successful supervision. Yet there is nothing in Part II to explain how the conditions attached to release supervision orders are to be decided, except for the rather curious involvement which the Parole Board is to have in deciding on "hostel" or "curfew order" conditions. Bearing in mind that the board will have had nothing to do with the prisoner up to that point and will not do so in the future, the practicality and expense of that Parole Board involvement will need to be probed in Committee.
However, my concern now is that it is by no means clear what information will be available on which prison staff will be able to base release supervision order conditions. Even more significantly, it is also very unclear what, if any, offence-focused work can possibly be prescribed for the supervision period, bearing in mind that the worst behaved prisoners will be under supervision entirely after their sentences have been fully served when the sanctions hanging over their heads will be very limited. At the moment the sanction of recall to custody can most certainly convince a prisoner of the need to try to reform and rehabilitate while under supervision.
That leads me directly to the other issue that I wish to mention; namely, recalls, which are a most important protection-of-the-public issue. At the moment, long-term prisoners are subject to revocation of their licences and recall to prison by the Home Secretary on the recommendation of the Parole Board, which meets daily and treats recall cases as a priority. And, crucially, the power to recall extends not only to licensees who commit another crime but also to those who ignore their licence conditions and whose behaviour indicates a probability of reoffending. With those powers, in the majority of cases it is possible to recall prisoners before they can reoffend. That is a very important safeguard for public protection.
That safeguard is now largely to be removed. What is proposed in the Bill is that proceedings for breach of the conditions of a release supervision order must be brought in the courts. No doubt my noble friend will correct me if I am wrong, but I understand that the existing recall scheme for short-term prisoners, which relies on court hearings, has already shown that breaching for anything other than a further offence is rare because of the obvious difficulty of bringing cases to court where a licensee has not actually committed another offence.
Therefore, no longer will recalls provide a safety net which can catch a prisoner under supervision who appears to be going off the rails before another crime is committed. I hope that the Government will be prepared to look again at the recall provisions in the Bill, which appear to be a backward step as regards protection of the public.
My noble friend Lady Blatch in her opening speech reminded us that in another place the supervision period for prisoners was extended. I hope that I do not sound

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grudging when I say that I welcome that as far as it goes. However, I must point out that, as there is to be no real risk assessment, that is bound to have a detrimental effect on the production of a good supervision plan on which the quality of the supervision period is based. If things then start to go wrong it will be far less possible to recall a prisoner under supervision.
Finally, the Bill is subject to a curious contradiction. On the one hand it creates automatic life sentences under Clause 1 for serious offences about which the Home Secretary is understandably concerned, and the Parole Board is to be made responsible for the release of those prisoners through the well-tried process of risk assessment. Yet, on the other hand, the Bill leaves other prisoners who have fixed-term sentences, however long, to be released early by a remission system which, in my submission, is devoid of any worthwhile risk assessment. Those systems really do not sit logically together, unless perhaps a calculation was made when the Bill was being drafted that, because of Clause 1, only offenders who are not really dangerous would come within the scope of remission awarded solely for good behaviour.
Into this rather uncertain scene has stepped the Centre for Criminological Research at Oxford University. In a piece of research published in the November edition of the Criminal Law Review it described how it took a sample of 324 prisoners who had been convicted of a sexual or a violent offence and who were having their last possible parole review, having failed to get parole earlier on in their sentences. The Oxford research then discovered that of the prisoners in their sample who were found by the Parole Board to be still dangerous—not unsuitable for parole but still dangerous—only one in every 10 would have been eligible for an automatic life sentence under Clause 1. In other words, nine out of 10 dangerous prisoners in that research sample would have had to receive fixed-term sentences and would have been eligible for early release simply on the basis of their good behaviour in prison.
I realise that early release is, at least for me, a difficult and controversial subject. It becomes anyone involved in it to be ready to try to listen and to learn from proposals for change. But in the light of that piece of research, I really do think that the introduction of this remission scheme in the Bill for good behaviour could be a disastrous move for public safety. It is on that ground, repeated again and again in Clauses 10 to 14, that I believe this part of the Bill fails. I hope that the Government will be prepared to look at some of the issues that I have mentioned before it is too late.
6.52 p.m.
Earl Russell: My Lords, amid so many judges and experts, I appear as the statutory layman. In that capacity, I should like to offer my congratulations to the noble and learned Lord, Lord Taylor of Gosforth, who I am delighted to see in his place this evening. While going over my papers yesterday, I was impressed yet again by the extent to which we are indebted to the noble and learned Lord's clarity of mind in marshalling the arguments that we are now deploying.
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On the whole, I thought that the Minister made a very reasonable introduction to the Bill. However, I was a little distressed when she ascribed much of the concern to a misplaced concern about the relationship between government and the judiciary. There is such a concern. However, in my opinion, it is neither misplaced nor trivial. Indeed, it would be altogether demeaning our concern about the Bill to make out that that is what it is about. Our concern is about a fundamental disagreement regarding the nature of justice. The mandatory minimum sentence is a filing clerk's notion of justice: you put it under a particular heading and then you know what sentence to give it.
I agree much more closely with the noble and learned Lord, Lord Bingham of Cornhill, who made such a distinguished speech earlier today. He said that the object of justice was to match the sentence to the gravity of the offence—that is to say, to the particular offence committed by the particular person on the particular occasion, not just to the heading under which we choose to classify it.
I do not believe that the Minister assisted her case by invoking the mandatory life sentence for murder which, as your Lordships know, has already incurred the displeasure of this House. If there is one crime which is not always the same in one case or another, it is murder. When we debated the matter before on consideration of Commons Reasons, I recall something that the noble and learned Lord, Lord Hailsham, said at that time. Unhappily, the noble and learned Lord is no longer in his place tonight but, nevertheless, I gave him notice that I intended to quote this point. The noble and learned Lord contrasted a mercy killing of a terminally-ill patient with arson in a crowded building in which, by the grace of God, no one was killed. On that occasion the noble and learned Lord concluded, "Let them have their silly way". However, before it is concluded that that would be the noble and learned Lord's advice on any future occasion, we should remember that that was said on consideration of Commons Reasons.
On another occasion, the noble and learned Lord, Lord Ackner, contrasted the treatment of Private Lee Clegg with the idea of the mandatory minimum life sentence for murder. I know that that case is the sort of hard case that makes bad law, but for the Government that is really a very difficult exercise. On 23rd May I dwelt on the difficulty of classifying all rapes together under the heading of "equal gravity". I shall not do so again. Nevertheless, one can do the same with burglary.
I recall a burglary in my father's house when the burglar found one bottle of Red Hackle whisky. He drank the lot at his leisure and went off without taking anything else. My father reported the incident to the manufacturers of the whisky and suggested that they use it for an advertisement, which I believe they did. It would be truly absurd to treat that as an offence of the same gravity as ransacking a house of all the valuables that it contains and then trashing the house to boot. These crimes are not on all fours. I know that there is an escape clause, but it is an escape clause designed by Dr. No for James Bond; it is not for daily use.

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The noble Lord, Lord Blake, made the point that minimum sentences are not unconstitutional. That point was made by the noble and learned Lord, Lord Taylor of Gosforth, on 23rd May last. As a fellow historian, I agree with the noble Lord, Lord Blake. What is more, I shall cap what he said. Parliament has done this before. It is then relevant to consider what happened when Parliament did it before. In considering the effect of proposals, we should compare them with what happened when they were put into effect on other occasions. Such comparisons must be with other places or with other times.
We have heard from the noble and learned Lords, Lord Bingham of Cornhill and Lord Woolf, about what happened when it was done in other places in the United States: it has not worked very well. Therefore, I should like to touch on what has happened when it has been done in other times under this jurisdiction. Up to the penal reforms of the 1820s, theft above the value of one shilling was a capital offence. During the 16th century inflation rose to about 500 per cent. which means that there was an unintended and rapid escalation in the severity of sentences. What happened illustrates to a nicety the maxim of the noble and learned Lord, Lord Bingham, that attempts to destroy discretion do not destroy it but rather transfer it. I say that because, of course, the capital penalty depended on the valuation of the stolen goods. Their valuation, being a matter of fact, was a matter for the jury. So, for example, in one case burglars stole a whole set of silver out of a gentleman's house worth goodness knows how many pounds, but the jury valued it at eleven pence halfpenny. Therefore, no capital penalty resulted.
One particularly clear illustration of how this is, as the noble and learned Lord, Lord Bingham, said, an exercise of a discretion which was discovered by a former Fulbright scholar to whom I had the honour to be host and who is now a distinguished professor in the United States. I have in mind the case of a certain Mrs. Harridan. I assure your Lordships it is a genuine name. Mrs. Harridan found a young girl of 15 whose father had recently died. Her mother had remarried a man the girl did not like. Mrs. Harridan persuaded the girl that her stepfather was going to embezzle her family heirlooms, but that she, Mrs. Harridan, would take them into safe keeping so the girl could have them when she grew up. The girl duly removed the heirlooms from the house and gave them to Mrs. Harridan who, of course, sold them. The jury, when it assessed this, should have found the same verdict for both of them. The girl had actually taken the things out of the house. But the jury acquitted the girl and hanged Mrs. Harridan. If that is not an exercise in discretion, I do not know what is. So the noble and learned Lord was quite right: if you attempt to destroy discretion, you transfer it.
The noble Lord, Lord Tebbit, touched on the issue of the concern of the public. That is deep and real. However, what the public want, and want passionately, is reduction in crime. It does not mean that the public are necessarily the best judge of how one gets that. It is the basic principle of representative government that the
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public say what they want and it is for us to sit down and try to work out how the public can get it. The public are not always the best judge of every technical issue.
I grant that the basic and original purpose of sentencing was to prevent private vengeance. That is vital. So we must always take account of public concern. Our earliest attempts at statutes, some 1400 years ago, were attempts to mitigate the blood feud by the imposition of a fixed level of compensation. The attempt to take vengeance away from the private individual and bring it into the hands of the state is a basic force behind the criminal justice system. But that does not mean that the public should judge exactly how much the vengeance should be in each individual case, because when one does that, and even more when one encourages the victim to be involved in the sentencing of his or her own case, that reverses the process—a basic process of civilization—of transferring the judgment to the state. That raises the question whether the contents of this Bill will prevent crime.
I do not see how any sentence can prevent crime until people believe they will be caught. When the chances of being caught are so small as they are now, I do not think it matters what sentence one gives. Criminals are by temperament gamblers. Gamblers by temperament believe that they will be the lucky ones. It is that belief one has to dent if one is to discourage crime. We on these Benches would try to reduce crime: first, by prevention—by lighting, locking and other practical devices; and, secondly, by better detection, which means more resources and more people for the police. Thirdly, we would try to reduce it by more effective prosecution. The Home Secretary could have done far more with £100, 000 for the Crown Prosecution Service than with all the money that is being spent on this Bill. Fourthly, we would pay attention to staffing levels in the hope of reducing the amount of crime in prison.
The Home Secretary reasons on the assumption that people are not committing crime in prison. In a legal sense that may be true, but they are certainly committing offences against the person at a quite alarming rate. The noble Baroness may recall a debate on an Unstarred Question introduced by the noble Lord, Lord Henderson of Brompton, on the Howard League report on the treatment of youth offenders entitled Banged Up, Beaten Up, Cutting Up. That showed a quite alarming degree of offences in prison. I believe the words "safe custody" should mean exactly what they say. If we cannot prevent offending in custody we ought to keep down the prison population and keep up its staffing level until we can, because if we cannot do that we are failing to achieve the object of the exercise.
I think this Bill is not merely a misconceived Bill; I think it is a useless Bill. The Government's test is protecting the public. It is a fair test but that, I believe, is precisely the test which this Bill fails.
7.5 p.m.
Lord Renton: My Lords, although the noble Earl and I have different views on the Bill, I am glad that I can agree with some of his remarks, particularly his reference to my noble friend Lady Blatch. I do not know

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of any other occasion when one Minister has found it his or her duty to pilot three major controversial Bills through your Lordships' House simultaneously. I say with deep respect to the noble and learned Lord the Lord Advocate that the noble Baroness, Lady Blatch, has had to do that almost single handed. There is another pleasing aspect that I should like to mention. I have been in your Lordships' House for only 17 years but I do not remember a previous occasion when we have had the noble and learned Lord the Lord Chief Justice and both his predecessors with us for a debate.
Although for 10 years I tried many criminal cases, as a recorder and as a relief judge at the Old Bailey, I have not sentenced anyone for 25 years. I hope therefore that your Lordships will realise that I am not putting forward my views based on professional experience, but—I hope the noble Earl will be pleased to hear this—as a parliamentarian who, like him, believes that the public expect us to do something when there is a serious problem.
The public look to Parliament to try to do something about reducing crime. The victims of crime especially feel that way. The noble Earl referred with admiration—and so do I—to the speech made by the noble and learned Lord the Lord Chief Justice. I refer too to the remarks of the noble and learned Lord the Master of the Rolls. I shall study both speeches, each of which was, if I may say so, a bit negative. I say that with the deepest respect, but they were negative. The noble and learned Lords condemned the Bill but did not have anything much by way of an alternative to suggest. I shall read especially the speech of the noble and learned Lord, Lord Bingham, in order to see what detailed amendments may be necessary in the course of the Bill's passage through your Lordships' House.
On balance I support the Bill. We have an alarming and ever increasing crime rate; it has grown every year since Coronation year—the only year, I believe, this century when crime fell. People expect us, with the help of the police and the detection of crime, and in the hope that the courts will use their sentencing powers as necessary, to punish convicted criminals, to dissuade them from committing further offences and to discourage other people from offending. However, there is a feeling, rightly or wrongly, that the courts are not using the powers that Parliament has given them to the fullest advantage. Of course we all know—even lay people know—that judges vary tremendously in the discretion they exercise when sentencing. Some judges are known to be tough; others are known to wish to be as humanitarian as possible. When I was a recorder, I used to be a little criticised. I knew that prisons were overcrowded and universities of crime. Therefore I tried all I could to keep people out of prison. But that process can go too far. Let us take burglaries, for example. They are dealt with in Clause 3 of the Bill. In 1993-94, the average sentence on a third conviction of burglary was less than 19 months. As the noble and learned Lord the Lord Chief Justice rightly said, burglaries vary. A burglary can consist of stealing a bottle of milk. It can consist of breaking into someone's house, not finding
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anything worth stealing, but frightening the old lady who lives in the house. The person who does that deserves a heavy sentence.
We know that discretion is given to the court regarding exceptional circumstances in Clauses 1 and 2. I agree that until now the courts have given a very narrow interpretation of that. But surely, if only a bottle of milk is stolen, and nobody is disturbed, that may be an exceptional circumstance. I should have thought that the courts have to apply that opportunity which Parliament gives them with regard to exceptional circumstances to avoid what might be an obvious injustice. I hope that the courts will not interpret "exceptional circumstances"—
Lord Tebbit: My Lords, I am grateful to my noble friend for allowing me to intervene. He said that it is many years since he was a recorder. I wonder whether he can recollect on how many occasions he had brought before him charged with burglary a person who had stolen nothing more than a bottle of milk. This individual has featured a great deal in our debate today. I wonder how often he featured in the courts.
Lord Renton: My Lords, my noble friend rather strains my memory. I have not tried a case for a quarter of a century. However, I remember one case when I was Recorder of Guildford. The house of a noble Lord who became Speaker of the House of Commons and is now, I am pleased to say, a Member of your Lordships' House, was broken into by a young person who had never committed a previous offence. Nothing was stolen. I put that person on probation. I hope that I was right. But some people were very surprised that that was what I did. There has to be judicial discretion. If the judges have not used their discretion in ways which achieve the purposes for which the discretion is given, then Parliament has seriously to consider the matter. That is what the Home Secretary has invited us to do. I cannot bring myself to say that the Bill is fundamentally wrong.
Perhaps I may speak briefly on Clause 2 which requires minimum mandatory sentences of at least seven years for drug dealers who have already been convicted on three separate occasions. I do not know whether "Panorama" can be credited with always being right, but I am told that the purpose of a recent programme was to indicate that 70 per cent. of crime in this country today is drugs related. If that is so, we really should be stiffening sentencing. I shall not trouble your Lordships with the details, but it is rather similar to what has been happening as regards burglaries. The courts are not using to the full the powers that they have to sentence people committing these offences for a fourth and subsequent time.
The only clause in the Bill about which I have a real doubt is that which deals with mentally disordered offenders. They include people suffering not only from mental illness, which is often curable, but from mental handicap—sometimes, I think, wrongly called learning disabilities—which is incurable. As a result of Clause 43, those who are mentally handicapped may have to be detained in prison which might not be the

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right way to deal with them. I hope that we can have another look at Clause 43. I think that the Government should be congratulated on their courage and on their wisdom.
7.15 p.m.
Lord Oliver of Aylmerton: My Lords, among all the eminent lawyers in this House, my credentials for addressing your Lordships on the subject of crime and sentencing are probably the slenderest. My practical acquaintance with the subject is limited to one occasion a little under 50 years ago when, as a very young barrister, 1 was called upon at the Central Criminal Court to defend, with a conspicuous lack of success, a young man who was charged with five separate counts of causing grievous bodily harm to police constables. It was an experience which convinced me that in so far as I had any future at all in the practice of the law it lay rather in the quiet cloisters of Lincoln's Inn than in the rough and tumble of the Old Bailey.
Nevertheless I felt emboldened to address your Lordships in this debate simply because I believe that the Bill that we are discussing is, as has been said, a bad Bill. No one can reasonably deny that it is the duty of a government of any colour to bring forward measures to discourage, to punish and to protect society against crime if such effective measures do not already exist. No one can sensibly deny that crime is only too prevalent. However, this essay at tackling the problem seems to smack somewhat of what nowadays might be called a syndrome of ill-conceived and ill-considered measures emanating from the Home Office.
Only last week the House considered a measure by which the Government seek to reintroduce and revive in our law the ancient Anglo Saxon custom of deodand which visits upon the instrument the sins of the user. This present Bill seems to me to be another retrograde step, turning the clock back (as it seemed to me when I first had the Bill read to me), and to be more appropriate for the early years of the 19th century when customary sentences of transportation for, for instance, grand larceny were filling the hulks on the Thames with a transient and reluctant population.
Indeed, I understand that a press report has even suggested that there is in contemplation the possibility of purchasing prison ships from the United States. I do not know whether or not that is true. It is probably as mischievous and inaccurate as most press reports. But it rather sets the climate in which the Bill is being discussed.
The provisions of the Bill are intricate. This is not an occasion upon which it would be right to consider the minutiae. Some of the curious consequences of the Bill, at least in its original form, were indicated in an article by Dr. Thomas in The Times last November. If it be true that hard cases make bad law, so, I suggest, is legislation spawned in the parrot cries of party political conferences. I cannot resist the feeling that this Bill is one such example.
Two areas in particular give rise to concern. I had intended to say a good deal more about them. However, the noble Lord, Lord Belstead, said all that was
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necessary about the dangers and difficulties of replacing a well-tried and well-established system of parole with a system of brownie points for good behaviour. I cannot imagine anything better calculated to cause unrest or which is a better recipe for corruption, to say nothing of the administrative burden that will be placed on prison staff.
Mandatory sentences are the other cause for concern. Some crimes are so horrendous that social conscience would say that the perpetrator must never be released. There are some criminals who are so unregenerate that even the impotence of old age would not exhaust their capacity for evil doing. But the judges have been able to deal with those. I cannot see the purpose of depriving the judges of the discretion to treat each individual case as it arises in accordance with its circumstances and the justice of the case.
I believe it was in 1846, following the establishment of the Central Criminal Court, that judges were given a very much enlarged discretion in sentencing to enable them to alleviate some of the injustices that were caused at that time by mandatory sentences. If we are to put the clock back a century and a half, there must be very good reason for doing so. I confess that nothing I have heard suggests any such good reason. It seems rather a pity that experienced judges should not be entitled to consider in each individual case the degree of guilt and the circumstances of the case.
It has been suggested that the "let-out" lies in the words,
"unless there are exceptional circumstances which justify not doing so"—
—not passing the mandatory sentence.
That will not do. It is clear on the face of the Bill that it will not do. An escape clause such as that, which has always received a very restricted meaning, cannot be expanded into an opportunity for a judge to consider the individual circumstances, the degree of guilt of an accused and so on. It is perfectly apparent on the face of the Bill that it can not be so interpreted. On examination, the provisions of Clause 8, contain a reference to the court taking into account the justice of the case. It is clear that the draftsman did not intend these words about exceptional circumstances to cover a matter that was already expressly covered in another section in a different context.
I came to the House with some considerable nervousness to deliver a rather longer speech than noble Lords will now have visited upon them. That is partly because this is the first occasion on which I have plucked up enough courage to address the House since my sight left me. But the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Carlisle, expressed so completely and so beyond criticism everything that I wanted to say that I wish to take the same course, at rather greater length I am afraid, as that taken by the noble Lord, Lord Mishcon, and say that I cannot improve upon what they said. I adopt all their remarks.
I merely add this. As the noble Lord, Lord Rodgers, said, it is not customary to ask the House at Second Reading to reject a Bill in toto. I do not do so. However,

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I urge the House to subject the Bill, in Committee, to the most searching, the closest and the most suspicious scrutiny.
7.26 p.m.
Baroness O'Cathain: My Lords, I was present for and listened earnestly to 17 of the last 18 speeches. With two honourable exceptions, namely the remarks of my noble friends Lady Young and Lord Tebbit, I feel that the point I wanted to make has received nothing like the same airing as the popular points in this debate. So although I greatly admire the initiative taken by the noble Lord, Lord Mishcon, and by my noble friend Lord Blake in being extremely brief, I fear that I cannot follow it.
We must not forget that the Bill arose out of the White Paper, Protecting the Public—not protecting the rights of judges and not protecting the rights of offenders. The public are demanding that greater protection should be afforded to them. Again and again today, concern was expressed about prisoners, about their welfare, their education and the costs of keeping them in prison. That is all very worthy. But it would have been nice to hear even 10 per cent. of that concern directed towards the victims of their crime.
Although the battle against crime is relentless, the perception is that crime is on the increase and serious crime is growing at a very fast pace. As we have mentioned many times in this House, perception is all. Everywhere one is asked: what is being done? This Bill tackles part of the fight against crime—a part that has had a great number of high profile detractors both today and on other occasions. Yet it has a huge amount of public sympathy. Not all the public can be wrong all of the time. The fact that only one part of the problem is being tackled, as the noble Lord, Lord McIntosh, remarked, does not mean that we should not tackle that part.
We have to realise that the basic fear of so many people going about their normal lives is very real. They need protection that is at least equal to that of the rights of judges and the welfare of offenders. Despite what anybody says, there is a real fear of crime. There is a fear of assault, rape, burglary and drug related offences. I am sorry to see that the noble Lord, Lord Rodgers, is not in his place; I should have taken issue with his comment—it related to the result of a survey, but one wonders about these surveys nowadays—that only some 3 per cent. of women are afraid to go out at night. I must know all of that 3 per cent. If that is the case, how is it that there is a growth in in-car telephones directed solely at women, and personal alarms? One is asked by taxi drivers to make sure that one rings them and asks them to go to a secure address. If that is not indicative of the concern of many people about women being out on their own at night, I should like to know what is.
On a fairly light note, one night during the last Session in this House, when the debate ended at around 1 o'clock in the morning, as I left the Chamber one of the senior officers said, "I'm glad you don't have to
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drive very far on your own tonight". I said, "Well, unfortunately, I do. I'm driving down to my home in Sussex". The officer said: "Well, my Lady, this might seem a strange suggestion but in the near future I suggest you go into"—wait for it, my Lords—"a sex shop and buy an inflatable male model". I did not know that such things existed. He said: "Get your husband's jacket and hat and keep them in the boot of your car. If you find yourself in similar circumstances, driving 63 miles to your home in Sussex, late at night or in the early hours of the morning, blow the model up and sit it beside you in the passenger seat". I thought that the man was off his "rocker" but I talked about it to several friends, not least magistrates in Sussex. They all thought it was a good idea. They would not have done so if there had been no reason to think it was a good idea.
There is a problem, and I am sorry that there have been only two female speakers so far in the debate. I do not believe that the male Members of the House have any conception of the inward fear most women have in such circumstances.
The Bill tackles the punishment for such crimes. Discretion is not being taken from the judiciary, despite what the right reverend Prelate the Bishop of Oxford said. Compassion is not being withheld from prisoners who repent and whose behaviour now indicates that they can be integrated into society. However, victims and the general public will be comforted by the measures proposed. The fact that victims will know the length of time that the perpetrators of the offence against them will be kept in prison will be a comfort to them. Too often they are the people without a strong voice who are disregarded.
The magnificent speech of the noble and learned Lord the Lord Chief Justice lasted almost 30 minutes and it was utterly compelling for almost every second. However, I believe that he mentioned the word "victim" twice. He begged us to discharge our duty to our fellow men, but that includes victims. The victims need our support and action; the general public demand action and we must not fail to yield to their demands.
The proposals in the Bill concern repeat crimes. I emphasise that. The Bill should go a long way towards the deterrence of repeat crimes of the most serious nature and those are what we are talking about. I support the Bill wholeheartedly.
7.32 p.m.
Lord Donaldson of Lymington: My Lords, this is a thoroughly bad Bill. If it were a horse and I was referring to its pedigree, I should say that it was by "Misplaced Public Anxiety" out of "Electoral Ambition". The anxiety of the public as to current sentencing policies is wholly understandable, it has no familiarity whatever with the infinite variety of circumstances affecting particular crimes, particular criminals and their victims. Its sole source of information consists of media reports which are necessarily both highly compressed and highly selective.
What is much less understandable and, in my view, wholly inexcusable has been the attempts made by some members of the Government to fuel those anxieties by

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various means, including the use of misleading statistics. I take one example: domestic burglary. As we all know—judges above all—it is of deep concern to all householders and their families. The courts are well aware of that and take it into account when seeking to make the punishment fit the crime, the offender and its effects on the victim.
In 1994, the range of first custodial sentences for that offence was from two months to seven years. For the third or more of such sentences it was between six months and 10 years. The Minister implied today in an aside that the extremes of that range are rarities, but she did not condescend to give us any figures to support the proposition. That range of sentences only emerged in a Written Answer to a Question in this House. Previously the Government had made great play of average figures as showing that repeat burglars need only expect an increase of less than three months when comparing the length of their first custodial sentence with that imposed upon the third or subsequent conviction. Regrettably, the Minister has again done so today. So has the noble Lord, Lord Renton. In fact, no court has ever passed either of those average sentences—the first was 16.2 months, the second was 18.9 months—any more than anyone has ever encountered the national average family's 2.4 children.
If the Government insist that the courts are insufficiently responsive to the public's wish for stiffer sentences, perhaps they would explain why the prison population is rising so rapidly, at least since 1994. That is a significant year because all the Minister's figures relate to it, as did those of the noble Lord, Lord Tebbit. Later figures, have we none.
The core provisions of the Bill are contained in Clauses 1, 2 and 3. Let me make it absolutely clear to the noble Lord, Lord Blake, and others that I have no doubt whatever that Parliament is entitled to take the steps foreshadowed in the Bill. However, I question whether it would be either wise or just to do so.
The mandatory life sentence for murder is unique. We are now asked to say that a second offence of serious violence is on a par with it. The reluctance of juries to convict, to return a verdict of guilty on a charge of murder is well evidenced by the extraordinary number of occasions upon which, on the flimsiest possible evidence, they find the accused not guilty of murder but guilty of manslaughter by reason of diminished responsibility. The same is likely to be true of second offences of serious violence, apart from successive rapes.
But the problems will not end there. As has been mentioned, prosecutors will be faced with offers on behalf of defendants to plead guilty to actual bodily harm instead of grievous bodily harm with intent and indecent assault for men charged with rape. If the reduced plea is not accepted, the victims will face the harrowing experience of having to give evidence in court and the courts themselves will be overburdened. If the plea is accepted, the court will be obliged to sentence on the false basis that the offence was less serious than was in fact the case. Make no mistake, that will apply equally in the case of someone charged with
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a first qualifying offence because any lawyer worth his salt will advise his client of the dangers of acquiring a first qualifying conviction.
There is a further problem in rape cases which has been mentioned and which should certainly not be underrated. By the nature of the crime, the victim is likely to be the only witness and it must occur to the offender that his chances of avoiding conviction would be much improved if he eliminated the only witness.
Let me make it clear that I do not for one moment dispute that there is a need for some form of indeterminate sentence in this very serious or potentially serious category of cases. But it should be in the form of a reviewable sentence. By that I mean that the convicted man, the offender, will be required to stay in prison for X years, as determined by the judge from the tariff sentence and that thereafter he will have to apply to the court—not the Parole Board—for his release. Make no mistake about it, I do not underrate the vast importance of the work of the Parole Board and I expect the court to rely heavily on its advice in reaching a decision. But I make clear that the reviewable sentence, whatever else it is called, must never be called a life sentence. Honesty in sentencing requires that and it should also avoid the confusions which arise under the present system. Also, it should never or almost never be a life sentence.
It should not be forgotten, when I make the suggestion that it should be for the courts to decide, that the courts and the courts alone are the ultimate guardians of the liberty of individual citizens, whether or not they are criminals, whether or not they are victims. The courts should not lightly surrender that responsibility and Parliament should not lightly divest them of it.
I turn briefly to the minimum sentence of seven years for a third time Class A drug trafficker. I find it no less objectionable, for the reasons that have already been given. Any large-scale professional drug trafficker would get seven years for a first offence. We are worried about the addict and above all the young addict who uses a small amount of the drug to feed his or her addiction and passes it on to friends for money. That is the problem area. I think no one would suggest that a seven year sentence is appropriate in those kinds of cases.
There is the minimum three-year sentence for domestic burglary. I shall not run the milk bottle line. I shall point out that, unlike the other two offences, in this case there is no lower age for acquiring the qualifying offences. In fact, I think I am right in saying that there is a special provision in the Bill altering the law so that account can be taken of offences committed by those under 14 years of age. So there are two very minor crimes committed by children—that is what it amounts to—and almost certainly opportunist crimes. Come their 18th birthday, they yield to temptation once again and get three years. Apart from the injustice of that, the House must ask itself whether a three-year sentence in such circumstances would either reform the offender, deter other offenders of a like kind, or simply amount to a three-year course in not getting caught next time.

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Underlying all those provisions in the Bill seems to be the fallacious idea that crimes and criminals are homogeneous. Nothing could be further from the truth and every judge can testify to that from his own personal experience. Equally fallacious is the assumption that in so far as crimes and criminals do differ, judges, despite their training and experience, are quite incapable of distinguishing between them and passing appropriate sentences. Of course they are and in the vast majority of cases they do. I say "in the vast majority of cases" because they are human. There are 500 judges. It would be a miracle and indeed would suggest that there was some fraudulent manipulation by my noble and learned friend the Lord Chief Justice if he could get all of them to pass the right sentences at all times.
I say one last word relating to the exceptional circumstance so-called let-out. If it is treated as a let-out, the judges are not being true to their oath, which is to do justice according to the law. They will be deliberately distorting the law. The late Mr. Justice Stable is reputed to have done it in one case in which he directed the jury that, on the facts and the law, there was only one verdict that it could possibly return. However, he added that, in accordance with his duty to direct them as to all the law that might be relevant, he had to tell them that, if they perversely found a verdict of not guilty the prosecution could not appeal. I mention that not to commend it as an attitude, although I have some sympathy with it, but to illustrate that I do not believe that judges will use that exceptional circumstance provision as a let-out. On the other hand, I totally support any suggestion for varying it in Committee to provide that judges should not be required to act contrary to the justice of the case, taking account of all the circumstances of the crime, the criminal and, above all, the victim.
7.46 p.m.
Lord Campbell of Alloway: My Lords, it is a privilege to follow the noble and learned Lord. In particular, he put the record straight on the statistics and emphasised the dangers of the American plea bargaining system and its effect on the victims, which was the concern of my noble friend Lady O'Cathain.
Albeit certain aspects of the Bill could afford a requisite and constructive response to public concern and are welcome, not so the core provisions in Clauses 1 to 3 and in particular Clause 1, with which this speech is exclusively concerned. As the noble Lord, Lord Rodgers of Quarry Bank, rightly said, it goes to the heart of the matter. As the noble and learned Lord the Lord Chief Justice said, it produces the certainty of injustice.
The virtual annihilation of judicial discretion in sentencing is no way in which to seek to alleviate public concern, however legitimate that concern may be. In view of the magnificent speeches, if I may say so without presumption, of the noble and learned Lords the Lord Chief Justice and the Master of the Rolls I can only defer, with respect and without hint of qualification, to their authoritative expositions. It would be an impertinence for me to seek to say more about them save this: how could they be described by my noble
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friend and sponsor Lord Renton as "negative"? They were about the most forthright and positive contributions I have heard in this House, and I have been here a little less time than my noble friend.
Lord Renton: My Lords, perhaps my noble friend will allow me to intervene. What I was getting at—I believe it is quite true and that neither of the noble and learned Lords would dispute it—was that their speeches were confined to criticising the terms of the Bill. They did not put forward alternative proposals. That is why I ventured, with deep respect of course, to say that they were a bit negative.
Lord Campbell of Alloway: My Lords, we shall all read Hansard. I must get on with my speech as there are many more speakers to come. It seems to me, however, that my noble friend was not entitled to suggest that either of those magnificent speeches had a hint of a negative aspect. I stand by my impression until I have read the Official Report.
It is no secret that senior members of the judiciary and others, including myself, I admit, who sit on these Back Benches, have sought accommodation on this matter, but in vain. The hope is that, in the light of this Second Reading debate, the drawbridge may be lowered and that some amendment may be devised which will be acceptable to government and the judiciary, such as the deletion of "exceptional". As the noble Lord the Lord Chief Justice so truly said—he was supported by other noble and learned Lords—this is no escape route from the vice of the proposals, none whatever. As the noble and learned Lord, Lord Oliver of Aylmerton, said, it is no good for that purpose, and he gave a considered reason in relation to the construction of the Bill as a whole.
Certain proposals were put by the noble Lords, Lord McIntosh and Lord Rodgers. No doubt we can consider those at Committee stage. But amended, assuredly, the Bill shall be. Some measure must be introduced to ensure that a judge is never obliged to impose a sentence which is contrary to his conscience; which he considers to be unjust and inappropriate. That is my bottom line. It is plain English and readily understandable.
It is accepted that our sentencing machine as implemented on release affords scant deterrence and inadequate protection for the public from persons who have committed serious crimes and are likely to reoffend on release, and that something must be done about that. But the mandatory life sentences proposed by Clause 1 of the Bill, which seeks to virtually remove judicial discretion, are not appropriate. As many noble and learned Lords who have a wealth of experience, including the Lord Chief Justice, agree, that would work injustice in many cases.
In context with the administration of criminal justice I accept, on the authority of my noble friend Lord Blake, that there is no constitutional impropriety. Nonetheless, I go along with the view of my noble and learned friend Lord Woolf that sentencing is a matter for the judiciary, as was acknowledged by the noble Lord, Lord Rodgers. Release is a matter for the executive, which has the benefit of a judge's recommendation made when

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imposing a life sentence, though that is many years before release. It is of constitutional importance—I put it no higher—because of the danger to which the noble Earl, Lord Russell, so cogently referred, that the separation of powers should be acknowledged by the legislature and should not suffer further erosion.
It has been suggested that Clause 1 is modelled on discretionary life sentences and that the judge retains discretion; that he need not impose a life sentence but, if he does so, under Clause 23 he may order the relevant part of the sentence to be served. That is an absurd suggestion and is not well conceived. The argument remains wholly circuitous until "exceptional" has been deleted from Clause 1 and an amendment introduced to restore judicial discretion.
It is interesting that Clause 1 is not acceptable to Women Against Rape. I received a handout from that organisation this morning which adverts to the proposition—it was touched on by the Lord Chief Justice in another context—that a woman may have a previous conviction for GBH prior to marriage years ago and a subsequent conviction of manslaughter for killing her husband after years of brutal domestic violence. Under this Bill that would involve a mandatory life sentence as though she had not been convicted of manslaughter, but of murder. That is but one example of the difficulties of the form in which Clause 1 is drafted. It raises many questions which are not easy to resolve.
It is not possible to devise any definition of general application of "exceptional circumstances". The judge must state in open court the grounds on which he formed his opinion that there are such circumstances and he must also state what those circumstances are. It is a matter for the objective consideration of the appellate court; but without any definition of the norm it is not easy to decide judicially what is "exceptional" and what may be treated properly by the judge as "exceptional" on the facts of any specific case.
If the judge is satisfied that there is no prospect of reoffending either as regards the category of crime of which a person is convicted on the first occasion or of the category of crime of which he is convicted on the second occasion, it is thought that such could constitute "exceptional circumstances" which would justify a departure from the norm which requires the imposition of a life sentence. But would it? In view of what was said by the noble and learned Lord, Lord Oliver of Aylmerton, would it? Would one be met in the Court of Appeal by the argument—which the noble and learned Lord did not fully deploy—of construction? What is "exceptional"? There are eight categories of serious crimes within the meaning of Clause 1 which fall into five types in context with murder, manslaughter, GBH, rape, under-age sex and firearms.
I conclude with this question—there are so many others: would a life sentence be appropriate if the judge was satisfied that there was no prospect of reoffending as regards either type of serious crime in respect of which the accused had been convicted? Who knows? Noble and learned Lords who have spoken do not appear to be able to provide an answer. How can they without any definition of the norm?
7.58 p.m.
Lord Archer of Sandwell: My Lords, perhaps the most serious penalty for leaving it late to set down one's name for a debate is a double one. First, all the best arguments have been fully deployed; and, secondly, a contribution is judged less by its comprehensiveness than by its brevity.
It is always a pleasure to follow the noble Lord, Lord Campbell of Alloway, but it has not been invariable that I have been able to express so completely my agreement with what he said. Perhaps it is an "exceptional" circumstance!
After the wealth of experience and expertise which has been placed at the disposal of the Home Secretary in this debate, my excuse for adding my voice is a modest one. I have practised at the Bar for some 43 years, a proportion of that time being spent in the criminal courts. I have sat for the past 16 years as a Recorder. And perhaps most importantly for this purpose, for 26 years I was addressed from time to time by a fairly wide cross-section of the public in a deprived industrial area of the kind to which the noble and learned Lord the Lord Chief Justice referred. None of that, as I am sadly aware, is a guarantee of wisdom; but it provides a certain reservoir of information. If enforcing law and order is the declared purpose of the Bill, then those who were my constituents for those 26 years would applaud that purpose; and so do I.
In the interests of brevity, I propose to confine this intervention to one issue, although I do not give an undertaking to observe a similar reticence at subsequent stages. Pace my noble friend Lord Mishcon, I venture to contribute a word on the concept of prescribing a minimum sentence for a second or third offence of a specific category. As the noble Lord, Lord Carlisle, so clearly pointed out, we categorise offences according to certain selected characteristics of the incident, whatever the other characteristics it may have. I understand, as the noble Earl, Lord Russell, pointed out, that that may attract the filing clerk's approach, but it is inevitably the draftsman's approach.
We can define the characteristics in law of a domestic burglary, but they include no reference to whether the occupiers were terrified or whether they were absent from home; whether the offence was carefully planned by a team of professionals or the opportunistic discovery of an open window; whether it was accompanied by damage; whether the goods taken were pre-identified art treasures, or the much discussed bottle of milk; whether the offence committed on the premises was stealing at all; or whether the purpose was to remonstrate with a former partner but the thing went sour and it turned into criminal damage; whether the offender was a professional burglar or simply desperate for the next meal. None of these characteristics would be likely to amount to exceptional circumstances. With the greatest respect, which he knows I always accord him, to the noble Lord, Lord Renton, who is not in his place, if he thinks that stealing a bottle of milk is an exceptional circumstance, I suspect that he is in a minority among the lawyers in your Lordships' Chamber.

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Yet all these characteristics are relevant to what is a just sentence and a rational disposal of the case. It follows that if the court is precluded from taking them into account, then, as the noble and learned Lord the Lord Chief Justice so compellingly demonstrated, the sentence will not be a just one, and the disposal will not be rational. Is there then a case for an irrational disposal on the ground that that is what the public wants to see?
The community's reaction to crime was never wholly rational. In the earliest times, an important element was simply to strike out at whoever, or even whatever, was thought to be responsible for the misfortune. In the Book of Exodus, an ox responsible for a death was stoned; and in this country, as late as Bracton, a cart which ran over a man was burnt.
I hope that over the centuries reactions have become more reflective. There is a greater concern with what we are trying to achieve, but there is a strong element of simple indignation, of pure moral condemnation. And that is important. If we lose the connection between penal policy and a declaration of ethical principles as perceived by the public, then we lose an important part of the impetus to law and order. And that, as I understand it, is the essence of the Home Secretary's case.
It then follows that the courts, in sentencing, should pay some regard to public opinion. I hope the noble Earl, Lord Russell, will forgive me if I say that it may not always be possible to distinguish rigidly between ends and means; between what the public wants to achieve and how it sees a possible way of achieving it. The enforcement of law and order needs the co-operation of the public in assisting with crime prevention, in crime detection and in building up a climate of peer pressure in favour of legality. Criminals themselves, for the most part, recognise a distinction between getting their deserts and being themselves treated unjustly. But if the argument for these clauses is that the public expects tough sentences, irrespective of the justice of specific cases, we need to administer to ourselves two cautions.
First, I have never met a member of the public—and I suppose that that expression includes everyone—however tough on crime, who refused to agree that the public is best protected from offences if a criminal really is induced to renounce crime, and does not offend again. That is the optimum outcome in the public interest. If, on a specific occasion, that is likely to be achieved by a more lenient sentence—perhaps by a community disposal—then that is the best way to protect the victims of crime. The right reverend Prelate the Bishop of Oxford gave an example of the drug offender who, having now been discovered, may be anxious to kick the drug habit and, therefore, the motivation for subsequent crimes. Of course we cannot always predict the outcome accurately of a disposal of a case, but there is available to the courts a fund of expertise which we would be foolish to waste.
Secondly, an ill-informed public opinion is a loose cannon, because the public view may change if all the facts emerge. So often, public reaction to a sentence is
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based on a very selective account of the facts gleaned from the tabloid newspapers. If there is a public perception that judges are spineless wimps who do not have the guts to pass proper sentences, that can be dispelled by a closer acquaintance with the courts. The noble and learned Lord, Lord Ackner, cited the example mentioned on 23rd May by the noble and learned Lord, Lord Nolan, of the questionnaire sent out by Professor Zander at the time of the Runciman Commission.
I can add to that one anecdote. I recently heard of an occasion when members of the public who are not particularly familiar with the courts had a dialogue with some experienced magistrates. Since it was told to me in confidence, for good reasons, I cannot identify the occasion or those who participated. But at the outset, the members of the sample almost all expressed the view that the courts needed to deter crime by more draconian sentences. They then proceeded to consider a series of specific cases, of the kind that are used as exercises in judicial seminars, where judges are presented with a set of facts, including such mitigation as is available, and compare their reactions. In nearly every case, the members of the sample would have passed more lenient sentences than those which would have been passed by the experienced magistrates.
If a sentence is to reflect the public view of what a wrongdoer deserves, then that principle faces both ways. Public confidence in the penal system is at least as much at risk when an offender is perceived as having been treated unfairly—when the reaction was more draconian than the offender deserved. The criminal law depends on the support of the public against the criminal. If sometimes the criminal is seen as escaping the full measure of his deserts, that may diminish public confidence in the courts, which is regrettable, but it is not likely to diminish public support for law and order. But if the criminal is seen as a victim, if the sentence appears to be beyond his deserts, then public support may switch from the agents of law and order to the criminal himself.
When capital punishment is discussed, I am always reminded of the little girl who, on the morning of the execution, was heard to murmur, "Poor Dr. Crippen". And if the object is to reduce crime, and to make the offender less likely to reoffend, then causing the criminal to appear as the one who is wronged is about as counter-productive as you can get.
If penal policy is to serve as an affirmation of ethical standards, that cannot be applied selectively. Seeking to enforce justice by resorting to injustice is invoking Satan to cast out Satan. If the Home Secretary believes that that is what the public wishes to see, he really should meet more members of the public.
8.10 p.m.
Baroness Seccombe: My Lords, it is with humility that I rise to speak after so many distinguished speakers, but I believe that I have a duty to reflect the very real concerns of so many members of the public. I agree wholeheartedly with my noble friend Lady O'Cathain. Most of my friends are fearful of being out alone at night. So I am grateful for the opportunity to speak in

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support of the Bill. Regardless of one's standpoint, it is without doubt a landmark Bill, which will have a radical and, I believe, positive impact on criminal justice in this country. Indeed, I share the view of the president of the Chief Superintendents Association that it is in the national interest that this Bill becomes law.
At the forefront of our minds in this debate, and in others dealing with criminal justice matters, must be the need to ensure that the criminal justice system commands public confidence that justice is done and is seen to be done; that the guilty are convicted and the innocent acquitted.
Before I move on to some of the specifics of the Bill I ask your Lordships to visualise the chilling picture of a criminal justice system in which the public, particularly in inner cities and high crime areas, cease to have any faith; where people take the law into their own hands because they have given up on the ability of the police and the courts to catch and punish criminals. This is the vigilante society, which is anathema to the rule of law which I hold dear. We must always keep an eye on preventing this from happening and avoiding starting down that road. This Bill will ensure that we do not.
Speaking from my experience as a magistrate for 28 years, I can say that little dispirits members of the public more than when they see someone sentenced, let us say, to six months' imprisonment only to find him—usually him—out and about after three months or so. Obviously, it is even more disconcerting when someone is sentenced to four years' imprisonment for a much more serious offence and he or she is then out of prison after two years. It makes a mockery of the courts and the system.
Sentences served by offenders must reflect the sentence that the court has imposed. This Bill will change current procedure and put sentencing on a more honest footing. If a judge intends a criminal to spend two years in prison, under the proposed legislation he will give him a two-year sentence. The confusing features in the current system will be put right by the Bill's proposals. In future, everyone—the judiciary, the defendant and the public—will know where they stand.
I welcome also the clauses introducing minimum mandatory sentences for the worst offences. I do not believe that it is the case that they will encroach on judicial independence. It is for Parliament to set the statutory framework for sentencing and for the judges to exercise their discretion within that framework. Indeed, I believe that I heard the noble and learned Lord, Lord Woolf, say that on radio this morning.
Automatic minimum sentences already exist. Maximum and minimum sentences work on the same basic principles—both set the limits within which judges exercise their discretion. The message sent out to would-be criminals would be loud and clear. I have never known someone who comes before the court for drunk driving not knowing that they are going to be disqualified for at least a year.
The provision for an automatic life sentence for second time serious, violent and sexual offenders like repeat rapists or armed robbers, will be welcome added
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protection for the public from such dangerous offenders. Giving a life sentence to a rapist who has raped twice will ensure that he will never be released to rape again if the Parole Board, and those working with him, believe that he still poses a danger to the public. I join the police and the public in welcoming that clause.
Burglary is a particularly wicked crime especially where elderly people are the victims. Having been the victim of burglary, I understand what a horrendous problem it can be. For someone who is elderly and who may be living alone, then I believe that for them it is so traumatic that their whole life can be changed and they may never be able to live in their own house again. So I believe that the public are perfectly justified when they expect the police and the courts to take this crime very seriously.
This Bill will ensure that those burglars who offend again and again on three occasions or more are taken out of circulation for a minimum of three years. I believe that that is right. The fact is that if persistent burglars get little more than a derisory sentence—for example, statistics show a sentence of 19.4 months on a seventh conviction—then prison for them will become little more than an occupational hazard in an otherwise lucrative, even if dangerous, profession.
I also welcome other measures contained in the Bill, particularly the discretion it will give courts to extend disqualification from driving to non-vehicle related offences, and the proposal to extend electronic tagging to 10 to 15 year-old offenders. These measures will give the courts greater flexibility to deal effectively with a variety of crimes that are a menace to the public on a daily basis.
I welcome the Bill. It is in the national interest, as I have already said. I believe that it will make a difference over time to crime in this country. I believe that the Bill will go a long way towards achieving the goal of protecting the public and at the same time bolster the rule of law by strengthening public confidence in the system's ability to do justice and uphold the law. I commend the Bill to noble Lords and hope that they will support the aims of the Bill.
8.17 p.m.
Lord Hope of Craighead: My Lords, had it not been for the presence of Clause 1(6) of the Bill, which provides that,
"An offence committed in Scotland is a serious offence for the purposes of [the clause] if it is a qualifying offence for the purposes of
the Scottish Act, I would not have thought it appropriate for me, as a Scottish lawyer, to speak in this debate. Apart from Clause 38 dealing with the transfer of prisoners within the British islands, which I know from my own experience as a judge on the Scottish Bench to be a much needed reform and one which I welcome, and Clause 42, this is a Bill which, if enacted, will extend to England and Wales only.
Many noble and learned Lords and noble Lords with far more experience of English law than I have and a far better appreciation of the impact which these measures will have on the English system in all its

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respects have spoken and it would be presumptuous of me to add anything to their remarks. My own experience of the criminal law, both as an advocate and as a judge, was, until very recently, confined to Scotland which has its own system of law and procedures in these matters.
However, a number of difficult issues are raised by subsection (6) which will have practical significance for the operation of Clause 1 as a whole. Indeed, they affect the questions of principle which lie at the heart of the Bill. The fact is that the Border between England and Scotland remains open. People travel around the United Kingdom. The noble and learned Lord the Lord Advocate will know that only about 10 days ago many Welsh people were in Edinburgh not far from Murrayfield and no doubt, in a few days' time, many Scottish people will not be far from Twickenham. So these remarks are not made out of idle curiosity; they have some practical significance which must be of concern to anyone who seeks to make sense of the Bill.
Perhaps I may establish briefly my own credentials to speak in this debate, as other noble Lords have done. I should explain that for seven years until the end of last September I was the Lord Justice General for Scotland, which is the Scottish equivalent of the Lord Chief Justice. As part of my duties, I had the responsibility, as every Chief Justice in the United Kingdom has, of advising the Secretary of State on the penal element in sentences of life imprisonment. I also took a close interest in the workings of the Parole Board for Scotland and was therefore particularly interested in the detailed contribution of the noble Lord, Lord Belstead.
The purpose of Clause 1, the broad idea expressed within it, is, I understand, to deal with serious repeat crimes—the worst offences, as the noble Baroness, Lady Seccombe, has just said. There are therefore two factors which are crucial to the operation of the clause if a fair balance is to be struck between punishment—appropriate punishment, that is—which is the concern of the judge, and the need to protect the public, which is of particular and understandable concern to the Minister. Those factors are, first, the definition of what amounts to a serious offence and, secondly, the way in which the qualification under reference to exceptional circumstances, which others have mentioned, is to be interpreted.
I do not believe that it is possible for your Lordships to appreciate the full impact of Clause 1 without a proper understanding of the range of offences which are to be treated as serious offences for the purposes of the clause. The noble Baroness, Lady Young, addressed a very important question to the Minister when she said, "Please tell us what those serious offences are." Indeed, one must remember that the offences to which the question was directed include not only the offence for which the person is being sentenced, but also his previous offence which has qualified him for the life sentence. That is where the list of offences committed in Scotland becomes relevant to the Bill.
It should also be borne in mind that the examples commonly given by Ministers to justify this measure are almost invariably taken from the top end of the scale—the most violent or depraved examples of criminal
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conduct. There is no doubt that a life sentence may be appropriate at the top of the scale. Indeed, there is much force in the argument that the discretionary life sentence which is already available to, and used by, judges takes care of such cases. However, the point I would stress is simply this: if the margin at the top end of the scale is to be moved down to accommodate a wider range of offences, it becomes a matter of crucial importance to ensure that that margin is not set too low. To do that would undermine the impact of the life sentence in the minds of the public in those cases for which it was appropriate, as it would bring the whole system into disrepute. It would also have very serious consequences for all those who have to administer life sentences for the rest of the person's life, not to mention the individual on whom the sentence is passed.
It is against that background that I should like to draw three points to the Minister's attention, with particular reference to the inclusion of Scottish offences on the list. These matters will, I suggest, require careful study if the clause is to remain part of the Bill. I mention them in the full knowledge that this is a Second Reading debate and that the time is late. I do so in the hope that my observations may inform further debate when we come to consider the Bill in Committee.
The list of the offences is not to be found in this Bill but in the corresponding Bill for Scotland, the Crime and Punishment (Scotland) Bill. As I understand it, that Bill is still under consideration in another place. I hope very much that it will have reached your Lordships' House before the Committee stage of this Bill takes place so that your Lordships may have access to it when we come to examine this clause at that stage.
For the time being I can tell your Lordships—because I have a copy of the Scottish Bill with me—that the list of Scottish offences is already significantly wider than that in Clause 1 (5) of this Bill which lists the categories for England and Wales. As mentioned not long ago, eight offences are listed in subsection (5). The Scottish list already includes 10 categories of offences, three of which enter into areas of criminal activity which are not, I understand, covered anywhere in the English list. It includes sodomy and attempted sodomy; the broad offence of lewd, indecent or libidinous behaviour; and the unusual offence of clandestine injury to women. This is not the time to go into detail, but I should perhaps explain that clandestine injury to women is committed when a man has intercourse with a woman who is unconscious or asleep and that the offence of lewd conduct covers a very wide range of sexually deviant behaviour ranging from indecent exposure to the serious sexual abuse of children below the age of puberty. No one could suggest that those are not crimes which alarm and disturb the public.
The point to which I ask the Minister to direct her attention is this. If the theory to which Clause 1 is intended to give effect is that a second offence of the kind listed in subsection (5) justifies the imposition of a life sentence, how can it be right to impose the same sentence on someone whose first offence in Scotland was of a different kind from that on the list? If the list for Scotland had been directly comparable with the

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English list, assuming for the moment that that was possible—requiring no more than changes in wording, as often occurs in legislation relating to matters of procedure—there would have been no real difficulty. But the two lists are not directly comparable. This is due at least in part to the fact that most of the serious crimes known to the criminal law of Scotland are common law crimes. These are defined very widely and apply to a wide range of criminal conduct.
There has been a tendency in the preparation of the Scottish Bill—I must confess some responsibility as it resulted from some of my comments when the White Paper was discussed in Scotland—to extend the list in an attempt to include all kinds of conduct which might cause concern to the public and to make sense of the list. That echoes the point made by the noble and learned Lord, Lord Woolf, about creating a precedent. Here is a vehicle which can take on board more and more offences. The list may get wider still and, if devolution were to come about, it would then be for the Scottish Assembly to review the list in measures which would not come before your Lordships at all for scrutiny.
The inclusion of such a wide range of offences in the Scottish list is of concern for another reason—and this is my second point. In the Scottish Bill the corresponding clause is careful to provide—no doubt on the wise advice of the noble and learned Lord the Lord Advocate—that a conviction for a qualifying offence is only to be taken into account if it was obtained on indictment in the High Court. This, as I say, is a wise provision because many of the offences on the list may not be, on the facts of the case, very serious. So they are prosecuted in the sheriff court whose sentencing powers are more limited. But as I read the Bill no such provision has been included in the measure which is now before your Lordships. So, unless the clause is amended, we will have the very odd and, I think, highly unsatisfactory position that a conviction for a relatively minor offence of its kind in Scotland—which would not count as a first offence for the purpose of the imposition of a life sentence in a Scottish court because it was a conviction in the sheriff court—would have that effect in England and Wales, as the court in which the conviction was obtained is not a factor which is said to be relevant.
I should point out that it is in any event a matter of everyday experience in the Scottish courts that an offence which appeared to be appropriate for the High Court at the start of the case turns out, when the jury returns its verdict after listening to the evidence, to be less serious and more appropriate for a prosecution in the sheriff court. This is reflected by the terms in which a Scottish jury returns its verdict. A Scottish jury can delete passages from the narrative of the charge. The fact that the conviction was obtained in the High Court is no guarantee that the offence was, after all, a very serious one. But to insert such a qualification would go some way towards minimising the risk of injustice and serious distortion in the operation of this measure on each side of the Border.
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Lastly, I should like to touch briefly on the words "unless there are exceptional circumstances" to which other noble and learned Lords have drawn attention. I share the concern expressed about the effect of these words. But a particular question arises with regard to the cross-Border implications. I ask the Minister whether it is envisaged by the Government that these exceptional circumstances may include the circumstances of the first offence, in particular whether that offence was a serious offence of its kind. The question is important because the judge who is being asked to impose the life sentence will have the circumstances of the case before him but not the circumstances of the first offence. Alternatively, is it the intention that the judge should have regard only to the circumstances of the offender and not the nature of the offences which have qualified him for a sentence of life imprisonment? This is a matter of importance because in some areas of road traffic law it is now established that the seriousness of an offence is not a relevant factor. The Government's position on this issue is required to be made clear. Furthermore, if it is intended that the nature of the offences can be taken into account at that stage, what procedures are envisaged to enable the relevant information from Scotland to be put before the trial judge in England? Why have they not been stated or at least provided for in the Bill to ensure that that information is made available across the Border without delay when it is required?
I firmly believe that the cross-Border implications of this clause, in addition to the other points made in the debate, give rise to practical difficulty and also questions of principle. Whatever one may think about the broad policy, surely the wiser course would have been to study the implications much more carefully before the Bill was introduced. As it is, lists as long and as wide as those in these two Bills will almost certainly give rise to injustice and, sooner or later—after, 1 fear, much damage has been done—to demands that discretion in these matters should be returned to the judges who, after all is said and done, are best placed to see that a just and effective sentence is imposed in each case.
8.33 p.m.
Lord Taylor of Warwick: My Lords, a few months ago I was in the Crown Court defending a 23 year-old labourer who had pleaded guilty to a number of dwellinghouse burglaries. He said that his parents were in the iron and steel business: his mother ironed while his father stole. My instructions were to ask the judge for one last chance to avoid prison. I told my client that this time prison was likely because I had already asked for a last chance twice that year. I also happened to be appearing before the same judge who had dealt with the matter previously, so it was not my day.
My client asked anxiously whether I thought the judge would remember him and I replied that he probably would. I asked why he did it. He had a loyal girlfriend and a job and yet he kept getting into trouble. He looked at me sadly and said, "It is like this. I am too easily led by my socio-economic peer group". I said, "How do you know that?" With a big grin, he responded that his social worker had told him. That day he did

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go to prison. Ten minutes after the sentence had been imposed, I went to see him in the cells. He had already worked out his release date and knew that he would have to serve only half the sentence anyway.
I am afraid that that example is only too common in our courts. The general public are fed up with it, in my view. In particular they want protection from serious, dangerous and persistent criminals. They want to have greater confidence in the process, and that is what this Bill is all about. I support the Bill in principle, although I suspect that the Committee stage will be most fruitful and certain matters of detail may need to be addressed, especially in view of the comments made by distinguished members of the judiciary. In view of the excellent speeches made by both them and other noble and learned Lords earlier, I propose to be much shorter than I would otherwise have been.
The Home Secretary said in another place that there could be a number of exceptional circumstances in which judges could exercise discretion not to impose mandatory or minimum sentences. He gave only one example but a rather interesting one. He referred to the case where a defendant had helped the police to bring other serious criminals to justice. It may be a sad feature of our system but without the co-operation of so-called police informants fewer crimes would be solved. I am concerned about this particular matter. At present, a judge can reflect that factor by reducing the severity of his sentence without referring in open court to the fact that the defendant is a police informant, but the Bill proposes that the judge shall state in open court the exceptional circumstances for not imposing the sentence. Some defendants who have assisted, or may consider assisting, the police will be fearful of that fact being revealed in open court because of reprisals. I have no sympathy for these people; I do not plead their cause. But this may reduce the valuable sources of information which are available to the police. I should like the Minister to give this matter some thought.
It has been argued that criminals are deterred mainly by the thought of getting caught rather than the severity of the sentence. Crime detection and prevention are important. It is for that reason that the increase in police numbers, closed-circuit television cameras and the DNA database are welcome. But surely the persistent criminal will not be deterred if he believes that once caught he will receive only light punishment. One regular client joked that before a burglary he always took a bath so that he could make a clean getaway. He treated the whole matter as a joke. To him, a short prison sentence was really an occupational hazard, just like paying income tax. There is no doubt that the public want more criminals to be caught, but they also want more honesty in sentencing by which I mean that offenders are properly punished.
I am firmly in favour of the proposed mandatory life sentence for second time violent and sexual offenders. A couple of years ago I had the privilege of meeting a very brave and gracious lady: Jill Saward. You will recall that she was raped by two of the three men who burgled her father's Ealing vicarage in 1986. Her father and then boyfriend were beaten until they were barely
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alive. I listened with horror as she told me of some of the terror and trauma that she suffered years afterwards. I believe that the public viewed it as an insult that her attackers were sentenced to just three and five years' imprisonment each for the rape—less than for the burglary. The public, especially women in this regard, look for a signal that this kind of behaviour will not be tolerated.
These proposals do not amount to three strikes and you are out as in America. They are carefully targeted on serious, dangerous and persistent offenders. However, this Bill reflects the American intolerance to crime, and we should make no apology for it. There is no doubt that in America this strong approach to sentencing has reduced crime, and it would continue to do so here.
Critics of the idea that prison works should not ignore the latest reconviction rates which show that 51 per cent. of all prisoners reoffended within two years of being released compared with 55 per cent. of all those given community service orders. That points to the fact that the prison-works concept has some merit behind it.
Less media attention has been paid to the fact that the Bill will mean also an enormous reduction in custodial sentences for fine defaulters; discretion for courts to reveal the identity of young criminals; longer supervision of offenders after their release from prison; and new hospital orders for mentally ill offenders. I welcome all those proposals.
There is no doubt that the Bill has the support of the police and the public. All the broadsheet and tabloid newspapers back the proposals. That is interesting. We often deride the popular press for being simplistic and vulgar, but it is so often an accurate barometer of the nation's mood. I shall certainly keep taking the tabloids. I apologise for that joke, my Lords. We ignore public opinion at our peril.
The Bill is not about sentencing offenders such as the poor cleaning lady whom I once represented. With a large family and debts, she literally found that grime did not pay. She shoplifted on impulse. It was the first time she had done that. In her confused state, she managed to include among the four small items she stole a free sample. The Bill is not about that type of criminal. It is about protecting the public from dangerous and professional criminals.
The Bill is not the solution to the crime problem, but it could be part of it. Those who criticise it should come up with something better. They should not merely criticise it. We have to face the music even though we may not like the tune—that is, we need to take a tougher line for serious crime. The Bill hits the right note, and, in principle, I support it.
8.42 p.m.
The Earl of Mar and Kellie: My Lords, the noble Lord, Lord Taylor of Warwick, took a quick and friendly swipe at social workers. As a social worker from the criminal justice system, and someone who has worked as a prison social worker, a community service supervisor, probation supervisor, and a project worker on an intensive probation project, and, obviously the

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writer of many social background reports, I use that as an introduction to saying that I want to focus my remarks on clauses in Part III. Parts I and II have been well thumbed today, whereas Part III has been looked at by only a few, including the noble Lord, Lord Taylor of Warwick.
As regards Clause 31, I have no problem with the idea that fine defaulters be diverted away from prisons to community-based disposals. With up to 20 per cent. of the prison population consisting of non-payers of fines, for whom there was initially considered to be no need for imprisonment, that proposal clearly has some merit. My difficulty lies in the use of community service as a disposal in such circumstances.
Community service is an official alternative to custody. It is in danger of being trivialised if it is used for minor offenders who would not have qualified for imprisonment. Community service is a useful medium for restitution, and the reintegration of offenders into society. The working hours allow an environment for informal discussions about offending and reintegration issues, which is often more natural than may be found in a formal supervision session. I should prefer the use of attendance centre orders, as in Scotland, which would meet the needs of society and minor offenders who cannot or will not pay their fines.
There is an interesting proposal to use driving bans for non-payers of fines. I understand at what that is aimed, but I am worried that those driving bans will be ignored. They will be difficult to police. It means we could be generating a number of victims of people driving while uninsured. No doubt we will discuss that matter later in Committee.
The use of curfew orders or electronic tagging is proposed. Tagging is a form of part-time house arrest only. There is no input about offending issues or behaviour modifications. It is useful only as a head count, for the contractor running the scheme is unlikely to be equipped to do anything more. Its use for young people is especially deficient in that respect.
Among the many things needed by young offenders, one priority is an authoritative and sympathetic person to whom they can speak and relate. An electronic tag attached to a person with low self-esteem, itself the commonest background factor in offending behaviour, does nothing to correct that feature of poor self-esteem. It may even encourage the wretch to whom it is clamped to build up a notoriety and identity of ill repute which is counter productive.
I am arguing that if electronic tagging is to be used, it is appropriate only for those who are well-adjusted and who, in the words of the popular saying, have gone off the rails. To spell that out, they are well brought up chancers who know the score, or, to revert to the saying, know where the rails lead and can be nudged soundly back into decent behaviour. In the meantime, the inadequate offender, highly marginalised, needs greater care than electronic tagging can afford in order to begin to overcome his offending behaviour and sort out his usually chaotic life style.
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With regard to Clause 33, there is good sense in looking for an alternative non-custodial disposal for persistent petty offenders who have many fines to pay with questionable prospects of doing so. Their infuriating offences rarely merit custody, but they are likely to be imprisoned for non-payment of their fines. Imprisonment had been judged inappropriate initially, and so it is right to look for another non-custodial disposal. Fine defaulters take up a great deal of accommodation in prisons, stay only a short time and cause unnecessary administration and expense. Again, I wish to make a plea not to trivialise community service in that respect.
Finally, in Clause 34 we come to what I consider to be a most unreasonable development: the abolition of the need for the offender's consent to a community-based sentence. That contradicts all that I was brought up with. Almost all community sentences: probation orders, with or without special conditions, community service orders, attendance orders and future curfew orders have breach proceedings in court in the event of non-compliance.
For many years, probation was not considered to be a sentence because the offender could be returned to court on a breach and be repunished for the offence, usually by imprisonment. A probation order provides that the court accepts that the offender has committed the offence levelled against him; the offender has given his consent to the making of the probation order, recognising that he can be returned to court if he is in breach of the conditions of the order. That could be by non-compliance with the terms of the order or because he has committed a further offence. If he has not complied with the conditions of the probation order he can be resentenced for the offence. If he has committed a further offence he can be punished both for the new offence and for the original offence. I believe it to be unjust to award such a consequential type of disposal without the offender's consent.
Perhaps I may draw attention to the benefit of seeking consent when discussing a community sentence with an offender at the stage of the social background report; post-conviction but pre-sentence. The issue of consent allows a focus on the purpose of the community sentence in terms of compliance and of the possible personal benefit, development, rehabilitation and reintegration. Community sentence procedures are intrusive into the offender's life and are intended to be. That must be pointed out in advance. It is particularly true of probation orders, especially those with special extra conditions. Such intrusion is wholly voluntary or non-existent when paying a fine or serving a prison sentence. I hope that that issue and Clause 34 will attract the attention they deserve when the Bill arrives in Committee.
8.51 p.m.
Lord Dubs: My Lords, I wish to deal with the effect of the Bill on mentally disordered offenders. The issue was referred to in passing by the Minister and by the noble Lord, Lord Renton, but has not been subjected to scrutiny tonight. I should declare an interest at the outset. I am a non-executive director of Pathfinder

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Mental Health Trust in south London and through it have involvement with people in its medium-term secure unit.
Of course, we must be concerned about protecting the public but we must also seek to achieve the right balance between the needs of health treatment and the needs of the criminal justice system. Striking the right balance is not easy. We must also be aware that in our prisons today are a large number of individuals who are mentally disordered or mentally ill and have not been picked up by the system which led them to be there. That is of concern certainly to people who work in prisons because of the difficulty they have in dealing with such prisoners.
Perhaps I may first deal with one omission from the Bill. We need something more to help the courts to identify and assess mentally disordered people who come before them. In the other place an amendment was tabled which attempted to set up a psychiatric assessment scheme linked to the courts. Perhaps in Committee we can return to that proposal in order to try to help the courts to be better aware of the nature of mental disorder among convicted people.
I turn to the main points of the Bill and to the mentally disordered offenders who are clearly identified by the courts. Part II deals with the power of the courts in disposing of mentally disordered offenders. We have a new concept before us; it is a hybrid order, as described in the White Paper, which provides that the courts having imposed the sentence of imprisonment can link that to a hospital order. That means immediate admission to a mental illness hospital, which I presume is always a secure unit, for treatment.
The idea of the hybrid order stems from a Home Office and Department of Health working group which reported in 1994 under the chairmanship of Dr. John Reid. The report linked the hybrid order only to psychopathic disorders. The idea was that having been treated in hospital individuals would return to prison only if the treatment was inappropriate or had been refused. Therefore, the concept was more limited than that contained in the Bill, where the intention is much wider. It appears that disordered offenders should be returned to prison after a period of hospital treatment even if the treatment has been successful. Although it is not stated in the Bill, the Minister will have powers to extend the provision from psychopathic disorders to all disordered offenders. Then we should have the situation in which someone is sent to hospital, and is helped and treated but must then go to prison to complete the sentence imposed by the court. Those can be very wide powers if the Government choose to take them up, as the Bill would empower them to do.
That presents a difficult dilemma for those who are treating people in secure units in hospitals for the mentally ill. Let us suppose that a man receives a 10-year sentence, the first four years of which are spent in a secure unit in a hospital for the mentally ill. After four years the doctors judge that he has been treated and, in so far as one can say of mental illness, has been cured. Under the present situation that individual, having been cured, can be released, although it may be
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that the Home Office must approve such a release. However, under the Bill the hospital must either send the individual to prison or keep him in hospital occupying a bed. Sending an individual who has had four years' treatment for a mental condition back to prison might negate the benefits of the treatment. When the individual is eventually released after the sentence he may then be even more dangerous to the public than he would have been if he had been released from the secure unit after successful treatment and kept under some form of supervision.
There are a number of concerns, the first of which is a point of principle. How content can we be that a mentally ill person should be punished and imprisoned? I am not saying that the answer is always yes or no, but the problem is difficult. Should people who are mentally ill at the time of committing an offence be punished for it?
Secondly, the idea of continuity of care for mentally ill people, or for people who are mentally disordered, will not be possible if the first three or four years of the sentence are in a secure unit and the next four or five years are in a prison. It is difficult to envisage that the same type of care will continue from the secure unit in hospital into the prison system. There is a problem therefore about what will happen when the individual is released.
Thirdly, aftercare is essential in all such instances. If an individual has spent several years in a secure unit, then goes to prison and is then released it may well be that the prison is a long way from home and from the hospital at which he was treated. I wonder whether such an individual will be more dangerous to the public.
I have two further concerns. First, it may well be that a consequence of the provision is that more mentally disordered people will be in secure units in hospitals for the mentally ill. That will increase the cost to the health service and make life more difficult. There is already an enormous pressure on beds in such units. The hospital with which I am involved is always full and could take many more people if it had a few more beds.
I turn now to my last concern. Is it just possible that the courts might be tempted to use this hybrid order as what someone called "an easy option"? In other words, it may be said, "Well, that's a way of dealing with people. They will get some treatment in hospital and then they will serve the rest of their time in prison". Surely there is a danger that we might end up with more people in prison than under the present system. I suggest that that would not be protecting the public; it would simply mean more people in prison, even though those individuals were mentally disturbed at the time of the offence and when the sentence was imposed upon them.
In her opening speech, the Minister actually gave us some hope; indeed, I hope that she meant it. What we need is more discretion. We might simply have a system for dealing with such people which gives little or no discretion—for example, a person would get a 10-year sentence with, say, four years in hospital with the balance being served in prison. It would mean that there would be very little discretion other than that afforded to doctors. I noted the Minister's words carefully. She

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talked about an individual going from hospital to prison and used two words specifically; namely, "if appropriate". I am not sure what the source of that phrase is other than that the Minister said it. I do not know whether there is anything in the Bill, or in one of the mental health Acts linked to the Bill, which gives that discretion.
However, assuming that the position is clear, I should like to know a little more about how that decision, as regards the appropriateness of a transfer for a treated person from hospital to prison, would be taken. How would that appropriateness be judged, and how would that whole process work its way through? If we have more discretion in the way that it operates it is possible that the system will not be too bad. But, with a lack of discretion, I fear that we are embarking on a course which may not be a wise one.
9 p.m.
Lord Hacking: My Lords, 25 years ago when I first entered your Lordships' House—and I certainly did not expect to be here for more than a few years—I was a practising member of the Bar and regularly appeared on criminal matters before magistrates' courts, quarter sessions and assizes (as they were then called). Since then, I have remained in the law but I have concentrated on commercial matters; and, indeed, have become a solicitor of the Supreme Court. Therefore, in the circumstances, it seemed to me that I did not have the freshness of knowledge on criminal matters to make an early speech in the debate. In fact, I asked if I could be called later and am most grateful to the Whips' Office for agreeing to that proposition.
I thought that the correct approach was not to prepare a speech but to refresh my memory of the argument that was produced at that excellent debate to which I listened on 23rd May of last year, and to listen also to the argument being presented today in this House. Before I state where I have been persuaded and why, I should like to pay a particular tribute to my noble friend the Minister for the care and attention that she gave in her opening speech; for the fact that she is indeed carrying this as one of three major Bills through the House; and for the further fact that my noble friend has been present—as has the noble Lord, Lord McIntosh—throughout the debate and listened to every single speech.
Again, before I say where I stand on the issue, I should like to say that I respect the sincerity of the Home Secretary and of those who have supported the Bill in this House. I remember the Home Secretary some 35 years ago at the Cambridge Union. If my memory is right, and I am not letting any cats out of the bag, I recall that there was rather a Left-wing inclination in the Conservative Party in those days. I repeat that I entirely respect the sincerity of those who support the Bill, particularly my noble friend the Minister.
However, most regretfully, I have come to the conclusion that this is a bad Bill, addressing a very serious issue in the wrong way. Yes, crime is serious and yes, it is increasing. I live in South London with my family. All of us have been victims of crime during the
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past 10 years. I am sorry that my noble friend Lady O'Cathain is not now present in the Chamber. My wife walks back every night from St. Thomas' Hospital, under those dark arches of the railway. Yes, she has been chased by criminals and it is frightening for women. It is also rather frightening for men, too; I do not like being under those dark arches, either.
I have come to the conclusion that this is a bad Bill, addressing a serious problem in the wrong way for all the reasons that have been addressed to your Lordships by the noble and learned Lord the Lord Chief Justice, and others who have participated in the debate tonight. Therefore, I shall not repeat those arguments. However, I should like to underline the concerns raised by the noble Lord, Lord Dubs; concerns which are shared by the Royal College of Psychiatrists and the Law Society on the impact of the Bill upon those who are mentally ill.
The noble Lord, Lord Dubs, took us very carefully through his concerns. I believe that he was chiefly addressing the way that hospital direction orders will work under Clause 43. My noble friend Lord Renton also expressed concern about that clause. But perhaps I may go straight to the absolute basics. As I read Clauses 1 and 2, it seems to me that the mental disability of the accused will not be a matter that is taken into account. It follows from that that severely deluded and hallucinated people, suffering, for example, from schizophrenia or severe learning disabilities, will find themselves ab initio facing a mandatory prison sentence. I am glad to see the noble Lord, Lord McIntosh, nodding his head in agreement. That is a matter of great concern that has been expressed by the Royal College of Psychiatrists.
The question that your Lordships should be asking is: how did the Bill come to be here in this House in its present form? More directly, what have Her Majesty's Opposition been doing in another place to allow this Bill to come forward in its present form with some form of their qualified support? We know what Her Majesty's Opposition have been doing in this House. We well remember the speeches made on the debate of 23rd May last. I notified the noble Lord, Lord Williams, that I intended to quote from two paragraphs of his speech. Having criticised and also drawn to your Lordships' attention the view of the Select Committee on mandatory sentences, the noble Lord did something which I believe is always very helpful in your Lordships' House—he gave some personal examples. He said:
"I prosecuted a determined professional burglar whose life's income came from preying on others. He terrorised people in their own homes; tied them up with electric flex so that they almost died. He did it on a number of occasions. He was convicted on several occasions and was subject, rightly, to a harsh sentence indeed. Put the burglar at the opposite end of the scale—the rather dim youth who puts his hand through the open back window of domestic premises and takes a loaf or a bottle of milk and does it three times. Is he now to be the automatic recipient of a minimum, mandatory sentence? That is not just; it is a perversion of justice and one which, I am sorry to say, is brought about on the basis of low motive".—[Official Report, 23/5/96; col. 1031.]
He then went on to say (at col. 1032 of Hansard) in reference to pleas of guilty,

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"There is a virtue in pleas of guilty. It has nothing to do with the ignoble point that the time of the court is saved or that public expense is lessened. It is much more important than that. A plea of guilty is the public acceptance of moral responsibility for the harm done to the victim. In a very deep sense, it is the beginning of moral recompense for the victim who has been wounded. What inducement will there be for anyone properly to be advised to plead guilty if we have minimum mandatory sentences, imposed by diktat from the Home Office and not considered on a reflective, informed basis by someone who has heard the evidence?"
I shall not quote from the noble Baroness, Lady Mallalieu, who summed up; but I hope your Lordships will take it from me that the noble Baroness equally rejected mandatory sentences in as strong terms as those of the noble Lord, Lord Williams of Mostyn.
If that is right, I am troubled that the Bill should have arrived at your Lordships' House in its present form. Even if I displease the noble Lord, Lord McIntosh, by yelling, "Not-Content" when the Question on Second Reading is put to your Lordships at the end of this debate, I believe this Bill should never have come to your Lordships' House in its present form and should be sent back to the other place for it further to reflect upon it.
9.9 p.m.
Viscount Tenby: My Lords, I begin by declaring an interest both as a magistrate and as a member of the Magistrates Association. Whilst we share a common purpose and interest in most respects, I must stress that any views I express tonight are mine and mine alone.
The trouble with being a "tail ender", as noble Lords will know, is that most of the runs have already been scored, and, I might add, by better batsmen. However, there are parts of the outfield that have not yet been fully explored. The Minister, who has perhaps had more than her fair share of difficult tasks in the past 10 days, and who in my view deserves every word of the gallant tribute paid to her by the noble Lord, Lord Renton, may be relieved to hear that I do not intend to dwell tonight on the main concerns relating to sentencing in the higher courts. Indeed, I already feel rather like a skiff running for safety between two lines of men-of-war, with the broadsides of the judiciary to port and the massed canonry of the Government—and perhaps even part of the Opposition—to starboard. I hope that I have the geographical and political dispositions right in nautical terms.
I cannot, however, in general resist the temptation to make just one comment about the main concerns which have arisen as a result of the Bill. Anyone who has been involved in sentencing, in the lower courts no less than elsewhere, is aware that only those intimately concerned in a case can know the full details and all the many circumstances surrounding it. It is also true that no two cases are exactly similar in every detail. In other words, each should be treated on its own merits, and that particularly applies where sentencing is concerned, as the noble Lord, Lord Carlisle, said so graphically.
Having said that, it is undoubtedly the case that in supporting the Bill another place has been responding to the will of the people in this country, however
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ill-informed that opinion may be in the eyes of the judiciary and others. What exactly has caused this upsurge of feeling must be a matter of conjecture and will to a large extent depend on the political ground on which one stands. A greatly increased crime rate, sensational media treatment, personal experience of crime, the liberal policies of the 1970s and 1980s, all have their advocates. However, I suggest that the one thing we cannot afford to do in a democracy—after all, it is a democracy, is it not?—is to ignore this genuine feeling with an irritated frown or a helpless shrug of the shoulders. Therefore we must look again and again to check whether we have it right, and we should perhaps ask ourselves whether we need to educate more and communicate better. I suggest that this is a critical area.
As a magistrate, my main concerns lie inevitably in those sections of the Bill relating to the lower courts. In this context I feel I should congratulate the Government on the initiatives they are proposing to reduce the number of offenders committed to prison for wilful refusal to settle fines. This has long been a preoccupation of mine. Indeed I recall that I made my maiden speech on the subject of alternatives to custodial sentencing many years ago in a debate initiated by my noble friend Lord Allen of Abbeydale, whose experience and wisdom in this field are rightly acknowledged by all as second to none. Since then, we have frequently returned to the topic. I have always been mildly irritated—that is all one is allowed to be in this House, mildly anything—by speakers who have understandably railed against such imprisonments without offering any practical suggestions as alternatives.
The brutal truth is that in the sophisticated game of parting an offender from his or her money, there must always be an ultimate sanction available to a court, otherwise the debt to society remains unpaid and a fines system which accounts for, I believe, some 80 per cent. of all disposals in the lower courts, becomes discredited.
Two proposals are being made now which, wisely in my view, will be tried out in pilot schemes before full implementation. First, the use of disqualification from driving for an offence not necessarily related to motoring itself, for example, non-payment of fines, is an imaginative leap which nevertheless poses a number of problems both in terms of administration as well as in questions of judicial fairness. But if those are recognised and faced at an early stage, there is no reason why this should not be a useful addition to the disposals available to magistrates even though I suspect that the sanction may be used sparingly at first, and rightly so.
Sentencers are aware that for many the use of a car may be the difference between having and not having employment. Further, any measure which dramatically increases the number of disqualified drivers will inevitably increase the number of those who deliberately choose to drive illegally while disqualified, with all that that entails for all those unfortunate enough to suffer from such recklessness. In addition to these important considerations, there must be severe administrative consequences for the police, the courts and by no means least, the DVLA at Swansea. Persistent traffic offenders who are disqualified may well be known to the local

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police. The new category, disqualified for unrelated offences, will be more difficult to target and that difficulty will be compounded if, for example, a fine defaulter suddenly acquires the means to discharge his debt and, therefore, presumably becomes eligible to have his or her licence returned to him or her. It may be appropriate in such cases for the licence to be kept not in Swansea but at the relevant court. One must also add that for the hardened criminal, the prospect of driving while disqualified will be like water off a lag's back.
However, if the new proposals are used with care and sensitivity, and the administrative machinery is capable of coping with what will assuredly be a greatly increased workload, then we look forward to seeing what the early returns show.
The other proposal in relation to sentencing concerns the introduction of community service orders for a lesser range of offences, including again fines, and on this I congratulate the Government warmly on producing something which at long last may provide the answer to all our concerns about inappropriate custodial sentencing. I am sorry to part company with the noble Earl, Lord Mar and Kellie, but, unlike him, I say to this proposal, "Alleluia". I would, however, voice two concerns. At present a community service order is a serious disposal—to use the court formula, "serious enough". I believe, accordingly, that the new orders for lesser offences, if only to prevent confusion and not to debase the coinage of the original community service orders, should be called something else. The term "work orders" has been suggested. There is, too, the example of Scotland which has supervised attendance orders. Why does Scotland always seem to be ahead of us on these matters? I can understand why it wants independence.
My other point which does not so far appear to have been addressed by the Government is that the measure will inevitably require considerable additional resources, in particular in manpower. I suggest that it is such an important initiative that it is essential that it does not go off at half cock because of inadequate funding. I would welcome the Minister's assurance that adequate resources will be made available. If the experiment fails through lack of cash, we shall have learned nothing and perhaps be wrongly put off going down this road for years to come.
Finally, despite the widespread criticism which will undoubtedly emerge from some quarters regarding the proposal to give discretion where it is deemed appropriate for courts to name certain juvenile offenders, I say only that many will feel that, providing the freedom is not abused, such a step is long overdue.
This is an important Bill which may or may not see the light of day. However, whatever its fate, it covers much new and hotly disputed ground and it seems inconceivable that we can ever return to the status quo, as some would like. As I hope that I have indicated, I believe it to be a curate's egg of a Bill with clauses to condemn and to applaud. Let us hope that as a result of our deliberations we can make the administration and execution of justice better in this country and that by our persuasion and logic we can ultimately carry the country with us.
9.20 p.m.
Baroness Anelay of St. Johns: My Lords, today we have heard from a legion of lawyers—or, in the context of their contributions to the debate, perhaps I should call them a battery—and there are yet more to come. I stand here, however, as a member of a larger legion of sentencers. Like the previous speaker, I am a magistrate, one of over 30, 000 volunteers who dispose of over 95 per cent. of criminal cases in this country. I feel emboldened to speak having heard my noble and learned friend the Lord Chancellor encourage the noble Lord, Lord McIntosh of Haringey, last Friday morning to continue with his Opposition stewardship of the stalking Bill and not surrender it into the hands of a lawyer. He argued that the layman's view can be useful and effective in debates affecting the law and the legal profession. I wholeheartedly agree.
I also feel a duty to speak on behalf of an even larger group of people: the victims and potential victims of crime. Sentencing is a complex and often difficult task even for those of us who dispose of less serious matters. Courts should never be expected to exercise their sentencing powers with one eye on the hovering hand of the tabloid journalist, even if that journalist is my noble friend Lord Tebbit. But they must never disregard public opinion itself. They should recognise that sentencing practice may need to be changed to reflect the public's desire to show their disapproval of specific criminal activities and to live their lives free from the threat of such crimes.
Today, the public believe that, too often, courts impose sentences which fail to match the gravity of the crimes committed. I therefore welcome the extension of mandatory life sentences to those new categories of offences listed in Clause 1 of the Bill. Prison is the only suitable punishment for the most persistent and dangerous criminals, and certainly the only way of making sure that the public get the protection that they deserve.
Many noble Lords spoke about Clause 1. I wish to refer to just one part of it, subsection (5)(d), which would bring within the scope of the mandatory life sentence,
"an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent)".
Over the past months, opponents of the Bill have sometimes used Clause l(5)(d) as evidence that the extension of mandatory life sentences to new categories of offence is flawed. They have argued that this is an offence which can occur in the heat of the moment—typified perhaps by a "glassing" in a pub. They say that the Bill takes that offence into a new category of seriousness by making it a qualifying offence for an automatic life sentence upon a second conviction.
But they are wrong. If someone becomes embroiled in a violent attack in the heat of the moment without having a specific intent to cause grievous bodily injury, then that person would be charged under Section 20 with the lesser offence of unlawful wounding or unlawfully inflicting grievous bodily harm.

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For the offender to come within the provisions of Clause l(5)(d) of the Bill, the jury must be satisfied that the offender is not only guilty of deliberately causing serious bodily injury, but had the specific intention to do it.
When we talk about offences of this nature, we are dealing with injuries from which it is often a matter of luck that the victim did not die as a consequence. If that sounds too melodramatic, then let us consider the case of the pub brawl referred to in passing earlier in the debate, the glassing where the element of intent has been proved. The victim is in a position where he or she is at the receiving end of an assault with broken glass. I suggest that most people cannot insert a broken glass with absolute precision into someone's face or neck so as to avoid the main arteries. So if somebody is convicted of that type of offence for a second time, it is surely at least an indication that that person is a danger to the public and should not be released until the relevant authorities are satisfied that the person no longer represents a danger to the public.
After all, if the victim were to be unlucky and die from those injuries, the intention to do grievous bodily harm is sufficient to found a conviction for murder. Therefore, we are dealing with really serious criminal activity from which the public requires and deserves protection.
Of course, I appreciate that no two cases are exactly the same. But judges can reflect that by their use of the tariff or even perhaps by the application—dare I use the phrase after what has been said today?—of the "exceptional circumstances" provision. Therefore, I can see no valid reason why a second conviction for this category of offence should not be subject to a mandatory life sentence.
Public debate and debate in this House has concentrated on the question of mandatory life sentences in a way that has almost obscured discussion about those measures in Part III of the Bill which make innovative use of non-custodial sentences and seek to extend them to circumstances where imprisonment is no longer considered the appropriate penalty. I am disappointed that more attention has not been focused on those measures.
Speaking as a magistrate—and I also declare an interest as a member of the Magistrates' Association—but mainly as an individual, I am grateful to the noble Viscount, Lord Tenby, for his lucid arguments about the measures in Part III. I welcome measures which will give courts the opportunity to avoid the need to impose prison sentences for non-payment of fines. But here I shall take a leaf out of the book of the noble Lord, Lord Mishcon, as he read it earlier this evening, and say that because the matters in Part III have been so ably covered by the noble Viscount, Lord Tenby, I shall not repeat all that at this late hour, save to say—those dreadful words—that I welcome the intention to introduce a pilot scheme to test the proposal to give magistrates the discretion to impose a disqualification order as a measure to enforce the payment of a fine.
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As someone who has been involved in pilot schemes, I ask the Minister to ensure that this pilot scheme is as straightforward in its operation as possible so that its effectiveness is not compromised.
I support the principles of the Bill and look forward to a lively and fruitful time in Committee.
9.27 p.m.
Lord Thomas of Gresford: My Lords, some years ago I prosecuted two men who attacked an off-duty doorman, a bouncer, at a party. He was rendered unconscious. He never came round or recovered and 14 days later he died of pneumonia. It was not possible to link his fatal illness with the attack that had been made upon him. As a result, the two men were prosecuted under Section 18 of the Offences Against the Person Act 1861 and were duly convicted. The High Court judge who tried the case then sentenced them. He made it clear that he was not sentencing them on the basis that they had killed the deceased, that they were responsible for his death, and he passed a suspended sentence of imprisonment. The furore that then broke out in the public gallery of that court is something I shall never forget because the relatives of the deceased were utterly incensed. The two men, who were still in the dock, were triumphant and challenged the family to meet them that night so that a fight could take place.
It was at that moment that I realised the force behind the sentiment expressed earlier today by my noble friend Lord Russell when he said that the basic force behind the criminal justice system is to prevent private vengeance. When something like that happens and a completely inadequate sentence of imprisonment is passed, private vengeance is not assuaged. It is an act of trust for a victim and for a victim's family to subsume their anger and their sense of vengeance. For them to do that requires public confidence, their confidence in the criminal justice system. The criminal justice system must deliver justice and fairness for the state, the victim and family and, indeed, for the accused.
A moment ago the noble Baroness, Lady Anelay of St. Johns, talked about her concern for the victims. I can assure her that we on these Benches share that concern. It is a pity that the Home Secretary, Mr. Howard, did not share that concern when he revamped the Criminal Injuries Compensation Scheme so as to reduce compensation for victims of violent crime.
Let me deal first with the concept of honesty in sentencing. The Minister said that everyone should know what the sentence means. The sentence should be transparent. But her proposals, as set out in Clause 1 (2) state:
"The court shall impose a life sentence, that is to say—… where the person is 21 or over, a sentence of imprisonment for life".
Everybody should know what the sentence means. We all know that those words do not mean what they say. As the noble and learned Lord, Lord Ackner, pointed out, that is completely misleading for the public, who should have confidence that they can understand the sentence that has been passed.

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When the Home Secretary sloganises his half-time sentences for full-time crime, again, as the noble and learned Lord, Lord Ackner, pointed out, it would suggest or imply that a person sentenced to four years' imprisonment will serve four years. But we know that that is not the case either. So the suggestion that the Bill will promote honesty in sentencing is defeated by the very words of the Bill. It is a charter for dishonesty in sentencing.
As the noble and learned Lord, Lord Woolf, pointed out, it will lead to plea bargaining, the transfer of the discretion from the judge elsewhere, as the noble and learned Lord the Lord Chief Justice put it. From personal experience I can tell your Lordships that I know what will happen when the situation arises that a person faces a mandatory life sentence. The CPS will say, "We do not have the resources to fight this case. It is open and shut but we do not want to spend money. We will take a conviction for a lesser offence." The prosecutor will be happy because he will have the certainty of the conviction; the defendant will be happy because he will avoid the mandatory life sentence; and as for the judge, he will have cleared his lists. But what is vital and important is that the public and the victim will not know what has gone on and why that more serious offence has been reduced—to save money and to avoid the consequences of mandatory sentences of that type.
The role of the judge in sentencing is crucial. I was disappointed to hear the noble Lord, Lord Tebbit, describe how, in his view, confidence needed to be restored in the judicial system. He felt that judges who criticised anything that was advanced by the Government in this field had entered into the political field and that people were confused by sentencing policy.
Lord Tebbit: My Lords, I am grateful to the noble Lord for giving way. If he thought that is what I meant, he was quite wrong. Of course, I welcomed the contributions to the debate today from the Law Lords. But what I said was that I felt that it was not helpful to the respect for the judiciary that so many members of the judiciary today seem to have followed the example of Mr. Justice Pickles and found themselves unable to resist getting on the radio and in the tabloid press with their comments about these matters, which I thought were much better discussed in this forum.
Lord Thomas of Gresford: My Lords, I cannot recall any judge other than Judge Pickles taking to the television, radio or the popular press to describe why he passed a specific sentence. I have no recollection of that. If the noble Lord, Lord Tebbit, has, no doubt he will tell me about it later.
I was even more surprised to hear from the noble Lord, Lord McIntosh, about the inadequate Court of Appeal guidelines and enormous differences in sentencing and from the noble Lord, Lord Renton, about the differences between the tough and the more liberal judges—he was referring to his experiences of some 25 years ago. The fact of the matter is that over the past 10 or 20 years considerable efforts have been put into
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judicial training to ensure consistency of sentencing and that the right sentences are passed throughout the country.
The attack upon the judiciary made by the noble Lord, Lord Tebbit, reminded me of what I hope may be my family motto: "Who can we blame?" It is easy to attack the judges in order to draw attention away from what we on these Benches consider to be the failure of government policy in this field over many years—varying policy at that. But perhaps the noble Lord, Lord Williams of Mostyn, can confirm that at a sentencing conference some five or more years ago we were addressed by a senior judge who told us, in a typical fashion, "Now listen, boys"—of course there were no female judges present on that occasion—"you have heard that the Home Office wants to send people to prison for shorter periods because they have not got the prison space. Do not pay any heed to that. If you think they should go to prison, you send them to prison and let the Home Office find places for them". That was not a long time ago, and that was the attitude we were told by the Home Office to adopt towards sentencing in those days. Now we are told something completely different.
It was fairly typical that the Minister referred to persistent offenders and to percentages and statistics in relation to offenders; but never to people, never to persons, never to those who actually become involved in crime. It is rather like a bad speech in mitigation when one wraps the person up as though he were a parcel and presents him to the judge for posting to whatever prison he thinks is right. Effective mitigation in a criminal case is to present the offender as a living and breathing person with problems that need to be addressed. The deeply mistaken and alarming attitude of this Government is to treat people convicted of crime as though they were a separate species of being in some way apart from the human race in general and the citizens of this country in particular.
The causes of crime are complex but those causes are part and parcel of the society in which we live; a society fashioned and moulded by government. Poor education, bad housing and unemployment produce inadequate and damaged people. Their problems are compounded by a selfish and acquisitive culture to the creation of which we are all party. Policies which fracture and fissure that society and deny the existence of a community inevitably lead to crime.
The first responsibility of government is to protect the public. In dealing with young offenders every effort is made to help them with non-custodial sentences, probation orders and support of all kinds. All of us who are involved in the sentencing process try to give young offenders the benefit of a chance in life. But there comes a point when a judge has to say to young people, "Well, it is tough. Whatever your background, whatever the reason for your offending, society cannot function if you attack it in this way". Prison follows. But the responsibility of government does not end with the clang of the prison door. Government must recognise not only their responsibilities to the victims of crime and to the

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potential victims of crime, but also to the convicted criminal. He does not forfeit his citizenship by being convicted of crime.
Two public interests strongly complement each other: first, the interest of the public in the rehabilitation of the prisoner to prevent reoffending; and, secondly, the interest of the prisoner himself in receiving the support and training which will enable him to cope with the problems of living outside prison and of playing a useful part in society. The greatest assistance to stability, we find from experience, and to good citizenship are a home, a family and a job.
Those who spend their lives in the processes of criminal justice, whether as lawyers or judges, understand these responsibilities and the balancing process between competing public interests. Daily contact with the detailed circumstances of the crimes that come for punishment provides a wealth of experience in assessing the seriousness of the particular crime—assessing its aggravating features and giving weight to mitigating circumstances—and from that a balanced judgment can be formed. I have taken some time to try to set out the basis of the independence of the judiciary and why it is charged in our constitution with this task of balancing competing interests. That responsibility and position is attacked by the Bill before the House.
Perhaps I may say a few words about various aspects of the Bill. There will necessarily be times when a mandatory life sentence is unjust. A judge will pass a sentence which he knows is wrong. It is quite interesting that in the course of the debate certain of the speakers from the Government side clearly have not understood the provisions of the Bill. The noble Baroness, Lady Young, said that the Bill is not designed for simple burglaries and that it is aimed at much more serious crime. The noble Lord, Lord Tebbit, said that the drug provisions of the Bill were not intended to catch the young offender who sells a small amount of Ecstasy or a small amount of a Class A drug. The noble Lord, Lord Renton, thought that because the goods taken in a burglary might be so insignificant that would be an exceptional circumstance which would mean that a mandatory sentence was not required. However, that is not what the Bill says. The noble Baroness, Lady Young, should realise that it is not two rapes that are concerned; two serious criminal convictions will bring the mandatory life sentence into effect.
Baroness Young: My Lords, as my remarks have been questioned, perhaps I may say to the noble Lord that while I do not pretend to be a lawyer I find it difficult to believe that, in the case that has been quoted on several occasions of someone stealing a pint of milk off the doorstep, the police would bring a prosecution, let alone that the whole matter would come to court. If that is the case there is something seriously wrong with the criminal justice system. Constantly quoting something does not help the argument against the Bill.
Lord Thomas of Gresford: My Lords, I am most grateful to the noble Baroness because she makes my
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case for me. There are circumstances where in the interests of justice a mandatory sentence should not be passed. I have been involved in cases on indictment where a client has been convicted of the theft of a whisky glass—and an empty whisky glass at that—worth half a crown. It should not be imagined that, where burglary is involved, the criminal justice system does not prosecute simply because the material that is taken is not valuable or expensive.
We on these Benches consider that the provisions for mandatory life sentences are dangerous. They are dangerous for the reasons given by the noble and learned Lord, Lord Donaldson of Lymington. It is undoubtedly the case that a woman who is raped and who is the sole witness of the offence that has been committed on her is in danger if the mandatory life sentence were to be imposed on the offender. What possible motive can he have for allowing her to go free to identify him at a later stage? Unfortunately, we are familiar with cases of that sort taking place. These provisions are self-defeating because nobody facing a mandatory life sentence is going to plead guilty—that is to say, the whole system will be clogged up by cases of that sort. Finally, it will be expensive, for the reasons which have been urged before your Lordships such as the increase in the prison population and the diversion of resources for that purpose.
Perhaps I may say a word about the hybrid sentence as regards mentally ill offenders. The provisions contained in those clauses dealing with that aspect of the matter put the psychiatrist in an invidious position. Your Lordships will recall that the suggestion is that there should be a hospital order coupled with a sentence of imprisonment. That would leave the psychiatrist in the position of a gaoler who determines when and at what point his patient, who may have been cured of the illness from which he suffered, is sent to prison. The effect on the relationship between the psychiatrist and the person he is treating can be imagined.
It has been said by the noble Lords, Lord Hacking, Lord Carlisle of Bucklow and Lord Belstead, all of whom speak from the Government Benches, that this is a bad Bill. What is the point that links the noble Lords? They understand and have hands-on experience of the criminal justice system. That is the link and that is why noble Lords on the Government side are opposed to this Bill and describe it in the terms that they do. We shall be putting down amendments. We shall fight this Bill all the way through. We shall also echo the noble Lord, Lord Hacking, in asking what has the Labour Opposition been doing. We hope that the noble Lord, Lord Williams of Mostyn, will maintain the position that he adopted in the earlier debate that we have heard about.
Noble Lords: Hear, hear!
Lord Thomas of Gresford: As I know only too well, it is not in his character ever to change his mind about anything. I am sure that the noble Lord will join us. We oppose this Bill.
9.48 p.m.
Lord Williams of Mostyn: My Lords, unjust sentences are a blight on any judicial system. An unjust sentence is one that offers unjustifiable leniency. That leaves the cry of the victim unheard; it leaves the grief of relatives and friends unconsoled; and in some cases it adds the insult of apparent judicial indifference to the grievous wound of crime.
I have spoken for, and written in support of, Victim Support for many years and would respectfully suggest that I require no lessons about that. An unjust sentence is also one which allows and recognises no difference in cases and therefore sentences between one crime, one criminal, and another. Putting a tick in a box is no way to sentence in crime. Life is not that simple, and neither is crime.
I am going to take a citation from one noble and learned Lord present this evening who is the object of our affection and regard. He said:
"It cannot be right for sentence to be passed without regard to the gravity, frequency, consequence or other circumstances of the offending."
I add my gloss. I take "circumstances of the offending" to mean of the offence and the offender in question. The words are those of the noble and learned Lord, Lord Taylor of Gosforth.
Recidivism in this country is a grievous social blot. We have a recidivist government with 34 crime Bills since 1979, the last one in 1991, brought into effect in 1992—a great scheme to improve criminal justice, carefully thought out, laboriously considered and put into effect under the aegis of the noble Lord, Lord Carlisle—all thrown away. We have a recidivist Home Secretary. He will keep on doing it all over the place. He has had probation. He has had community service. I just do not know what to do with the man. I suppose that he should be subject to a curfew until after the next election or possibly there should be a mandatory five-year sentence for anyone who stands on a populist platform and tub-thumps for two consecutive Conservative Party conferences—without any exceptional circumstances.
The executive and Parliament have a legitimate interest in sentencing policy and practice. Neither has specific direct expertise. Both have a duty to listen to public opinion. I am not one of those who despises public opinion; nor do I despise any section of the press. Two curious bedfellows led to your Lordships' noble vote last week—curiously, the judiciary and all sectors of the public press. The public are entitled to have information even if your Lordships and I do not necessarily recognise it as conforming with either our prejudices or our opinions. I submit that the purpose in our constitution that Parliament ought to perform in this area is that it has the right to set indications—an indicative pattern of what sentences ought to be.
The objection to the present Bill in Clauses 1, 2 and 3 is not, in my mind, the absolute conceptual objection to minimum sentences. The objection is that they should be mandatory save in exceptional circumstances. The Government contend for a narrow definition of "exceptional circumstances". The Minister was most
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careful and precise when she said that "exceptional circumstances" could comprise two circumstances, the first being "very unusual" at the very least. The noble Baroness went on to emphasise that the mandatory sentence would be a matter of course in the generality of cases. On an earlier occasion I believe that it was the noble and learned Lord the Lord Chancellor who said that "exceptional circumstances" would mean occasional, quite unforeseeable circumstances.
If that is the description of the parameters within which judges have to operate, judges will have to do one of two things. They will have to be unfaithful to their oath or they will have to elide the instructions which Parliament gives them in statute. It is very important to remember that point. Contrary to the generally held view when I started at the Bar, judges do not spring perfectly formed as creatures of the Almighty. They are capable of error, just as the rest of us are. Quite often judges admit error rather more gracefully and rather more frequently than full-time politicians, of whom I am grateful to say that I am not one.
My objection to what is being forced upon the country and the judges is that the mechanism is too crude, brutalist and mechanical and does not deal with cases on an individual basis. I entirely agree with the noble Lord, Lord Campbell of Alloway. Therefore, the true remedy is to see what improvements can be made by way of retaining a reasonable judicial discretion within the framework that I describe and accept as the indicative pattern which Parliament is entitled to set down in statute.
I turn to the Young-Tebbit axis. I am pleased that both the noble Baroness and the noble Lord are here. I believe in principle that in many ways my approach is similar to theirs. One of us must go! I favour severe sentences in grave cases: terrorism; deliberate offences of violence; mindless violence in public places; financial fraud (although my eyes must be rather feeble because I do not see a reference to financial fraud in the Bill); offences against children and old people; and domestic burglaries that terrorise people in their homes, which I accept leave people's lives in ashes. Not all domestic burglaries do that. I have suffered a domestic burglary. Burglars entered my garage and took away two lawn mowers. Fortunately, they did not notice the rather more valuable wine at the back of the garage. I was irritated but not mortified. I was not in the position of the old lady who is driven from her home and can never go back because it has been desecrated. The two crimes are different in quality.
When the noble Baroness and the noble Lord raise such questions, I share their detestation of what is normally referred to as domestic burglaries as do all of the judges whom I have ever encountered. The truth is that a domestic burglary of the kind that we are discussing is not to be simplistically described or viewed as a crime against property. In essence, it is a crime against the person and a crime from which the person may never recover. We have no problem at all about the imposition of severe sentences on people who commit such crimes; nor does any preceding speaker in your Lordships' House.

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The professional drug dealer is not fit to live in our society for a very long period of time. The noble Baroness put forward the proposition, with which I entirely agree, that virtually every parent of a teenage child is deeply worried about drugs. There is not a single parent in this House or outside it who does not share that, but is there a single parent who wants his or her child of 18, who perhaps is going through a bad phase of addiction and deals in £10 or £15 worth of a Class A drug, to go to prison on an automatic basis for seven years? I rather think not.
To appeal to the public has its virtues, but a populist engine which drives ill-considered legislation has no sensible place in a decent society. We want to aim at something which offers long-term protection. Long-term protection can involve long prison sentences, but I believe every judge and practitioner agrees that many people accommodate themselves to the prison regime because they are subtle enough to do so. Paedophiles are quite happy in prison if they have the company of their friends. They hand round exhibits in cases. (Incidentally, it will be recalled that I moved an amendment to make that unlawful and the Government rejected it.) The professional drug dealer settles down in prison. He has his own small fiefdom. When he comes out he is an extremely dangerous man.
We need to consider these matters with great care. We have more than one weapon with which to fight crime. No government, present or immediately prospective, will have all the right answers, but we need to adopt care in what we do. Care is missing from the structure of the Bill.
The sentencing regime for which we contend should, as many noble Lords have said, be open and transparent; but it is nonsensical to invite a High Court judge to say, "I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months". That is a perversion of the system. It will bring the whole system into disrepute. If it brings it into disrepute on that basis, it will have brought it rightly into disrepute on that basis.
It is said that no one will serve more real time—to use the rather tedious jargon. A woman at present often feels that a six-year sentence for rape is insufficient to mark the dreadful wound and the dreadful wrong done to her. We know from the Home Office, we know from the Bill, that that six-year sentence—about the minimum one would expect in rape—will have to go down to four years. I am glad that it will not be me who has to explain that to the complainant in question.
We have to look at these things with some care. Manslaughter is an offence which covers an enormously wide spectrum—the single blow outside the public house, the man falls on the pavement, and dies. On the other hand, one can have month after month after month of the cruellest treatment of a child who then dies. They are both manslaughter. They are utterly different in quality and nature, and they should be different in the penalty which they attract.
That leaves outside the questions touched on earlier by those who well know these matters, not least the judges. It leaves out the question of diminished
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responsibility and provocation, or corporate manslaughter at work. All those things fall within the one descriptive category of manslaughter.
There is nothing in Clause 1 which deals with the persistent paedophile. Nothing! If the defendant has preyed on children for years, and commits offence after offence after offence, so long as it is not within the category of having sexual intercourse with a girl under 13—very often they are not—then this will not catch that man. There is something deeply wrong about those proposals. They attempt to meet public disquiet, and they will not be able to perform that function.
There is the question of the assessments for these new bases of release. The noble Lord, Lord Belstead, said—who knows better than he?—that that will involve 25, 000 assessments per year. There are not the resources or expertise to carry that out.
My noble friend Lord McIntosh of Haringey rightly pointed out that he is alert and astute to the worries and fears mentioned by the noble Baroness, Lady O'Cathain, about women being afraid to go out at night. I agree. No proper society can tolerate that. But one of the things that people out and about on their reasonable occasions at night fear is street crime and mugging. My noble friend Lord McIntosh of Haringey perceptively and rightly pointed out that they are not covered by the Bill.
I shall not be long, because we are coming to the end of a long evening. But one of the things we need to do is to ask ourselves what is the prime function of a government in this connection. It is not the prime function of a government merely to try to get re-elected on any basis whatsoever. It is the function of a government—this has been a failed function for this Government over the past many years—to provide a calm and orderly life for their citizens so far as they may. That means that crime is discouraged and prevented; that crime is detected; that criminals are convicted. That is not happening.
The conviction rate in rape has been dropping substantially these past few years. Criminals must be rightly sentenced and properly dealt with in prison. It is a dereliction of duty to put people in prison for a long time without at least making an effort as regards education, rehabilitation and training in skills for possible employment, although that is difficult enough.
A reasonable basis on which to approach such matters is always to suspect announcements made at party conferences. I have not described which party conferences I have in mind, but it may be a rule of general present application.
This has been an extraordinary debate. The names that I am about to mention are extraordinary. The noble and learned Lord, Lord Bingham; the noble and learned Lord, Lord Taylor, whose speech I reread with great profit and pleasure; the noble Lord, Lord Carlisle, whose recent James Kingham Memorial Lecture might usefully be studied by Home Office Ministers; the noble Lord, Lord Belstead; the noble and learned Lord, Lord Donaldson of Lymington; and the noble and learned Lord, Lord Ackner, with his proposal, which I believe to be soundly based, that in the interests of public safety and security we must look at the Butler proposals again.

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They were all remarkable contributors to tonight's discussions. To any government such men are dangerous. They think, they analyse and they are fearless. Tonight they have blown a most enormous hole in the flagship vessel which the Minister has been trying to launch before us.
10.7 p.m.
Baroness Blatch: My Lords, first, I am delighted to see the noble and learned Lord, Lord Taylor of Gosforth, who has sat through tonight's debate with enormous patience. I am grateful that he has been present because I know of the interest that he takes in the debate.
It has been an extremely lively and interesting debate. The Crime (Sentences) Bill contains many important and in some respects radical proposals. It is not surprising that a range of strongly held and sincere views have been expressed about them. I am grateful to my many noble friends who have spoken so eloquently in support of the Government's proposals. Perhaps I may move straight on to some of the points made during the debate. If noble Lords will forgive me, I will, as has been characteristic of me in past times, romp through as much as I can in a relatively short time.
The noble Lord, Lord Thomas of Gresford, criticised me for not referring to people. The number of offenders referred to by me are people. They represent great pain, great distress and much grief to another group of real people: the victims. Nothing that I have said takes the humanity out of this debate. It is our concern for people, especially innocent people, that brings this Bill before the House today.
The noble Lord, Lord Thomas, was rather patronising to my noble friends who spoke in support of the Bill because he accused them of speaking from—the noble Earl, Lord Russell, may find my comments amusing but his noble friend accused them of speaking from a point of ignorance. The collective expertise—
Earl Russell: My Lords—
Baroness Blatch: My Lords, I do not intend to take interruptions. It is very late and there are many stages of the Bill during which noble Lords can say everything they wish.
The collective experience of my noble friends Lady Young, Lord Renton, Lady Seccombe, Lady Anelay, Lord Taylor of Warwick, Lord Blake, Lady O'Cathain and my noble friend Lord Tebbit, matches the expertise of many other noble Lords in this House.
The noble Lord, Lord McIntosh, asked where was the provision in the Bill for guilty pleas. The provision is in Schedule 4, paragraph 17, page 63. That paragraph amends Section 48 of the Criminal Justice and Public Order Act 1994. He also asked what the Government have done about crime. First, in recent years we have developed and implemented a co-ordinated strategy on crime. It is set out in detail in the White Paper, Protecting the Public.
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That strategy has four main strands: to do everything possible to prevent crime; to ensure that the police have the powers that they need to catch criminals; to empower the courts; and to improve the procedures of the courts to ensure that they will also have the powers that they need to deal with those who have committed crime and to deal with them effectively. To that end, we have introduced major new legislation—such as, the Criminal Justice and Public Order Act 1994—provided substantial additional funds for the police, pioneered new initiatives on crime prevention and much else besides. The Bill also addresses one other element of our strategy which relates to the sentencing of convicted offenders. We have pursued, and will continue to pursue, the various other strands of our strategy on crime.
Over the past three years, crime has fallen by 10 per cent.—by 553, 300 crimes. With that total, burglary fell by 197, 000, down by 14 per cent. Thefts fell by 411, 000, down by 14 per cent.; theft of motor vehicles fell by 102, 000, down by 17 per cent.; while fraud and forgery fell by 33, 500, down by 20 per cent. However, violent crime rose by 15 per cent. Within those figures, violent crime and offences against the person also rose by 12 per cent. and sexual offences rose by 3 per cent. Robbery was up by 28 per cent. Therefore, the Bill is necessary.
The noble Lord, Lord Rodgers of Quarry Bank, asked many questions about the costs of the Bill. I cannot be precise in answering those specific questions because it depends upon a number of factors including, for example, the cost of contracts negotiated with the private sector to build and manage new prisons and exactly when they come on stream. That is why we have provided upper and lower cost estimates and I stand by them. As regards the other point raised by the noble Lord, 8, 600 new places are also needed by March 2000 to keep pace with the projected increase in the prison population from around 57, 000 or 58, 000 at present to 66, 000 in 1999 and the turn of the century. The Prison Service has been provided with money for that. Indeed, 22 new prisons have been built and opened since 1979, and some 20, 000 new places provided. The building programme will therefore be on a comparable programme to the prison building programme of the 1980s. But, with modern designs, fast-track building techniques and private sector involvement prisons can now be built much more quickly, securely and more cost effectively.
Much has been said about research on the subject. It has been argued that the research of Roger Hood shows that the public will be less well protected under the provisions of the Bill. I disagree. No system is perfect. To my mind, Roger Hood's research clearly illustrates that the present system is not perfect. All those prisoners about whom the Parole Board expressed concern would have been released at the two thirds point of sentence and, I should point out to my noble friend Lord Belstead, would have been supervised for a period equivalent to only 8 per cent. of the sentence. Moreover, under the Bill's proposals, 10 per cent. of them would be subject to the automatic life sentence. Others who were sex offenders could be subject to up to 10 years'

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supervision on release while others would be subject to a period of supervision equal to 25 per cent. of sentence. The public will be better protected, not worse, under the Bill's provisions.
The noble Lord, Lord McIntosh, the noble and learned Lord, Lord Bingham, and my noble friend Lord Belstead, were concerned about the abolition of parole. I do not believe that it will be such a problem. We should remember that of the majority of those who go to prison under the present arrangements, about 90 per cent. are serving sentences of under four years and are not subject to parole. Those prisoners will be released automatically after having served only half of their sentence. Of those who are subject to parole, fewer than half are denied parole, and if denied parole, prisoners are subject on release to a period of supervision equivalent, as I said, to only 8 per cent. of the sentence. Under the Bill's provisions, all prisoners will serve at least five sixths of their sentence, and they may be held for the full sentence. On release, if their sentence is longer than 12 months, they will be subject to a period of supervision equal to 25 per cent. of the sentence.
I have been fascinated by those who have opposed the Bill. They have argued both that the Bill would, at the end of the day, not increase time served, and at the same time that it would cause further overcrowding in prisons. You cannot have it both ways.
The noble Lord, Lord McIntosh, and others were concerned about mandatory penalties and exceptional circumstances. It will be for the courts to determine what constitutes exceptional circumstances, taking account of all the factors of a particular case. It would be neither feasible nor sensible for Parliament to attempt to do so. No list could ever be exhaustive and in any event exceptional circumstances may well arise from a combination of factors rather than one particular factor. The noble and learned Lord the Lord Chief Justice has said that exceptional circumstances mean those that are very unusual at the very least. The words I mentioned in my opening speech were those of the noble and learned Lord the Lord Chief Justice and not my own. What I said was that I agreed with those words.
I have no doubt that the Court of Appeal will take an early opportunity to issue guidance and that it will do so responsibly. A test of unjust in all the circumstances would be too wide. The noble and learned Lord the Lord Chief Justice has said this would allow the court,
"to avoid passing a mandatory sentence in any case where he considered it simply anomalous to do so".
That comes pretty close to saying that the judge could set aside the mandatory penalty simply because he would otherwise have imposed a different sentence. That would make a nonsense of the whole concept of mandatory penalties. Persistent offenders must know that the mandatory penalty will be imposed as a matter of course in the generality of cases.
On the issue of the Attorney-General's right of reference—this was raised by the noble and learned Lord, Lord Bingham—the Attorney-General can refer cases to the Court of Appeal only if they fall within the narrow definition of being unduly lenient compared to
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the sentence levels currently imposed in the generality of cases. Long, determinate sentences are frequently imposed on serious, violent and sex offenders, which cannot therefore be challenged as unduly lenient. However, at the end of that sentence—this is the point—the offender must be released, irrespective of the risk of reoffending. The purpose of the automatic life sentence is to ensure that serious, violent or sex offenders are not released until it is safe to do so, and then remain on life-long supervision. No determinate sentence, however long, can provide that protection.
It was said that only 3 per cent. of recorded crime results in convictions. Comparisons such as this should be treated with great caution. I shall explain why. A burglar who is convicted of one offence may ask for another 50 to be taken into account, but for statistical purposes he has been convicted only of a single offence. A fraudster who has committed numerous offences of, for example, passing hundreds of forged cheques, may be charged only with a single specimen offence. What the police have discovered, time and again, is that by successfully targeting a small number of persistent offenders, they can achieve a real reduction in crime rates. Perhaps that, more than anything else, demonstrates why comparisons between recorded crime figures and convictions can be misleading.
The noble and learned Lord, Lord Bingham of Cornhill, raised another point when he said it was necessary to increase the prison population by 25 per cent. to reflect a 1 per cent. decrease in recorded crime. He quoted some Home Office research on that point. That research was based on an across the board, untargeted increase in the prison population. By contrast, our proposals are carefully targeted at persistent offenders and can therefore expect to have a much more significant effect on prison numbers.
Supporters of the present sentencing system have made much of the parole period and the at risk period of a sentence. I asked particularly for information on the number of offenders who are recalled during parole and at risk periods. The figure has been falling all the time. In 1992, it was 983 prisoners; that is 13 per cent. of all long term prisoners. In 1993, the figure was 773, only 12 per cent. In 1994, the figure was only 300, that is 10 per cent. In 1995 it was 185, that is 10 per cent. The non-parole period that a person spends out of prison is recalled only on the basis of his committing another crime, whereas under our proposals a breach of supervision condition would be an arrestable offence for which an offender will be returned to court and possibly to prison.
My noble friend Lord Tebbit asked how often the maximum penalty for domestic burglary—that is 14 years—had been used. Taking a typical five-week period in a sample of 949 offenders at the Crown Court convicted of burglary in a dwelling the maximum penalty of 14 years' imprisonment was not imposed for any offender including those convicted for a third or more domestic burglary.
I asked for more information on the same subject. I asked whether we had news of anyone who had been given a 14-year sentence. With regard to sentences

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between 10 and 14 years, in the past five years only two domestic burglars have received sentences of more than 10 years. The figure in 1988 was two, in 1989 two, in 1990 one, in 1991 no one, in 1992 no one, in 1993 one, in 1994 one, and in 1995 no one. That is an interesting point for the noble and learned Lord, Lord Donaldson, to note. Perhaps I may complete that set of statistics for the noble and learned Lord. Of the 4, 400 offenders convicted of domestic burglary by the Crown Court in 1995, 179 received sentences of over three years. That is 4 per cent. of them. Only 18 out of 4, 400 were sentenced to more than five years. That is less than half of 1 per cent.
The noble and learned Lord, Lord Donaldson, referred to children aged between 10 and 14 who were convicted of burglary. The Bill provides that convictions of children aged 10 to 144 are to be counted as qualifying convictions. That is certainly true. But it is not the full story. Of offenders aged 10 to 14, 86 per cent. are cautioned rather than convicted. Only serious or persistent offenders are likely to be prosecuted, and a child aged 10 to 14 cannot be convicted of a criminal offence unless the prosecution can prove that he knew that what he was doing was seriously wrong. In those rare circumstances I cannot see why convictions of a child should not count as a qualifying offence.
My noble friend Lady Young asked what constitutes a serious offence. Perhaps I may cite some. They include attempted murder, conspiracy to commit murder, incitement to murder, manslaughter, serious wounding, rape or attempted rape, armed robbery, possession of a firearm with intent to injure, use of a firearm to resist arrest, and carrying a firearm with criminal intent.
My noble friend Lord Carlisle referred to the White Paper estimates of the effect on the prison population. Nowhere in the White Paper does it say that the honesty in sentencing proposals will have no impact on the prison population. We have always accepted that there will be some impact. As I said, it would be unrealistic to expect courts to take account precisely, in setting sentences, of the effect for an individual prisoner of the changes in early release arrangements in the Bill. The estimates in the White Paper and in the Financial Memorandum to the Bill of the effects of the Bill's proposals on the prison population therefore take account of honesty of sentencing.
My noble friend Lord Carlisle asked what is more honest about the proposals in the Bill. The sentence announced by the court will much more closely match the sentence actually served. The judge or magistrate will make clear at the point of sentence the remand time that has been served and is to be credited against the sentence. The public, the victim and the offender will know that the offender will be released early only if he behaves well and has earned early release; and the public, the victim and the offender will know that the offender will be supervised for a period equal to 25 per cent. of the sentence if serving a sentence of 12 months or more at whatever point in his sentence he is released.
The noble and learned Lord, Lord Woolf, the noble Lord, Lord McIntosh, and others referred to the United States experience. I must make clear that the proposals
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in the Bill for mandatory penalties are quite different. Anyone who pretends otherwise is simply wrong. They are targeted at particular offenders, the most serious and most persistent. The Californian three strokes policy applies to a much wider range of offences and requires sentences of 25 years to life for burglars, thieves and similar offenders. To noble and learned Lords who hold that view I cite the example of a friend of mine who was recently in Los Angeles, as I was myself, visiting those who work in the criminal justice system. They said: "If only we could have done it in the way you plan to do it in England, we might have got it right". So they have something to learn from us.
The right reverend Prelate the Bishop of Oxford claimed that no distinction was made between a serious drug dealer and a low-level drug dealer, or a very serious burglar and a low-level persistent burglar. That is simply not so. The proposals set out that, where a person is convicted not once, but twice, and then again, of burglary or drug dealing, then the minimum sentence should apply for those low-level offences; but more serious cases, whether committed for a first, second or third time, will command longer and tougher sentences.
The noble Lord, Lord Hutchinson of Lullington, referred to the Women Against Rape document. I have read the document myself. He also talked about women in prison for fine default and television licence evasion. As I said in my opening remarks, the number of offenders in prison for fine default has more than halved in the past 12 months. As regards women, on 31st December last year, the most recent date for which figures are available, a total of six women were in prison for fine default; none of those cases related to television licences. The noble Lord also mentioned overcrowding in prison. We have a good record on that. The Prison Service has ended the practice of putting three people in a cell designed for one. In 1987-88, 5, 000 were held in that way. In April 1996 the practice of slopping out was ended. The number of prisoners held two to a cell designed for one has also been considerably reduced.
The noble and learned Lord, Lord Ackner, referred to the Butler Report and reviewable sentences. The proposal for an indeterminate reviewable sentence differs from the life sentence in only one material respect; namely, there is no minimum period to be served for retribution and deterrence. However, we believe that the courts should continue to have the power to set the minimum tariff to be served. Therefore there is nothing to be gained by an indeterminate reviewable sentence, and something would be lost.
The noble and learned Lord also referred to Clause 22, and said that it would cause confusion when an offender is sentenced on the same occasion for an offence committed before commencement of the Bill and one committed after commencement. A good deal has been said about the potential difficulties of requiring courts to take account of the changes in early release arrangements. There is nothing new in the idea. When release arrangements were changed in the Criminal Justice Act 1991, the then Lord Chief Justice issued a practice direction giving guidance on the way in which the courts should take account of that change in sentencing.

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Many people have argued that all that is needed is for the courts to explain the position to a prisoner in court in a way that is clear to the prisoner, and not only to the prisoner but also the public. For the purpose of the point I wish to make, I invite noble Lords to imagine a courtroom where sentence is being passed—under the present system, a short-term sentence. The sentence is three years; the prisoner is entitled to release after one and a half years; he will be supervised up to the point when three-quarters of the sentence has been served; and he will be at risk of additional punishment if he commits an additional offence within three years of the sentence.
Now let us take another example under the present system—a long-term prison sentence. The sentence is six years; the prisoner is eligible for release after three years, but that is subject to a decision by the Parole Board, which will consider the case. A prisoner is entitled to release after four years; is supervised until the four-and-a-half year point in the sentence; he is at risk until six years.
I ask noble Lords to project their minds forward to the courtroom under the proposals set out in the Bill. Whatever the sentence, the prisoner will serve it all, save for earned early release at the rate of 12 days per two months. He will be supervised for an additional 25 per cent. of the sentence. I invite noble Lords to accept that the proposals in the Bill are straightforward.
My noble friend Lord Belstead asked whether the scheme will not be time-consuming and cumbersome in relation to determining who shall have earned early release. The Prison Service already has experience of regular assessment of prisoners' behaviour through operating the earned privileges scheme, which is working very well in our prisons. We intend to build on this experience and to determine in more detail the operation of the earned early release scheme in consultation with prison governors.
The noble and learned Lord, Lord Archer of Sandwell, made the most extraordinary statement. He talked about reflecting the seriousness of the facts: whether or not the occupants were at home, whether or not they were terrified. How can such a judgment be made? It might be fortuitous for the burglar that the home was not occupied at the time of the burglary. He will not know that as he enters the premises. However, the intention to burgle remains the same, the act of burgling is just as serious. The idea is strange that sentences could reflect the fact that because the occupants were not at home to be frightened at the time of the burglary, somehow the sentence could be lighter.
I know what has also been said about "only stealing a bottle of milk". I remind noble Lords that it may be just a bottle of milk and the first time. We have been burgled a number of times and in the first case just a pair of sheets were taken. However, some people are daily harassed by that kind of minor burgling. We are not talking about someone who does it once but twice and then again a third time—for instance, an old lady living alone taunted by that kind of daily stealing of small things, whether a loaf or a pint of milk. I argue
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that that is as serious for such people as for anyone else. We should not have a tolerance level which says that simply because it is a pint of milk we should ignore it.
My noble friend Lord Taylor of Warwick expressed concern about the position of an offender who, for example, has offered valuable assistance to the police in tracking down other criminals, perhaps a drug ring. The judge may give the reason in open court for setting aside a mandatory sentence, using the provision of exceptional circumstances. I hope my noble friend will accept that that is not without difficulties but I wish to reflect on the points he made.
The noble Earl, Lord Mar and Kellie, referred to curfews in a thoughtful speech. I agreed with much of what he said but curfew orders can be either self-standing or combined with measures: for example, drug or alcohol rehabilitation programmes. The noble and learned Lord, Lord Hope of Craighead, was the only person who referred to the Scottish dimension, what I call the "kilting" of the Bill. The offences set out in Clause 1 of the Crime and Punishment (Scotland) Bill are perhaps more similar to those listed in Clause 1(5) than the noble and learned Lord acknowledges. For example, in England the crime of rape includes male rape; in practice, I believe the equivalent in Scotland is sodomy, where one party does not consent. The distinction between the lists exists because of differences in the definitions of similar crimes north and south of the Border. The differences may not be so significant in practical application as the noble and learned Lord, Lord Hope, suggested. However, the detailed points that he raised will be carefully considered and can no doubt be dealt with in greater detail if an amendment is put down to Clause 1(6). It will fall to be dealt with at later stages of the Bill.
My noble friend Lord Hacking referred to mentally disordered offenders. Courts will retain discretion to impose a hospital order on mentally disordered offenders convicted of repeat offences under Clauses 2 and 3. However, the offences covered by Clause 1 are so serious that only the automatic life sentence with hospital direction, if the offender is psychopathically disordered, will provide the necessary public protection. I can say to the noble Lord, Lord Dubs, that there is a good deal of the flexibility that he calls for in the measure.
I say to the noble Lord, Lord Hacking, that I must admit to some frustration, having listened to the range of burglary activities from relatively minor burglaries to the most serious. As I said, that can be reflected in the application of the minimum sentence up to the maximum.
The noble Lord, Lord Thomas of Gresford, referred to Clause 1(2). He said that when a life sentence was given in court, it could confuse everyone. However, it is not given in isolation. A life sentence will be given if the sentence is qualified, but it will be accompanied by the judge determining the tariff that will be served before the Parole Board considers the safety of releasing the offender, and is satisfied that he presents no risk to the public, before approving the release. There is nothing dishonest in that.

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As my final comment to noble Lords opposite, I have to say that I listened very carefully to what was said by all noble Lords opposite and I shall read it very carefully. But from all that has been said, I am hard pressed to believe that they are supporting anything within the Bill.
I want to return finally to the main themes of the Bill. The public rightly expect protection from serious, dangerous and persistent offenders. The mandatory penalties which are at the heart of the Bill are designed to reinforce that protection. They are carefully targeted and narrowly focused on crimes which cause particular harm and distress: serious violent and sex offences, domestic burglary and dealing in hard drugs. We believe that urgent action is required to provide a real deterrent to those who commit such offences; to punish severely those who continue to offend regardless; and, most of all, to protect the public from their activities.
Our proposals for honesty in sentencing will introduce greater transparency into the sentencing process and ensure that supervision after release is properly targeted on the most serious offenders. The Bill also contains a range of important new measures relating to community penalties, mentally disordered offenders and juveniles. I firmly believe that the package of
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proposals contained in the Bill will make a major contribution to the protection of the public and to public confidence in the criminal justice system. I commend the Bill to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Criminal Evidence (Amendment) Bill
Brought from the Commons; read a first time, and to be printed.
Policyholders Protection Bill
Brought from the Commons; read a first time, and to be printed.

Knives Bill
Brought from the Commons; read a first time, and to be printed.
House adjourned at twenty-two minutes before eleven o'clock.

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