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

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

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

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

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

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

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

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

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they are rare cases—where children of a relatively young age are found guilty of the kind of offences that we are discussing. We believe that we have sufficient safeguards in place.

I turn to the question of the noble Lord, Lord Renton. When looking at the provisions of Clause 216, it is important to remind ourselves what subsection (2) actually provides. A number of things have to be established. Subsection (2) states:


    "If—


    (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life—

that is the first criterion—


    "and


    (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life".

Those are significant, or rather substantial, hurdles over which one must leap before the court, being so satisfied, then must impose a sentence of imprisonment. Under Clause 216(2), the court has to exercise its discretion in relation to (2)(a), then in relation to (2)(b). Only if the court is satisfied that (a) and (b)—it is not a case of "or" but "and"—are satisfied must it then impose the imprisonment. If the court finds that (a) and/or (b) are not so satisfied, it has the opportunity not to impose life imprisonment. Then, of course, all the other ways of dealing with the offender are open to the court. We believe that the provision is clear and that it is a perfectly sound way of dealing with the matter.

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

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

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

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not being soft on crime. I wish to seek the opinion of the Committee.

4.58 p.m.

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

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

Division No. 1

CONTENTS

Ackner, L.
Addington, L.
Anelay of St Johns, B.
Arran, E.
Ashcroft, L.
Astor, V.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Flather, B.
Fookes, B.
Fowler, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Gray of Contin, L.
Greenway, L.
Griffiths of Fforestfach, L.
Haskins, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Kennedy of The Shaws, B.
Kimball, L.
King of Bridgwater, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Lyell, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Methuen, L.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Mowbray and Stourton, L.
Moynihan, L.
Naseby, L.
Newby, L.
Northesk, E.
Northover, B.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Patten, L.
Pearson of Rannoch, L.
Phillips of Sudbury, L.
Plumb, L.
Reay, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheppard of Didgemere, L.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Swynnerton, L.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Ullswater, V.
Waddington, L.
Wakeham, L.
Walmsley, B.
Weatherill, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.

NOT-CONTENTS

Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Irvine of Lairg, L.
Islwyn, L.
Jay of Paddington, B.
Jones, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mar, C.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Newcastle, Bp.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richardson of Calow, B.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Truro, Bp.
Turnberg, L.
Turner of Camden, B.
Warnock, B.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Wilson of Dinton, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

14 Oct 2003 : Column 796

5.9 p.m.

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

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

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


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