My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, yes. Proposals made under Article 84 of the treaty can now be adopted by the Council of Ministers acting by qualified majority. Consequently, the current proposals on capacity and market access are now subject to this procedure.

My Lords, in view of that reply can the Minister say whether market access and air capacity will be on the agenda for the next meeting of the transport ministers' council? If so, will they be able to be decided by qualified majority voting?

My Lords, yes. We believe that the aviation package will be on the agenda on 7th December. The substance of the package was agreed unanimously in June. Intensive bilateral negotiations are continuing with Spain, aimed at resolving the Gibraltar problem. However, it was never the intention that formal adoption of the package should depend on the outcome of bilateral talks.

My Lords, the Minister did not answer my question about majority voting. Does he realise that this is a very complicated subject for us laymen? Can he tell me whether it is correct that despite ratification of the Act, should the Council of Ministers wish a matter to be decided by qualified majority voting this can be done only if the Commission agrees with what the Ministers wish to put forward? If that is true, does it not mean that it is the Commission which decides these matters and not the Council of Ministers, whatever the Ministers may wish to propose?

My Lords, no; that is not quite right. The Council of Ministers may adopt a proposal that is before it by qualified majority. Article 149 of the treaty requires unanimity if the council is to amend the Commission's proposals. If the Commission's proposals are not to be amended, they can be decided by qualified majority.

My Lords, in the light of the certainty of majority voting, can the Minister say what effect this could have on any United Kingdom policy decisions on air regulation and use of our airports? I ask that in view of the reference by the chairman of the Civil Aviation Authority to the London space being overcrowded. Can any of our policies be affected by majority vote?

My Lords, I do not think that they could be affected by qualified majority voting. However, on the noble Lord's second point about capacity, the possible effect of liberalisation on the underlying trend towards larger aircraft was taken into account in the 1985 White Paper, Airports Policy. While it is true that liberalisation can tend to increase the number of aircraft used on certain routes without a proportionate increase in passengers, the ratio of passengers per air transport movement has remained stable at Heathrow over the past five years while at Gatwick the ratio has increased by 14 per cent. over the same period.

My Lords, if majority decisions are in order at this meeting, can the Minister inform the House whether the liberalisation of air fares will be a matter that can also be dealt with at the same time? When we are talking about liberalisation, apart from access we are talking about making the nonsense of the comparison of scheduled air costs which are operated by a pseudo cartel in Europe comparable with the charges made elsewhere.

My Lords, yes. I tried to indicate that the whole package that was agreed in June by the Council of Ministers but which is held up at present by the dispute with Spain is subject to qualified majority voting now; and that could happen on 7th December.

My Lords, while I am sure that the Minister is correct, perhaps I may ask whether I correctly understood what he said. If the Council of Ministers wishes a matter to be decided by qualified majority voting, and if the Commission does not approve of the proposal that the Ministers are wishing to put forward, can the Council of Ministers do that and not be overriden by the Commission demanding a unanimous decision?

My Lords, if the Council wishes to amend the Commission's proposals—which is not the case at present—it can do that only by unanimity. If it wishes to adopt the proposals which have been produced by the Commission it can do that by qualified majority voting.

My Lords, I am talking about matters proposed not by the Commission but by the Council. I am sorry I was not clear. If the Council of Ministers wishes to put up a matter to be decided by majority voting, and if the Commission does not approve of what the Council of Ministers is putting forward, is it correct that the Commission can overrule the Council and decide that the matter must be decided by unanimity and not by qualified majority voting?

My Lords, if the Commission has made or approved the proposal, the Council of Ministers can then use qualified majority voting. If, however, the Council wishes to amend or alter the Commission's proposals, that has to be decided by unanimity.

My Lords, can my noble friend say whether there is any truth in the article I read in the paper yesterday about his right honourable friend the Foreign Secretary's discussions with the Spaniards, saying that the Spaniards would be allowed to use Gibraltar? Has he any further comment to make on the matter?

My Lords, we have been having intensive bilateral talks with the Spaniards. These are still going on. Senior officials are engaged in intensive discussions and will be talking further next week. The Foreign Secretaries meet together at the end of this month and hopefully in time for the 7th December transport council.

My Lords, I thank my noble friend for his reply.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, mentally and physically disabled children are one of the Government's priority groups as set out in Care in Action. It is, however, for individual health authorities to determine the level of services provided, taking into account available resources and local needs and circumstances.

My Lords, I thank the noble Lord for that Answer. Is he aware that there are huge disparities over the country between different area health authorities? is he satisfied, in view of the fact that this is a priority area for the Government, with the provision in different areas?

My Lords, thanks to the warning given me by the noble Countess, I have investigated this matter. I have been advised that resources for children with special health needs are not at issue in any region of the country.

My Lords, I am sorry to intervene again. Is the Minister aware that there are no beds for respite care in Worcester area health authority, for example?

My Lords, yes; that is as I have been advised. But that does not necessarily mean that there is need for those beds within a health authority. Many of those matters, as the noble Countess will know well, are decided on a regional basis.

My Lords, can the Minister explain why the Government feel that they do not have any responsibility to suggest target figures? is that not part of their responsibility in providing a National Health Service? Is it not true that there is a very great deal of variation between different regions in the service they provide for the group of disadvantaged children about whom we are talking?

My Lords, the noble Lord, Lord Ennals, knows better than anyone that the regional planning system covers all the activities in a region. Those are reviewed annually both by officials and Ministers. I can advise the House that we are currently devising ways to help health authorities to improve their monitoring, which is one of the problems.

My Lords, is the Minister aware that some of the hospitals in the centres of our larger cities, to which people are brought from the outer areas for specialised treatment, continually claim that they are underfunded and cannot carry out such a function? My colleague the noble Lord, Lord Stallard, referred last week to the Manchester Eye Hospital. Will the Minister look into this situation? We believe that such underfunding is grossly unfair.

My Lords, with the greatest respect, the Question on the Order Paper is addressed not to acute services but to the requirements of children with special needs. If the noble Lord would like to address a Question to the Government generally on the point that he makes, I or one of my noble friends would be delighted to answer it.

My Lords, does the Minister agree that the therapy professionals, such as occupational therapists, physiotherapists and speech therapists, are very important in this group and that there is a shortage of these important people in many health authorities? Will he do as much as possible to encourage them to stay in the health service?

Yes, my Lords; indeed all the therapies that the noble Baroness mentions are extremely important to children with special needs. The Government are encouraging authorities to raise their recruitment of these specialists. I am advised that that campaign is going well.

My Lords, can the Minister tell me how many children with mental handicap there are in the different authorities, and whether he is satisfied with the provision for them now and in the long term?

My Lords, that is a little general at this moment; but I can advise the House that there are no children with mental handicap in hospital in either Somerset or Worcester.

My Lords, will the noble Lord look again at the situation within the Worcester Area Health Authority? I have had a number of parents asking me to raise this matter in the House. They are very concerned that there are no places for respite care. Perhaps the area health authority could be asked to reach parents of children in mentally handicapped groups.

Yes, my Lords. I shall certainly take on board the point that the noble Countess has just made.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, we have played a leading role in discussions of Iran/Iraq at the United Nations Security Council. The conflict is also discussed regularly within European Political Co-operation and bilaterally with a range of countries.

My Lords, I am grateful to the Minister for that reply. I acknowledge that there are formidable practical difficulties in getting full-scale liaison. Does he agree that there seems to be better co-operation from the USSR, and that the British and American naval presence in the Gulf work very well together? Does he further agree that, although the difficulties are enormous, the Government do not regard them as insuperable? Will we try to move more closely towards unified action by all those involved in the Gulf?

My Lords, there is already wide international consensus on the need to end the conflict in the Gulf—I am sure the noble Lord is well aware of that—and to support Security Council Resolution No. 598. That has been demonstrated best by the Arab support that came forward at the Amman Summit. We have co-operated closely with our European partners since the conflict began and have issued numerous common statements. The important thing is to try to concert and co-ordinate a common line.

My Lords, as there is a United Nations policy on this matter, can the noble Lord tell us what success it is having in achieving peace?

My Lords, we still hope that it will be possible to further the aims of the Security Council Resolution No. 598. That must remain the key. It is also important that we support the freedom of navigation of all waterways such as the Gulf, and that is demonstrated by the presence in the Gulf of naval forces from five Western European Union members: ourselves, France, Italy, Belgium and the Netherlands.

My Lords, are the Government satisfied that the present ad hoc naval arrangement that we have in the Gulf is working satisfactorily? Can he say a word about the four mine-sweepers and confirm the reports that we have received that they are making a valuable contribution?

My Lords, I can certainly confirm that the four mine-sweepers are making a valuable contribution. The arrangements for concerting and co-ordinating the approach of the naval forces there is much better done locally than by any other agency. I also assure the noble Lord that that is going particularly well.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

No, my Lords.

My Lords, I thank my noble friend the Minister for his courteous but brief reply. Does he not agree that this might be a splendid opportunity to benefit the environment by removing some of the electricity cables and wires which are blocking out the views of our beautiful countryside like a tangle of old knitting?

My Lords, it is too early yet to reach conclusions on the lessons to be learnt from the damage caused by the hurricane which struck the South-East of England in the early hours of 16th October. However, it is already clear that much of the damage was caused not only by falling trees, which gave rise to faults to overhead lines, but also by roots pulling up underground cables.

My Lords, may I ask my noble friend whether a buried cable is not less vulnerable than an overhead one from the point of view of enemy bombardment, terrorist action or future storms?

My Lords, I am sure that my noble friend is right in certain respects, but installing underground cables normally costs between three and 10 times the expense of putting up overhead lines. I have here a list of eight technical reasons for not putting electricity cables underground, but I do not feel that the House will thank me for reading it out now.

My Lords, is the noble Viscount aware that I am not quite certain whether his answer, no, was to the first or the second part of the Question, or both? Is he aware that the Government probably do have power to give a general direction if they so desire, but they may not wish to? Does he accept that it could be more environmentally damaging, as well as a lot more expensive, to put cables underground? Does he agree that probably the correct answer is not to put underground all the cables that were brought down on that awful night of 16th October but for all the electricity boards to review their policies with regard to electricity cables which habitually fall during normal winter gales?

My Lords, I am grateful to the noble Lord for that question. Electricity boards are required under Section 37 of the Electricity Act 1957 to take into account any effect that their proposals might have on the natural beauty of the countryside, any flora, fauna, features of special interest, buildings or other objects. Before boards are permitted to place new overhead lines they are required to obtain consent from the Secretary of State for Energy, who before granting consent takes into account any objections received.

My Lords, does the noble Viscount agree that cost is a very big factor, in that it goes on to the consumers' electricity account in the end? That is significant and it is another reason why we should not want to put everything underground. I speak as a member of the London Electricity Board, the services of which are entirely underground and did not suffer any damage, but those cables were placed at great cost.

My Lords, I agree entirely with my noble friend. I believe that I said that the cost of installing cables underground is between three and 10 times that of overhead lines. For the higher voltages, lines can be up to 40 times more expensive.

My Lords, is there any danger to underground cables in the event of flooding or if they are broken by a digger or something of that kind?

My Lords, I should have thought that there was considerable danger from the latter.

My Lords, for those who live in wooded areas and who have regularly suffered over the years from interruptions in electricity supply, would it not be a sensible long-term policy selectively to put cables underground? I feel that here there is a question of saving money in the short term but incurring much more expenditure in the long term?

My Lords, I agree, but it will be up to the consumer to foot the bill. The House might like to know that for private lines to houses the first 60 feet laid underground is laid free of charge and the balance is paid for by the customer, the cost being a matter of negotiation with the electricity board.

My Lords, is the noble Viscount aware that it is claimed that it is actually harmful to health to live too close to an overhead electricity power cable and it might therefore be safer to have underground cables from a health point of view?

My Lords, it depends on which was there first, the electricity cable or the house.

My Lords, is the noble Viscount aware that underground lines also generate heat? They have to be cooled and damage to the environment occurs because they have to have cooling stations above the ground. That can be more harmful than overhead lines.

My Lords, that is one of the items on the list that I have not read out.

My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Brabazon of Tara will, with the leave of the House, repeat a Statement that is to be made in another place on the fire at King's Cross Station.

It may also be for the convenience of your Lordships to know that the Report stage of the Criminal Justice Bill will be adjourned for a period at approximately 7 p.m. and that during this adjournment the Welfare of Battery Hens Regulations 1987 and the Welfare of Calves Regulations 1987 will be taken.

My Lords, I beg to move that the Bill be now further considered on Report.

moved Amendment No. 40:

After Clause 36, insert the following new clauses:

My Lords, there is a famous English institution which has as a motto, as I recollect, "I mean well". I would wish that that motto be applied to the noble Lord, Lord Elton, this afternoon. There is not the slightest doubt that the purpose that he has is a worthy one; namely, the speeding up of justice, the saving of money to the Treasury, and also economising on the legal aid fund. But before one speeds up justice one has to be sure that justice itself is going to be granted. Looking at matters first of all objectively and then from the point of view of the defendant, may I quickly summarise the reasons why we on these Benches would oppose this amendment.

First of all, your Lordships will appreciate that the penalty for theft in regard to values under £75 would be limited to a fine. Those over that amount would be imprisonable. I ask your Lordships to consider for a moment, if you were sitting as the sentencing judge or magistrate, which would your Lordships regard as the grimmer offence: someone who stole a radio from a Rolls-Royce, the radio being worth more than £75, or the person who stole the last £5 of a widow? I believe I know the answer. In those circumstances I ask your Lordships to consider before you would pass an amendment which would make the stealing from the widow a matter for a fine and the stealing of a radio from a Rolls-Royce possibly a matter for imprisonment.

I turn to the next point. It is not an original one so far as I am concerned but one which I remember was raised in Committee. The noble Lord who raised it will forgive me if I do not remember his name because I would wish obviously to give him credit for it. It was that as you have this amendment before you your Lordships will observe that if somebody keeps on stealing something below £75 and makes sure that his valuation is precise, and possibly can afford to have an official valuer with him on each occasion, it would mean that he could perpetrate 20 thefts of this kind below £75 knowing that when he appears before the friendly and now familiar face of the local magistrate the magistrate will only be able to administer a fine.

I turn lastly to the justice from the point of view of the defendant. The noble Lord, Lord Elton, was quite right to forecast that this point would be made. It is an obvious one but nevertheless a true one. The stigma of theft is one of the gravest that can be put against anybody's character. Not to have the opportunity of being tried by his peers, as for all serious crimes, would be quite wrong whatever the value of the thing alleged to have been stolen, even if it were a bottle of milk.

I wonder whether your Lordships will allow me in conclusion—and I promise in conclusion—to tell you of a case that I shall always remember. I was a young advocate at the time and I was appearing in Bow Street magistrates' court. The case before mine was a case of a tramp who was wandering down Charing Cross Road and was alleged to have stolen somebody's wallet. The magistrate heard the case very quickly. He was a just magistrate. The fact that he heard it quickly did not mean that he was not giving due attention to the case. He heard the story of somebody wandering down Charing Cross Road who was accosted by the tramp, who asked him the time. He gave him the time and tramp hurried away. He thought he noticed that his pocket was touched. He immediately felt in his pocket and found a wallet missing.

The tramp was hurrying away and the gentleman concerned called out, "Stop thief!" After what appeared to be a lapse of time when something could have been thrown away, the tramp was stopped and he was duly arrested by a police officer who came from the nearby vicinity. He appeared in the court and gave evidence and told the magistrate, in my hearing, that he really wanted to know the time and that he had hurried away because he was due to meet a pal somewhere near Trafalgar Square. The magistrate said, "There is too much of this going on. I have heard that story before. Guilty. I want this man remanded for a report".

I then conducted my case, and I was asked by the clerk of the court if I minded being interrupted. I said, "Certainly not". The man, having travelled down Charing Cross Road, reappeared in a flustered condition. He told the learned magistrate that he had been home, had looked at another of his suits and found the wallet inside. He wanted to apologise to the court and to everybody concerned. The magistrate, being the man that he was, said, "Call this man up at once. Of course he will be acquitted. The day's hearing has not yet finished and I can deal with the matter in that way. I must not say again that I have heard this type of case before".

Juries have not heard that type of case before and that is why our system of trial by jury is so valuable in our criminal law.

My Lords, I should like to support my noble friend Lord Elton most warmly. I am also pleased to hear that the noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Roskill, also support the proposal, although they are unable to be present.

I speak in support of the proposal because of the experience of judges who have had to deal with trial by magistrates and trial by jury. Our magistrates are of first-rate quality. They are the best citizens in the land, intelligent and well able to deal with such cases. They are well aware of the burden of proof: that a man is not to be found guilty unless the case is proved against him beyond reasonable doubt. Trial by magistrates is a first-rate tribunal. I should not like to say the same about trial by jury, although I have the greatest regard for it in all serious and important cases.

Let us think about the matter. As my noble friend said, justice delayed is justice denied. That applies to both sides; not only to the accused but also to the prosecution. If witnesses are to be called, let them be called as soon as possible, while their memories are clear, and not after a delay of 14 months. Delay is advantageous to the defendant; it does not help the prosecution.

In my experience, ordinary, decent folk charged with petty theft—for that is what it is—would say, "Let us get it over with now and decide the matter before the magistrates so that I shall know the worst now". I fear that the right to trial by jury is abused—and I shall say it plainly—by some lawyers representing the accused. They will say that they want to elect for trial by jury because they know what will happen. The case will not be tried for six or nine months, or whatever it may be, until the Crown Court can take it. Mark you, how good for the lawyers! Legal aid will be available, the lawyer will be able to delay the case and, although I think it is wrong, he will hope to have a better chance of getting his client off. In other words, I am afraid that a request for trial by jury is sometimes abused by lawyers defending the accused. There are all the reasons which have been given by my noble friend.

Are the Crown Courts to be filled with what many judges consider to be trivial cases? I agree that they are small cases but important to the individual. But do not let Crown Courts be filled up with such cases. Let the magistrates, a first-rate tribunal, deal with them. I am sure that most defendants would agree with that view. I support the amendment.

My Lords, my experience is much less than that of the noble and learned Lord, Lord Denning. However, perhaps it has the slight compensating factor of being rather more recent. I should like to dissociate myself entirely from the view of trial by jury which has just been put forward. I believe that it flies in the teeth of the evidence. I believe the evidence is perfectly clear; that of every 100 cases which are tried by a jury, selected at random but presided over by an experienced judge who has not been selected at random, 99 cases would have exactly the same result if they had been tried by a stipendiary magistrate or by lay justices.

Of course there is the occasional marginal case where views may vary, just as there would be if the same case were tried by two different courts of lay justices. However, if one looks at the acquittal and conviction rates and at the inquiries that have been made of the views of trial judges of the verdicts in cases where they have presided, one inevitably comes to the conclusion that a jury is a thoroughly dependable part of our criminal system. I am deeply sorry that such a distinguished noble and learned Lord should venture to cast doubts upon the system.

Equally, the noble and learned Lord is not right when he says that advocates elect trial by jury because, to use his words, there is a better chance of getting an accused off. There is not. Advocates elect trial by jury for a simple reason. In a jury trial one has the opportunity to obtain all the evidence of the prosecution in advance, to study it and prepare and plan the answer on behalf of the defence. It is for that reason that lawyers elect for trial by jury and for no other.

In those circumstances, I suggest that that argument—which might be at the back of the minds of some members of the Committee but which is at the front of the mind of the noble and learned Lord—is not a reason for supporting the amendment. Nor was it a reason put forward, if I may say so, in a moderate, clear and well-argued speech by the noble Lord, Lord Elton. I believe that the issues are those of expediency and eventually of principle.

On expediency, it is said that trials might come on more quickly if they are dealt with by magistrates. In the case of contested charges of dishonesty I am not sure that that is right. Today the vast majority of committal proceedings are purely formal. The case is dealt with instantly before the magistrates' court and does not occupy 30 seconds of the court's time. The case will go to the Crown Court in perhaps four, six, eight or 10 weeks—whatever the normal waiting time for a case. I am sure that the noble Lord, Lord Elton, will say that that is too long, and I agree. Nevertheless, the case will be heard in that period of time.

If it is a contested case of dishonesty that is liable to last for two or three days, the same case will take at least the same period of time before being heard in a magistrates' court because of the pressure of work upon them. That applies particularly to lay justices in rural areas, who inevitably find themselves sitting the odd half day or two a week and who find it difficult to assemble together for two or three consecutive days in order to try a case of that nature.

In those circumstances, it is not right to say that cases will necessarily be tried more speedily if we remove them from the Crown Courts. The other argument is that the pressure on the Crown Courts is so great—and there is so little pressure on the magistrates' courts—that it is a way of doing a balancing act. Noble Lords who serve with such distinction as lay justices will know perfectly well that that argument is inaccurate. Lay justices are under the same pressure of time as are the Crown Courts.

One is then left with the issue of principle raised by the noble Lord, Lord Mishcon. Is it right to say that because some offences of dishonesty happen to involve less than £75 they are somehow less serious than other offences which involve a larger sum? It is clear that the alleged theft of £1 may have far more serious consequences for some people than the alleged theft of £100,000 has for others.

The idea that one can fix an artificial limit of £75 is almost indefensible. Let us take an absurd example and suppose the theft concerned a piece of antique furniture. One would have the Gilbertian situation that before the case began the Crown would argue that the so-called Chippendale was worth only £74; but the defendant would argue to the contrary, saying that he would call expert evidence to prove that it was a genuine Chippendale, worth thousands of pounds and that therefore he was entitled to trial by jury. One cannot differentiate between offences of dishonesty on the basis of the sum involved.

I should like to make one final observation which I have made before and which I make no apology for repeating. In supporting the right of a person who is charged with an offence of dishonesty, a conviction for which may affect his whole life, his standing in his family and the community, to have trial by jury, I am in no way criticising the competence or ability of lay justices. Of course it is not a criticism. But if there is a trial by jury and a verdict of guilty or not guilty is given by 12 people who are chosen at random from the community, that verdict is one that the whole community and the defendant himself accept as final. In those circumstances I suggest that the balance of argument is overwhelmingly against this amendment.

My Lords, I wish that I had been able to speak to this amendment at Committee stage. Unfortunately at that time I was on the steps of the Throne and could not speak from there.

I have very great respect for the noble Lord, Lord Elton, and much sympathy with his intention in moving this amendment, but I cannot support it. I could not support it even if the maximum sum involved were only 75p. The noble Lord, Lord Mishcon, emphasised the stigma that is cast on the character of an individual for his lifetime by a conviction for theft however paltry the amount involved. It has not at all the same effect as a conviction for a parking offence or speeding on the motorway.

I wonder how many noble Lords, and especially noble and learned Lords, have any idea of the ease with which one can inadvertently shoplift. I know it is easy because I have done it on two or three occasions. However, I have been lucky enough to get out of the shop without being arrested and, having realised what I had done, quickly returned to pay for the goods that I had with me. On one occasion early in the morning I went into Selfridges to buy an umbrella. Having chosen an umbrella I looked around for a till or an assistant in order to pay but the entire department was empty. I walked through the shop looking for someone to whom I could offer the money but on the way my eye was caught by a rack of belts. Since I wanted a belt, I paused, hung the umbrella over my arm and looked through them. Not finding a belt that I liked, I walked out of the shop, but by then I had completely forgotten the umbrella that was still over my arm. As I was walking down the street a few minutes later it started to rain and I was about to open the umbrella when I remembered that I had not paid for it. I managed to return to Selfridges and pay for it, without being caught.

Such things are all too easy. Just in case any of your Lordships think that such things happen only to middle-aged women, I must tell them that it is not true. I told the story only a couple of days ago to a youngish Peer, who said, "Yes, exactly the same thing happened to me in the local supermarket not long ago". It is only too easy to take goods if one is preoccupied or suddenly distracted, for example, by meeting a friend.

I think that in those circumstances it is quite unacceptable to deny the victim a trial by his peers, however long it may take, and the chance of clearing his name and character.

My Lords, of course I realise that there are arguments on both sides of this matter. I must say to the noble Lady who has just spoken that on the facts of the case that she has anecdotally recounted, in my experience certainly she would have been acquitted either by a jury or by a magistrate. I do not take much notice of such stories. However, I should like to bring forward one or two factors of which, at any rate at this stage of the Bill, I do not think the House has been informed—although perhaps the House was informed of them in Committee but I was not present on that occasion, for which I must apologise.

The argument has quite a long history behind it. When first I was Lord Chancellor I learned of a case that took up a day and a half of the Crown Court's time. It concerned a man who was charged with stealing not a bottle of milk, as the noble Lord, Lord Mishcon, said, but an empty milk bottle I wonder whether that is really a rational way to conduct criminal justice.

The James Committee, formed under the chairmanship of the late Lord Justice James, came to the conclusion that smaller thefts, at any rate in principle, should be triable by magistrates and that it should not rest entirely with the defendant to say whether or not he should be tried by magistrates. I remind the House that in an appeal against conviction or indeed against sentence from the magistrates there is a complete rehearing by the Crown Court, which consists of again considering the evidence on both sides. My view is that for a case of such a lack of importance that is an adequate safeguard for the burden and standard of proof which is quite rightly demanded in criminal cases.

When the James Committee report ultimately came to be implemented by the then Labour Government, I sat approximately where the noble and learned Lord, Lord Silkin, is now sitting, and the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Harris of Greenwich, produced an amendment not very different from that of my noble friend Lord Elton today. It was then my painful duty to have to tell the noble and learned Lord, Lord Elwyn-Jones—and I hope that he will not complain that I have broken a confidence—that I had been informed by the Conservative Whips that, although I supported the amendment of the then Labour Government, it would not go through the House. So, in order not to waste the time of the House the amendment was withdrawn. However, sooner or later we must grasp the nettle, whether or not it takes the exact form that my noble friend Lord Elton has proposed.

I attach a very great deal less importance to the stigma argument than did the noble Lord, Lord Mishcon. Let us take the case of the late Professor Joad, who effectively stole from the railway company (or whatever it was at that time) the money represented by the ticket for a journey between Reading and Paddington—I think it was Paddington. He could only be tried by magistrates. He told a totally untruthful story and he was convicted. However, if he had taken a book of the same value from Woolworth's, with the same dishonest intent, then morally and in the sight of God he would have been neither more nor less guilty than he was when he stole the money from the railway company. The idea is absurd that a stigma attaches to the act of stealing because it is technically stealing in English law but not to stealing from railway companies. The maximum penalty that Professor Joad could have been given and was given by the magistrates was, I think, a 40-shilling fine. But the stigma attached to him was absolutely identical. In fact, it ruined him, because the BBC, who at that time was his principal employer, would not employ him again for ever and a day.

If I were asked myself—and I do not put myself forward as one who would dare cast the first stone at anybody else—would it do me much more harm in the eyes of the public if I were to commit a deliberately cruel act on a dog or steal a book from a railway bookstall, I think it would do me far more harm to be convicted of a cruel act to a dog or neglecting a child. These things are triable summarily only, but I would be entitled to trial by jury if I took the book. I regard this as wholly irrational and we do not want therefore to approach this matter in quite the emotional way that some people are inclined to do.

I remember the very tragic case of Lady Barnett, who was quite a habitual shoplifter, as subsequently emerged. She was quite rightly, in the state of the then existing law—because in the state of the then existing law you were not allowed to know the case for the prosecution, except for the bare allegation—advised by her advisers to go for trial by jury, which of course she had the right to do. I believe that she would have had exactly the same result had she been tried by magistrates, but with this rather considerable difference. The publicity which the delay and the double hearing of committal and trial by jury attracted so affected her that she took her own life. I am quite sure that she would be alive today if the amendment proposed by my noble friend had been the law.

I think that there are very strong arguments on both sides. I took the point—and if he will allow me to say so it was very well made—of the noble Lord, Lord Mishcon. The habitual offender who habitually steals on a small scale is far worse than the person who steals once and rather a lot. My own view, for what it is worth, is that it should rest with the magistrates' court and not simply with the defendant to say whether a case ought to be tried by jury or whether it could be dealt with adequately by magistrates. There are of course cases of very small thefts which raise rather interesting and complicated points of law; and this is a point which has not, I think, hitherto been raised in this debate. I think that they should go to the Crown Court, because a good question of law on a case of theft is rather worth discussing between lawyers, even with legal aid, though it is rather expensive.

But simply as a matter of principle, I must say that having viewed the point more than once in the past 17 years I would side with my noble friend Lord Elton. However, I am not absolutely sure that the way to do it is to reduce the penalty and limit it to a relatively modest fine and not leave it to the discretion of the court to consider whether the seriousness of the facts demands the time, expense, anxiety and delay involved in a jury trial, and whether the case cannot best be dealt with in the magistrates' court, subject of course to the right of appeal by way of rehearing if the defendant feels that he is aggrieved by conviction.

My Lords, I should like to follow the noble and learned Lord and support the amendment, in so far as it should be right to have summary trial rather than the expensive and long drawn-out procedure of going to a higher court. The only thing that concerns me, as with the noble and learned Lord, is whether you should have a fixed penalty.

As your Lordships know, I work in the field of crime prevention and I can assure the noble Lady that the one-off person who actually makes a mistake is not the person we are dealing with in the courts. It is a group of persons who set out deliberately to steal vast sums of money, which does not cost the shops the money; it costs us, the honest customers. The price is put up because of the losses. So the idea that the shop has to bear the loss is quite ridiculous.

I think that a real villain will work out whether it is worth having a go to steal something worth £75 or over, if he is going to be caught and then fined only a certain amount. It is rather like putting your money on the pools. You make a balanced judgment. So I think that there is great merit in the new clause, but we have to be careful of the fixed penalty.

I feel very often that barristers, counsel, suggest to their client "If you go before a jury you will get off—. I think that is one of the reasons for what happens. Of course they will all deny it, and naturally any Members of your Lordships' House who have to declare an interest will deny it. But to me there is little doubt that there is a good case for saving the time of the higher court in the case of offences which can be dealt with easily and sharply. The only qualification I have is about the question of the penalty.

My Lords, before the noble Baroness sits down, would she agree that the advice a barrister gives to his client on the question of going to trial may depend very much on who is sitting on the Bench?

My Lords, I think that rather makes it worse. I remember that when I was sitting as a magistrate the street traders had got it weighed up. When they came into court in Great Marlborough Street and saw three women—and we were sensible judges—they would pass the bush telegraph out to the others saying "We have got three women in there today. Who is coming up next week?" The answer would be "Oh, so-and-so", to which the reply was "Oh, he is very easy meat". Your Lordships must know that people have their own assessments. Thieves and villains are not idiots. They are only idiots when they are caught.

My Lords, my noble friend Lord Elton, when he moved his amendment quite a time ago, referred to a point which I had made when we discussed a similar if not identical amendment on the Committee stage. That relates to the fact that under his amendment as it now stands, and as the amendment stood at the Committee stage, in no circumstances can a sentence of imprisonment be imposed—if this becomes law—in respect of any theft of less than £75.

Your Lordships have discussed the matter rather on the basis of one single offence, and you may well think that it is not necessary to consider imprisonment in respect of one such offence. But what is to happen in one of the two following cases, one of which I mentioned on the Committee stage? Suppose that a pickpocket—that is the type of person who commits this kind of offence—robs in the course of a lucrative evening eight or 10 people of money, watches or anything else worth about £60 each. As I understand the amendment, those would be separate charges and in respect of none of them could the person concerned be sent to prison, because he would not have committed any one offence in respect of theft worth more than £75.

The other example is the case of the persistent offender when it is the second, third, fifth, fifteenth, twentieth or thirtieth offence of this kind with which he is charged. There are petty thieves, particularly of the pickpocket type, who, it would seem to me at any rate, should in many cases be sent to prison for a substantial term. They will not be discouraged by a fine. If they are making quite a good living out of minor thefts, even if they are fined quite substantially, they will regard the fine perhaps as nothing more than the tax paid on their earnings. At the present rates of taxation on high earnings, the fine would probably amount to less than the income tax on somebody's high salary.

This amendment is surely incomplete as it stands. I understood my noble friend to admit that when he said that he had hoped that Her Majesty's Government would put down a further amendment to deal with these points. He rightly drew attention to the fact that Her Majesty's Government have not done so. That presents your Lordships with a simple question. Are we prepared to say that, however many thefts are committed either at the same time or in succession in respect of items worth less than £75, the person concerned cannot be sent to prison? If your Lordships do so decide we shall see a substantial increase in the very large contemporary volume of petty thefts. For that reason if the matter stands as it now stands I should feel bound to vote against the amendment of my noble friend.

My Lords, most of us would agree with what the noble Lord, Lord Boyd-Carpenter, said, but it is not on the point of this amendment. The amendment concerns how somebody should be tried. If the effect of that trial means that certain sentences which are passed would be inadequate, it is for the Government to put that right.

My Lords, if the noble Lord will look at the amendment he will see that it prescribes that the only penalty for conviction for such an offence will be a fine.

My Lords, if that is so I have not entirely followed the amendment. I am sure that the noble Lord would correct it. On the principle of the thing, I find myself on the noble Lord's side. I was very much involved in the tragic case of Lady Barnett. I was a close neighbour of hers and I knew her very well. She was a beautiful woman, and most intelligent and charming. She did a great deal of public service. She had a charming husband, but a defective son, to whom most of her life was devoted.

When this awful thing was hanging over her one of the people who was loyal to her throughout. and whom I admired enormously for it, was the first wife of the noble Lord, Lord Elton. She was a very loyal friend to Lady Barnett. I feel equally with the noble Lord, Lord Boyd-Carpenter, that if there had not been the hanging about that is involved in a jury trial. Lady Barnett might have got over her difficulty.

On the question of the advantage of a jury trial, I agree that it very rarely affects the result. The result is normally what the judge wants, directs and leaves. But a jury trial has, if I may say so, the effect of enormously improving the behaviour of a judge. Judges without jury are often quite intolerable. They have nobody to play to. It can be a penance to have to conduct a case in front of a judge in those circumstances. If there is a jury, they play to a jury and they are apt to behave themselves.

I put it in that way. But as regards these very small cases the whole emotional build-up to the trial is a weight which I do not think should be put on people who are charged with trivial offences. Of course the pickpocket and the perpetual offender should he liable to a proper penalty but that can be adjusted.

My Lords, a few minutes ago the noble and learned Lord, Lord Hailsham of Saint Marylebone, referred to the debate that we had in this House 10 years ago on exactly this question. I then, as he rightly said. defended a Bill which contained a proposition of this kind. It was not a question of an amendment being moved but of its being a proposal of the then government. Like the noble and learned Lord, Lord Hailsham, I apologise to the noble and learned Lord who is not able to be with us today, but it is an open secret that the Lord Chancellor's Department at that time was far more enthusiastic about the proposition than was the Home Office.

When this matter came to this House it did so in the context not only of severe criticism of the then government because of the proposal—the figure was then £20 rather than £75—but it met with a storm of criticism in this House. That criticism was led by the late Lord Morris of Borth-y-Gest and the noble Viscount, Lord Dilhorne. I think it is right, in view of the fact that two noble and learned Lords have spoken in favour of this amendment, to remind the House, particularly those Members who were present, what Lord Morris of Borth-y-Gest said, because it comes to the central issue of principle which we are discussing this afternoon.

I quote from Col. 672 of the Official Report of 27th January 1977. The noble and learned Lord was moving an amendment at that time to exclude the particular provision from the Bill. He said:

"Take the case of a man charged with stealing a £5 note. Supposing he says, 'I am entirely innocent, and I want this matter investigated in the way in which it has always been possible for someone placed as I am to have it investigated'. He may say, 'I can well understand that there were circumstances which caused some people to take a mistaken view. I can well understand how it comes about that I was charged, but I am absolutely innocent, and I want to run no risk whatsoever. I want to have this case fully investigated. I want to have the case for the prosecution developed so that I know fully what it is. If I go for trial I will have a professional judge, and there will he 12 of my countrymen who will be deciding whether I am guilty or not. I am convinced that they will, without doubt, say that I am innocent'".

That was what the noble and learned Lord said on that occasion. I am bound to say that I found that and the rest of his speech almost entirely persuasive, and for rather different reasons, as the noble and learned Lord, Lord Hailsham, will recall, did the then Lord Chancellor. He eventually accepted the amendment and it was as a result of that excluded from the Bill.

I remember the briefing I had then from the Home Office on this issue. The research indicates that it does not make an enormous amount of difference whether a trial is held at a magistrates' court or at a Crown Court. because the percentage acquittal rates are remarkably similar. But that is not the central issue. If I may say so, the central issue is the one which the noble Baroness raised half an hour or more ago in relation to a shoplifting charge.

On the rare occasions that I have sat in court and heard cases of that kind being argued I have often found the issue to be extremely evenly balanced. What was the motive of the woman who it is alleged stole some groceries? I think that if that woman feels that her whole reputation is at stake—that is what we are discussing, a blameless reputation—she is entitled to a jury trial if she wants one. She may be mistaken, but in my view she should have the absolute right to insist on a jury trial. It would be a profound error were we to pass this amendment. We should become involved in some absurd discussion regarding the price of the goods involved, whether they amounted to £74 or £76. That is especially so when, as the noble Lord, Lord Boyd-Carpenter, pointed out, there are other implications in the amendment, particularly in relation to the penalties which can be exacted.

I return to the central issue. If a man or woman believes that his or her entire reputation is involved, it would be wholly wrong for us to prevent them facing trial at the court of their choice.

My Lords, I opposed this amendment, in a slightly different form, in Committee. The amendment has the support of three of the noble and learned Lords on the Cross Benches and of my noble and learned friend Lord Hailsham, and therefore one has to approach the reasoned justification for the amendment with some care. The whole argument in justification, which I propose to suggest is entirely flawed, warrants the most serious and careful attention.

In opposing the amendment, I have much in mind the mild reproof so aptly delivered by the noble and learned Lord, Lord Lane, in Committee, that we should not indulge in "any sort of histrionics". I accept that emotive content ill serves any process of reasoning, and that we must approach this subject, for there are two points of view, on the basis of reasoning and nothing else.

I agree with my noble and learned friend Lord Hailsham that the examples given by the noble Lady, Lady Saltoun, would, if she were charged, have resulted in an acquittal in any form of trial. But that, perhaps, is beside the main point of the discussion. This is a matter upon which I feel deeply, but I shall keep my personal feelings out of it. To shorten the matter, I wish to support, for the sake of the record, everything that has been so ably said by the noble Lords, Lord Mishcon and Lord Wigoder, and to accept their process of reasoning which was moderate and closely put together.

What is the justification? In effect, on analysis, there are three heads, the first of which is to relieve overcrowding in prisons. But other means are available, and it would assuredly be possible to limit first convictions for these offences, where the value is under £75, to a fine, even if convicted on indictment before a jury. Therefore, the logic of that argument, I submit, is flawed, and the logic of each head of argument for justification is flawed.

In any event, the amendment is not apt to deal—and this is the crucial point on this form of drafting, taken first by my noble friend Lord Boyd?Carpenter—with a series of similar charges or with the persistent offender when a sentence of imprisonment, albeit suspended, is the only appropriate sentence.

The second justification is to relieve the congestion in Crown Courts. Other means must be found which do not dilute the quality of justice.

The third and last head is the saving in public expenditure in the context of jury trials, which the noble and learned Lord, Lord Lane, tells us cost some £4,000 a day. The noble and learned Lord said:

"On any rational basis, sentiment apart, trial by the justices, with no option for jury trial … seemed to be the obvious answer",—[Official Report, 26/10/87; col. 373.]

but surely if and only if costs are the predominant concern. Again, I respectfully submit that the argument is flawed because in this matter cost should never be the predominant concern. It is understandable if one takes the standpoint that cost is the predominant concern, as the noble and learned Lord did when he referred to jury trial as a luxury. But I do not, with respect, take that standpoint. It is for that reason that I suggest that the argument is flawed. If it is a luxury where the value of the goods stolen is £100, I suppose that it is no doubt an extravagant luxury to have a jury trial where the value of the goods stolen is £75.

In Committee, the noble and learned Lord, Lord Lane, referred to stealing milk bottles and shoplifting a tin of beans. But the value of such matters is no more than £1 or so, and the amendment goes far wide of any such minimal mark. There is no proposal before your Lordships in this amendment, or in any other, to limit the value to, say, £5—a few milk bottles or a tin of beans—or to establish some sort of petty pilfering offence triable by magistrates. That proposal is not before your Lordships and it is not involved in this amendment. Therefore, the reference made by the noble and learned Lord was quite beside the effective mark.

I suggest that the rational objection to the amendment rests upon some simple propositions. First, the essence of this offence is dishonest intent in circumstances where a conviction can not only change a man's life but alter his whole way of living and adversely affect his means of livelihood with grave social and other consequences.

Secondly, objection is taken because if it is right, and it is assuredly right, that the essential factor is dishonest intent, must it not inevitably be wrong in principle in such circumstances to treat the value of goods stolen as a determining factor to exclude trial by jury?

I am interested to know the answer when my noble friend replies to each of those objections, which I hope are reasoned objections, and which are not put forward in any emotive vein.

The third simple proposition is that trial by a stipendiary (a single professional) or by a Bench of magistrates on an issue of dishonest intent affords no substitute, in the eyes of the accused, for the safeguards of the composite wisdom of a jury. Other points have been made respectively by the noble Lord, Lord Wigoder, and the noble Lord, Lord Mishcon. They stand on their record. They are valid points and require no repetition.

The last objection to the amendment is that the incidence of the exclusion is arbitrary, haphazard and wholly unacceptable. It is wholly unacceptable that an absent-minded professor who walks out of a bookshop forgetting to pay for a book to the value of £74 has no trial by jury; and if the value is £80 has a trial by jury. In those circumstances, if value is to be the crucial issue determining whether there will be a jury trial, then on the border-line cases one will be driven to a preliminary trial on the issue of value—how absurd, what a waste of time, how arbitrary, how unsatisfactory.

For these reasons, which I hope are sufficiently reasoned for your Lordships, I hope that the House will not accept the amendment.

My Lords, in my opinion, the debate has gone on much too long as lawyers' debates tend to do.

As the noble Lord, Lord Campbell of Alloway, said, the noble and learned Lord, Lord Lane, the Lord Chief Justice, described juries as a luxury. They may he. What is real luxury is prison. We cannot afford to send petty offenders to prison on the scale that we do. I have been working all my life to try to stop this—the situation has become steadily worse with crimes getting pettier and pettier and sentences more and more frequent. Therefore, I could not support my noble colleagues by voting against the amendment. The amendment is not correct in my view and needs a good deal of handling, but I shall certainly not vote against it.

My Lords, when my noble friend Lord Elton raised this matter on Second Reading and in Committee I thought it right to approach it with an open mind. During the Committee debate and again this afternoon powerful arguments have been made in support of my noble friend's amendment and equally powerful ones against it. I do not need to weary your Lordships now by repeating what other noble Lords have already expressed most persuasively. But I have taken very careful note of what has been said.

I sense that there is considerable agreement that by and large minor cases of theft can and perhaps should be tried in the magistrates' court. My noble friend Lord Elton and other noble Lords have drawn attention to the sizeable reduction in Crown Court business and, to a lesser extent, the prison population, which would be effected by the amendment. Other noble Lords, including the noble Lord, Lord Wigoder, have rightly pointed out that there would be a corresponding increase in the workload of the magistrates. I sense that there is somewhat less widespread agreement about whether a tine of £1,000 is the right maximum penalty. Some noble Lords, including my noble friend Lord Boyd-Carpenter, have argued that while this may be adequate for first-time offenders more severe measures are required for persistent offenders and especially the "professional" petty thieves.

My noble friend Lord Elton said that his case was absolutely indisputable

"if all other things were equal".

But of course not everything else is equal in this world.

Where I detect a profound difference of view is in the issue of principle which lies at the heart of the matter: the availability of jury trial for those charged with offences of dishonesty. Many noble Lords have argued—and opinion has certainly not split along party lines—that it would be wrong to remove jury trial from an offence which society views with such seriousness and which carries with it a special stigma; a conviction for theft, albeit a minor theft, is sufficient to destroy a person's good reputation. I should say that I should not myself defend this view with quite the passion which has been elicited by, in particular, the noble Lord, Lord Mishcon, and my noble friend Lord Campbell of Alloway. I think it is right to acknowledge that many offences are entrusted to the magistrates to try, including some which can have a damaging effect on a person's career or reputation. But I am bound to recognise the force with which noble Lords from different Benches in your Lordships' House have opposed the amendment on the deeply and sincerely held belief that it is wrong in principle.

I answer now the question of my noble friend Lord Elton about legal aid savings. We estimate that if 10,000 petty theft cases were transferred from the Crown Court to the magistrates' court, the reduction in legal aid expenditure on those cases would be of the order of £2·8 million. Whether such savings would materialise in any particular year is dependent on whether other cases are brought on earlier.

My noble friend Lord Elton has done the House a great service by raising this most important and difficult matter in a way that has enabled it to be thoroughly analysed and explored in debate. I believe that the issues are finely balanced. I am bound to say, however, that the very strong doubts that noble Lords have expressed and the absence of general agreement on the principle underlying the amendment make me doubt whether it would be wise to add such a provision to the Bill at this stage in its progress. In the clauses that we have earlier agreed, we shall be providing some much needed relief for the Crown Courts. I should prefer to leave it at that. Much though I sympathise with my noble friend's motives in bringing forward this proposal, I therefore hope he will not press it to a vote; and, if he does so, I fear that I could not advise your Lordships to amend the Bill as he proposes.

My Lords, I am deeply grateful to those noble Lords who have supported the amendment. I am almost equally grateful to those noble Lords who have resisted it, thus bringing into the open the forces that I have to overcome. It is always easier to defend an enemy that one sees.

The noble Lord, Lord Harris of Greenwich, put me in a new position. Members of another place have often been quoted to me but never members of still another place, as the late Lord Morris of Borth-y-Gest now sadly is.

My noble friend Lord Campbell of Alloway—I shall speak only briefly to his speech—said that in making imprisonment available on subsequent offences but not on the first offence we should relieve the pressure on the prisons. Relief of pressure on the prisons will come not from a change in sentence for the offence; but as a result of relief of the load on the Crown Court that will come from converting the offence into a summary offence.

The noble Lord, Lord Wigoder, reminded your Lordships that magistrates too are very busy. It is difficult to give an exact comparison of statistics with those that I have given for the Crown Court. If your Lordships refer to Issue No. 33 of the Statistical Bulletin published this year by the Home Office. they will see in table I that the average time from charge to completion on an indictable offence is 74 days, on a summary non-motoring offence, 54 days, on a summary motoring offence, 71 days and on all offences, 68 days, compared with 98 days in the Crown Court.

A number of your Lordships said that to be charged with this offence is the worst possible slur on a person's character and that magistrates are not up to taking a decision on such matters. In fact, magistrates take a decision whether or not to send someone to prison for six months under the Rehabilitation of Offenders Act and I do not doubt that they do so in other respects. These are relatively minor considerations.

My noble and learned friend Lord Hailsham said that sooner or later we shall have to grasp this nettle. He is doubtful whether we shall seize it in this form. I said at the Committee stage, and I repeated it in my introduction, that I believed that there was room for improvement in this amendment because it did not tackle the question of cumulative offences nor did it tackle the question of the aggregation of values in individual offences tried together. I asked about that at the beginning of this debate. I had hoped that the Government would give us a line on this matter, but they have not. Therefore this is something which I shall have to take on board myself and I cannot do it at this stage.

I shall consider coming back to your Lordships at Third Reading, making these provisions and collecting several of my noble friends and the noble Lord, Lord Paget, on the way. I repeat that justice delayed is justice denied. Magistrates' courts deliver justice. When I return, if I do, at Third Reading I shall have no hesitation in running up the flag that the noble Lord, Lord Mishcon, ran up so often in engagements with me in the past by reminding the people sitting behind him, when he makes his points again, that this is not a party political issue and that they should vote according to their views.

My Lords, before the noble Lord sits down, will he kindly remind me of any sentence that I uttered which made this a party issue? Does he remember that the noble Baroness, Lady Phillips, rose in the course of this debate and very resolutely, as is her way, opposed everything that I had said?

My Lords, reversing the words of the noble Baroness makes it better. I beg leave to withdraw the amendment.

My Lords, with the leave of the House, I shall now repeat a Statement which has been made in another place by my right honourable friend the Secretary of State for Transport about the fire at King's Cross Station last night. The Statement is as follows:

My Lords, the whole House will be grateful to the Minister for repeating this Statement given by the Secretary of State. Although little of practical value can be said at this stage, it provides an opportunity for the whole House to join with the Secretary of State and the Government in expressing sympathy to the families of the 30 persons who have died and to the many who are injured, some of them critically.

It also provides an opportunity for every noble Lord to join in the tribute which has been rightly paid to all members of the emergency services which were listed in the Statement. It refers to their dedication. This is instanced by the fact that one member of the fire service has lost his life and a member of the police service has been critically injured. I was very impressed, as I am certain were other Members of the House, by the report made during the radio news this morning that all grades of members of the hospital services returned to duty without being recalled to their respective posts.

I am very pleased that there is to be a formal investigation in public and that it will not only establish the causes of the disaster but will also make recommendations. I am also pleased to note that the full report will be published. This will be a vital inquiry. I hope that not only will the causes be looked into but that there will also be investigation into structural factors which may be involved.

I share the tribute paid to the London Transport staff. I hope the investigation will look into the kind of training which is given to the London Transport staff, because they are always the first people who have to be on site when a tragedy of this nature occurs.

The Statement also refers to the excellent record of the London Transport Underground service, and I am sure we all share that view. It also refers to the way in which various sections of the management have endeavoured to return services to as near normal as possible. I am grateful for the Statement and I share in both the tributes and the expressions of grief.

My Lords, from these Benches I also thank the Minister for repeating the Statement. The whole House and the nation will have felt a deep shock at the tragedy which struck last night to people going innocently about their purposes through the mundane job of simply getting home from the office or going for a night out. It is terrible to think that people left their homes and families yesterday morning and that a number of them simply did not return. It is also tragic that a number of them did return but will never be the same again because of the awful injuries they sustained.

Not unnaturally, there is a sense of rage at the casual nature of this tragedy and a sense of impotence that we are unable to do very much about it today. There is a great danger in these circumstances of making instant comments and of coming to instant judgments. There has been a lot of wild speculation in the newspapers. I do not think the press has acquitted itself particularly well today.

We would all like to ask questions; we would like to know something about the adequacy of staffing levels and of training; we would like to know some of the reasons for the rapid transfer of the fire to other parts of the system and about the flammability of some of the materials. These are questions which will be put to the inquiry and will be dealt with by it.

The Government are to be congratulated on the speed with which they called this inquiry into being, on the fact that evidence is to be taken in public and also on the fact that the results of the inquiry will be made public.

I also join in the admiration which has been expressed for the fire, police and ambulance services and the Underground staff. There were undoubtedly many examples of great heroism shown last night. It is something of which those services can be proud. The nation mourns those people who have died. We want the inquiry to find out whether there was any real reason for this tragedy or whether it was a random lightning strike. We all wish to make sure that nothing like this ever happens again. We thank the Minister for his Statement.

My Lords, I am most grateful to both noble Lords for their reception of the Statement. I join in the tribute to the marvellous work done by the emergency services last night and I am sure that all noble Lords would wish to do that.

The inquiry will be a thorough one. It is required under the Act to investigate the cause of the accident and all the circumstances attending it and to report on these and any other relevant matters. Of course that will include any recommendations designed to prevent a recurrence. I confirm to the noble Lord, Lord Underhill, that that will include the adequacy of training of LRT staff.

With regard to speculation in the press, I agree with the noble Lord, Lord Tordoff. I am not going to speculate about what might have been the cause of the accident; that will be for the preliminary inquiry of the LRT, the fire services and the police themselves, which will then report to the main inquiry. However, if anything is found which needs urgent attention, I give an assurance that urgent attention will be given to it without waiting for the inquiry to report.

moved Amendment No. 41:

Page 27, line 4. leave out subsection (4)

moved Amendment No. 42:

Before Clause 41, insert the following new clause:

My Lords, I must apologise to your Lordships for my delay in speaking to this amendment but I was held up outside the Chamber. Perhaps I may say a few words about it because I moved it in Committee.

I begin, in deference to the noble and learned Lord the Lord Chancellor, by quoting a few words from the noble and learned Lord, Lord Kilbrandon, in the case of Hyam. I do not know whether this has already been quoted. He said:

"It is no longer true, if it ever was true, that murder is necessarily the most heinous example of unlawful homicide".

The majority of murders are committed within the family environment, usually by persons of hitherto good character and often in situations of great deprivation or overwhelming stress. Those cases in no way merit a life sentence and such persons tend to be released at an early stage in their sentence, often giving rise to ill-informed public disquiet and a disruptive sense of injustice within prisons. Surely a sentence should always reflect the incidence of the offence.

Another matter which arises is that artificial ways round a mandatory sentence have grown up and have created a happy hunting ground for criminal lawyers on the scent of doctrines of provocation, self-defence and diminished responsibility in order to reduce such charges to manslaughter. The law is constantly bent, as I am sure the noble and learned Lord the Lord Chancellor well knows, often with the blessing of the judge, the lawyers and the medical witnesses to see that proper justice is done in a case where all concerned are anxious that a verdict of murder should not be registered in that case.

I suggest that this is undesirable and dilutes the deterrent effect of the ultimate sentence. It also puts one type of offender into an impossible dilemma. He who denies the act of killing itself therefore cannot set up a defence of diminished responsibility if in fact he is a person who is in some way mentally affected. If he is convicted, nonetheless, he cannot then receive a psychiatric disposal.

The time served by a life prisoner for murder will at present vary greatly, many being released on licence long before those serving life for more serious offences such as rape, arson or robbery. Many judges on the Bench would strongly welcome an unfettered discretion to sentence appropriately in cases of murder and to be spared the unpleasant and often apparently cruel task of imposing a life sentence on someone who will in fact be released in only a few months.

I am sure that the speech of the noble Lord, Lord Windlesham, made in Committee has already been referred to, but he and a number of his noble friends took the view that this amendment showed a disappointing reluctance to go further and abolish entirely the distinction between manslaughter and murder, having but one offence of unlawful killing. I assure the noble Lord that we are not timid but rather judicious; and surely with this amendment the Government would have no excuse to defer a decision on the grounds that the Law Commission or some other galaxy of lawyers would settle down to gnaw away at this bone for the next two or three years.

In Committee we heard many of those favourite phrases from the Minister, reading his official brief, about "leaps in the dark", "radical upheavals" and "risky courses". I would suggest that none of those is appropriate for this amendment as it stands. If the House accepts this amendment (as I hope it will) it might well be desirable to introduce at a later stage a ceiling on the determinate sentence of, say, 25 years, reserving a life sentence for offences deserving of a penalty in excess of that maximum.

Equally, I would suggest that it might well be wise to implement the suggestion of the all-Party penal affairs group with the introduction also of a reviewable sentence, as recommended by the Butler Committee, for dangerous offenders with a history of mental disorder who do not qualify for compulsory hospitalisation. Those people are at the moment given what is often called a merciful life sentence on the basis that they will be let out when the authorities think it wise to do so. That again perhaps is not a very appropriate way of dealing with them.

The amendment clearly follows a recommendation by the Butler Committee, the advisory council, a substantial minority of the Criminal Law Revision Committee, and most recently the all-Party penal affairs group. I have great pleasure in supporting it.

My Lords, perhaps I may briefly record support for the principle of the amendment on the basis of the reasoning that has been advanced without repeating my support for it at Committee stage (at cols. 424 and 425) of Hansard.

My Lords, I oppose the amendment. Murder is still murder, and the judge who has to decide the sentence for it has a most difficult task. Is it not right—as when it was a capital offence. so now—that the sentence should be declared by the law? The present word is "sentenced", and it should remain.

My Lords, as the noble Lord, Lord Hutchinson of Lullington, has said, I spoke at Committee stage in support of the proposal that life imprisonment should become the maximum rather than the mandatory sentence for murder. I therefore support this amendment.

I do not want to repeat what I said then. What I intend to do today, which I hope will be of some assistance to the House, is to outline in some detail the case for making changes in the way that life sentences are administered. But I think the better place to do that is on the next amendment, Amendment No. 43. In the meantime, I would simply say that this amendment is desirable. As the noble Lord, Lord Hutchinson of Lullington, pointed out, it falls short of the more radical approach towards a reform of the law of homicide, but it is certainly a substantial improvement on the present situation and should be supported for that reason.

My Lords, while I have a lot of sympathy with the amendment, it raises only one small part of a very much larger problem. The problem is being dealt with piecemeal, whereas it needs to be dealt with in its entirety. In saying that I refer to the offence of murder.

The present law of murder is in a most perplexing position. The noble Lord, Lord Hutchinson, mentioned R v. Hyam, a case decided some 17 years ago. It has a nostalgic flavour because I was the judge who gave the direction which has given rise to a fair amount of dispute over those 17 years. The problem arises because one part of the ingredient of murder, is not only an intention to kill but an intention to do grievous bodily harm. The case of Hyam was a dramatic case. A discarded mistress, anxious to scare away the woman who had taken her place, poured petrol through the letterbox then put a newspaper through the letterbox, using that as a means of igniting the petrol by setting fire to the newspaper. Her alleged intention was merely to scare away the rival. She drove away having made sure that the house was on tire. The net result was that the rival escaped with one son unharmed. Two children were burned in the fire.

The direction that I gave was that if the defendant knew it was highly probable that she would cause grievous bodily harm to anyone in the house that was sufficient, and the jury convicted by 11 to one.

That was supported in the Court of Appeal and by a majority of three (query four) in the House of Lords. Very recently there was the case of Maloney in 1985. This was an odd case in which a stepfather challenged his stepson after they had been drinking too much to a contest as to who could load and fire a gun first. In obiter dicta in your Lordships' House—it was not necessary for the decision—it was indicated that Hyam had confused intention with foresight. That approach was followed by your Lordships' House in Hancock, a case which noble Lords will remember occurred during the miners' strike when two lumps of concrete were thrown over a bridge. Very recently there was the case of Nedrick (which was a male Hyam) who put paraffin through the letterbox, and then set fire to it resulting in the death of the woman with whom he said he merely wished to level a score. He was convicted of murder, but on appeal manslaughter was substituted.

The law is in an unsatisfactory position. It needs to be reconsidered. As I think my noble and learned friend the Lord Chancellor knows, it was the subject-matter of a very impressive paper given by my noble and learned friend Lord Goff of Chieveley in a lecture in Israel which is about to be reproduced in the Law Quarterly Review. This underlines how necessary it is to consider introducing the words "wickedly reckless" which are used in Scotland and taking out of our law the intention to do grievous bodily harm.

I would submit to your Lordships' House that until the offence of murder has been properly considered, to tinker with the mandatory sentence now on the basis that the law is unsatisfactory as it stands because under the cloak of murder so many types of activity are comprised, is a premature activity which should not be undertaken. If the matter is left, it may stimulate what I hope will occur, and that is very necessary: that the Law Commission undertake a review of this offence as soon as possible.

My Lords, the Criminal Law Revision Committee, in considering the topic that is the subject-matter of this amendment, said:

"Indeed it is uncertain what sentencing pattern the change would produce".

That is that this particular change would produce.

"we, the majority, think that the adoption of such a course would be a leap in the dark which ought not to be taken especially in the present situation with regard to crimes of violence generally".

I think this shows that, although my noble friend Lord Caithness was accused by the noble Lord, Lord Hutchinson of Lullington, of reading the phrase from the official brief, the truth is that it was not quite as original as that. It had already been used by the Criminal Law Revision Committee, and used carefully, and in the light of a very careful consideration of the difficult problem which this amendment raises.

However cautioned against reading too much from the official brief, I just summarise the position as I should like to put it before your Lordships. One has to remember the history of the matter. As I listened to the debate being opened, I could not help remembering the opening words of the speech of Dean of Faculty Inglis defending Madeline Smith in July, 1857. Your Lordships will remember that he began by saying:

"Gentlemen of the Jury, the charge against the prisoner is murder. and the punishment of murder is death: and that simple statement is sufficient to suggest to us the awful solemnity of the occasion which brings you and me face to face".

I believe that although that was quite a long time ago, the crime of murder is still a crime which has a very special place in the attention of our people. I accept that the circumstances in which people are convicted of murder may vary greatly from occasion to occasion. That point has been well taken by a number of your Lordships. Certain defences have been open: the defence of self-defence—not in order to bring the charge to one of manslaughter but, if successful, to acquittal altogether—and certain defences such as diminished responsibility, which have the effect of reducing the charge to manslaughter.

My noble and learned friend Lord Ackner has pointed out the difficulty which now surrounds the definition of the charge of murder. That difficulty is reflected when one looks at the various circumstances in which people may be convicted of murder. I have had the privilege of seeing both in draft and in its finished product the very interesting and thought-provoking lecture which my noble and learned friend Lord Goff of Chieveley delivered as the Lionel Cohen lecture in the Hewbrew University of Jerusalem in May this year. In my opinion that lecture makes a very important contribution in relation to the development of the law in this area.

I think that simply to introduce this change without doing more would put a tremendous responsibility on our judges. It would do so without any guidance whatever as to how the public regard the various levels of murder that might occur. It would widely be seen as a weakening of the law in relation to crimes of violence at a time when crimes of violence are certainly not on the decrease.

Since the debate in Committee, my right honourable friend the Secretary of State and some others of us have been giving very careful consideration to this subject. There is no doubt that it is an extremely difficult subject and one upon which there are many different and reasonable opinions, and some of them have been manifested in your Lordships' House this afternoon. This being a lawyers debate—having regard to what was said about lawyers—I shall be brief, so I shall not attempt to summarise all the different views that exist. There is no doubt that there are a number of different views, all eminently respectable and held by people with different experience and different authority in this field. All these views merit consideration and I believe they merit very close consideration before any substantial change is made in this area of the law.

The Criminal Justice Bill is a very extensive measure which already contains a good deal of controversial matter as your Lordships' debates at Second Reading, in Committee and on Report show. I venture to suggest that it would not give this subject the prominence that it deserves to attempt to deal with it by way of an amendment now, particularly in the absence of any real consensus developed upon this difficult question. Although I thoroughly understand the arguments put in favour of the amendment. which I see have a great deal of force, there are a great many other arguments in the opposite direction. It would not be right at this stage to pass the amendment. I believe that the law in this area requires review and very serious consideration. The precise machinery of review is a matter on which your Lordships' views would be important. I look forward to hearing what noble Lords have to say about that when the other amendments touching on the same matter are debated this afternoon. I certainly and very definitely suggest that it would not be wise to pass the amendment.

My Lords, we have all listened with great attention and care to what the noble and learned Lord the Lord Chancellor has said. What he said followed a speech from the noble and learned Lord, Lord Ackner to which we also gave great attention. As I understand it, that speech ended with a suggestion, with some urgency behind it, that the Law Commission should immediately examine the very difficult field to which the noble and learned Lord the Lord Chancellor referred and to which the noble and learned Lord, Lord Ackner, and others referred in the past.

Is the noble and learned Lord able to tell the House that at an early opportunity the Law Commission will be asked to deal with this matter with a view to our seeing its recommendations and considering the whole matter, as the noble and learned Lord suggested, in one light?

My Lords, with leave of the House, I am not in a position at this moment to indicate exactly how this might best be attempted. The Law Commission is an obvious candidate for carrying out such a review. As the noble Lord, Lord Mishcon, well knows, there is also in existence the Criminal Law Revision Committee, which has considered this matter. The best form in which this issue might be taken forward is a matter upon which the Government have not been able to reach any decision. This afternoon I am not able to say precisely what ought to be done. I submit that something ought to be done before the amendment would be regarded as right to pass.

My Lords, as this has almost accidentally become my amendment perhaps I should reply. It seems to me that the noble and learned Lord has managed in a sense to change the question from whether a life sentence is necessarily appropriate for a conviction for murder to whether there should be a radical look at the whole offence of murder and the offence of culpable homicide. As I understand it—although in Committee we discussed the broader question—the amendment is purely on the issue of whether it is appropriate that all people properly convicted of murder should receive a life sentence. I remind your Lordships that among others in Committee the noble and learned Lord, Lord Roskill, was very clearly of the view that this caused considerable difficulty in his experience as a judge. I should have thought that if we are to have a general review it may be encouraged by your Lordships' House voting in favour of the amendment. Therefore, I think it is appropriate that the views of your Lordships' House should be sought.

moved Amendment No. 43:

Before Clause 41, insert the following new clause:

My Lords, I rise to support the amendment extremely briefly because the proposition has been so ably covered by my noble friend. I shall presume to repeat to your Lordships on Report what I told those noble colleagues who were present at the Committee stage. I spoke then of my own personal experience in the early years of the Parole Board when such cases as we are now considering came before it. I said then that this had an extremely inhibiting and indeed almost prohibitive effect on our deliberations on the "merits" of the cases, if that is the right word, and on the favourable circumstances which may well have obtained—and did obtain—a considerable number of years after sentence had been passed.

I recalled to the Committee a considerable number of such cases on which the label of a minimum term had been placed by the sentencing judge but as regards which nevertheless, despite that inhibiting factor, we saw fit to recommend to the Home Secretary after an appropriate interval of time release on life licence. In the six years that I was chairman of the Parole Board I recall only one such case which received release on life licence.

I make that point because we were dealing with all the cases of life sentences for the offence of murder. A number did not have such a minimum recommendation attached to them, yet the crimes as we saw them, considering the nature of the offences and their gravity, were considerably more grave than those on which the minimum sentence had been recommended by the sentencing judge. I concluded by saying that I felt then (and I feel now) that the procedure laid down in the Criminal Justice Act 1967, by which, following a favourable recommendation by the Parole Board, the Home Secretary has by statute to consult with the Lord Chief Justice and the trial judge in making his decision, is totally satisfactory and much fairer than the inconsistent application by some judges to some cases of the minimum recommendation. I am very much in favour of the amendment.

My Lords, I just wish to repeat the arguments that I have made previously on this point. The judge, in sentencing a man who has been convicted of murder, is expressing public opinion on the matter. The judges should carry public opinion with them. When it is a particularly horrendous murder the judge should express that opinion by saying and recommending that the man should not be let out of prison until after 10, 15 or 20 years, whichever it may be. It is in answer to public opinion that the death penalty has now gone. On the other hand of course it can be reviewed, and I would deplore any private communications by the judge to the Home Secretary or anyone else as to what the length of time should be.

My Lords, I should like to echo what the noble and learned Lord, Lord Denning, has just said as to how we should address ourselves to this subject. We need to accept the public must be reassured that persons who are convicted of murder—the gravest crime in the criminal calendar—are properly punished and are not returned to society too soon.

I want to contend this afternoon that the way the mandatory life sentence has evolved over the past 20 or more years has led to confusion between judicial and executive functions; a review procedure of ever-increasing complexity; and widening opportunities for injustice. I should make clear at the outset that none of this was planned or intended by this Government or their predecessors. It is simply, as is so often the way in our legal history, the way things have turned out.

If we go back, as we must, to 1965 when capital punishment for murder was abolished, it then became mandatory, as was explained on the previous amendment, for a person convicted of murder to be sentenced to imprisonment for life. Thus, uniquely, the sentence is not imposed by the trial judge; the sentence for murder is imposed by Parliament. It is simply pronounced by the trial judge. He has no power to vary it.

But the court may, at its discretion, declare the period of time which it recommends to the Secretary of State as the minimum period which should elapse before the Home Secretary releases the convicted person. That proviso is included in Section 1 of the Murder (Abolition of Death Penalty) Act 1965. Therefore we have here the first way in which the judiciary can influence the period of time to be spent in custody, although it is Parliament which has prescribed the sentence of imprisonment for life. As we shall see, successive procedural layers have been added in the years that have followed the legislation in 1965.

The objections we have heard from the noble Lord, Lord Hutchinson of Lullington, and from the noble Lord, Lord Hunt, one of my predecessors as chairman of the Parole Board, are that the practice is haphazard and inconsistent. Some judges use the power; other judges do not. It is generally employed by a sentencing judge to reinforce the denunciation and feeling, of abhorrence of society as a whole towards the circumstances of a particularly grave crime of murder.

However, it is not always so. In the case of the Moors murders—I say this in the presence of the noble Earl, Lord Longford, who has taken such an interest in the case—there was no minimum recommendation. In the case of the murder of Mrs. Mackay by the Hosein brothers, a most notorious case, there was no minimum recommendation. But let us cling on to one central fact: the recommendation is made in open court by the trial judge from the Bench at the conclusion of the proceedings.

My Lords, may I interrupt the noble Lord on one point? Can he tell us whether in fact in the cases he mentioned, and in other cases where there has been no public recommendation until recently, there were private communications and, if so, were they taken note of by the Parole Board?

My Lords, I should like to come to that when I describe the current procedures, including the private advice given by the sentencing judge to the Home Secretary. There has been a long-standing facility—as noble and learned Lords on the Cross-Benches who have tried murder cases will be aware—that at the conclusion of a murder trial the judge can write to the Home Secretary. That facility has become formalised in order to set a date when the case of a life sentence prisoner can first be considered for release on licence.

This difficulty does not arise with determinate sentence prisoners because those who are sentenced to a fixed term of imprisonment have a statutory right under the Criminal Justice Act 1967 to have their sentences reviewed after serving one-third, or a minimum qualifying period, whichever expires the later. This right to be reviewed at the one-third point, and annually thereafter, is not to be confused with the actual release of the prisoner which may, or may not, be granted at any stage between one-third and two-thirds of his sentence.

It has already been pointed out that some of the changes in parole practice which were announced by the then Home Secretary in November 1983 concerned life sentence prisoners. Instead of the timing for the first review being set by a joint Home Office/Parole Board committee, of which I was the chairman at the time (two noble Lords opposite preceded me in that capacity), the Home Secretary declared that he would look in future to the judiciary in the shape of the Lord Chief Justice and the trial judge, if available, for an initial judicial view on the requirements of retribution and deterrence.

When expressed in terms of a period of years that advice becomes the judicial tariff—if we use that word for the purposes of debate—in the case. Some three years before the expiry of the tariff the case is referred to the local review committee at the prison and subsequently to the Parole Board. I come now to the question put to me by the noble Earl, Lord Longford. It is at this stage that the Parole Board becomes aware of the advice on tariff that has been given by the trial judge to the Home Secretary, but not before.

When the Parole Board considers the case it does so primarily, although not exclusively, on the basis of the risk to the public if the prisoner is to be released on licence. If the Parole Board does not so recommend, then the Home Secretary has no power to release the prisoner. If the board does recommend in favour of release, then the final decision remains with the Home Secretary.

Parliament has never agreed that the ultimate decision should he transferred from him, as the Minister accountable to Parliament, to an appointed body. He does not have to accept the advice he is given. It is he who is answerable, and it is he who has the responsibility in the last resort. By law he is also required to consult, before releasing any prisoner, the Lord Chief Justice and the trial judge, if available, before doing so. Under the current procedures, this is the second judicial consultation. The first is to set the tariff, the second, perhaps many years later, is when the actual release of the prisoner is being contemplated. I apologise at this point for the complexity of what I have described. If, as I believe, life sentence procedures are becoming increasingly complicated and unsatisfactory, in this House we have an obligation to try and grasp in outline how they work in practice.

We are not at the end of the story yet. The latest superimposition on a far from straightforward procedure is that, in response to a decision of the Divisional Court in the Handscomb case, the judge is now being asked to write to the Home Secretary in every life sentence case, through the Lord Chief Justice, at the conclusion of the trial giving a view on the period of imprisonment necessary in the interests of retribution and deterrence. This requirement applies irrespective of whether the life sentence was mandatory, in cases of conviction for murder, or whether it was within the discretion of the court, as it is in cases of manslaughter and other offences which carry liability to life imprisonment as the maximum sentence. Noble Lords will be relieved to know that that concludes the descriptive part of my speech.

Where are we now? From 1st October 1987 there is a new situation. In all cases of murder there is the mandatory life sentence, imposed by Parliament, that cannot be varied by the court. As we heard on the previous amendment, this distorts the whole sentencing process. In particular, it throws undue emphasis on the defence of diminished responsibility. Most people who have studied the penalty for murder believe that without diminished responsibility, thrown in as a make-weight in the Homicide Act in the 1950s, the present system could hardly have survived at all. Now, no sooner has the trial judge pronounced the sentence, with or without a minimum recommendation, than he sits down to advise the Home Secretary in his private letter of the minimum period of imprisonment which, in his view, the circumstances of the crime warrant.

By this devious route we have arrived at precisely the position which was rejected in 1980 by the Criminal Law Revision Committee—referred to by the noble and learned Lord the Lord Chancellor—in their 14th Report (Command Paper 7844); namely, that recommendations in every case would inevitably come to resemble a determinate sentence. That is a powerful conclusion with which it is hard to disagree.

My Lords, I believe there is only one way out of the morass in the short term. I am encouraged by what the noble and learned Lord the Lord Chancellor has said about a longer-term review. He has told us that he is prepared to refer the law of murder, and the penalty for murder, for a more thorough and careful inquiry before committing the Government to legislative change. I support that and was pleased to hear what was said.

However, we need a short-term expedient. It seems to me that the right way to approach this, paradoxically, is to preserve the power which Lord Hutchinson's Amendment No. 43 seeks to remove, substituting a public recommendation in open court in all life sentence cases for the private advice which is currently given by the sentencing judge to the Home Secretary. Justice should be as open as possible. Often it is an ideal that is difficult to achieve, but here is a way in which it could be achieved.

I confess to some reservations about the appropriateness of attaching a judicial remedy to what is essentially advice as to how a Minister should use his executive authority. Nevertheless, if we are selecting the least objectionable alternatives and trying to evolve a defensible system until the noble and learned Lords' review can get to work, I accept that there is a case for judicial recommendations in open court to be subject to a two-way appeal to the Court of Appeal. That is the subject of the next amendment, Amendment No. 44.

For those reasons, it does not seem to me necessary to press Amendment No. 43. Indeed, to do so would shoot my fox because I want recommendations on tariff to be made, as I have argued, publicly in court at the conclusion of the trial, rather than privately in a letter to the Home Secretary. On the right to appeal, I am in sympathy with the broad aims of Amendment No. 44.

My Lords, I am afraid I have spoken for some time on this amendment, for which I apologise, but it is a matter of considerable importance.

My Lords, I welcome the noble Lord, Lord Windlesham, as a supporter of the next amendment, which is in my name. Therefore I have found much of his speech persuasive, certainly as far as the wholly unsatisfactory character of the present arrangements are concerned. The House has now had the advantage of listening to one of my predecessors as chairman of the Parole Board and also my successor. I do not quite know what the collective of Parole Board chairmen should be. Perhaps "a cell" would be the most appropriate. I think that all three of us who have dealt with this matter over a number of years have come to the conclusion that the present arrangements are profoundly unsatisfactory.

I do not share the view of the noble and learned Lord, Lord Denning, who is the only uninhibited opponent of this amendment we have so far heard this afternoon, who finds the idea of making a minimum recommendation extremely satisfactory because in his view it meets public anger, public anxiety, at the time of the trial and at the time of conviction.

That view is extremely difficult to support on the basis of the evidence, part of which was cited by the noble Lord, Lord Windlesham. If your Lordships look at some of the most notorious cases where people have been tried for murder and convicted, you will find that the trial judge did not make a minimum recommendation.

As the noble Lord, Lord Windlesham, rightly said, there was no minimum recommendation in the Moors murder case; there was no minimum recommendation in the Hosein brothers case—the murder of Mrs. Mackay. There was no minimum recommendation in the case of the M.62 coach bomb when Judith Ward blew to pieces a number of service families travelling on a coach. There was no minimum recommendation in the Birmingham bomb case either.

In all four cases there was no minimum recommendation. Yet in other cases which my noble friend Lord Hunt and the noble Lord, Lord Windlesham, will have seen—and I certainly saw— there have been minimum recommendations which attracted far less public concern than the four cases I have cited. The reason for that is as follows. A number of judges will now not make minimum recommendations. A number of previous judicial members on the Parole Board told me that they had not done so, and that they would not do so. Their view was that it was far better to leave the matter to the Home Secretary of the day, acting on the recommendation of the Parole Board. The present legislative situation is wholly understandable in the context of the political situation of 1965 when Parliament passed the Death Penalty Abolition Act. I find it far less satisfactory to have the situation remaining as it is on the statute book.

I do not think that one can exaggerate the effect that the minimum recommendation has on the Parole Board. Before the noble Lord, Lord Windlesham, became chairman, there was a committee of the board presided over by the chairman of the board. The vice-chairman was always a High Court judge and there were also a member of the board, a consultant psychiatrist and two Home Office officials. At about the three year stage they took a preliminary view as to how long a convicted murderer, or life sentence prisoner, would serve. I believe that the procedure was initiated by the noble Lord, Lord Carr, when he was Home Secretary. I think that there was a great deal of advantage in the system and I regret the fact that it was eliminated.

As a result, I must have considered over 800 life sentence cases. The idea that the minimum recommendation cases were by far the worst we considered was a view impossible to sustain. I became increasingly worried about the fact that my colleagues—understandably, in my view—took the view that if a judge had made a minimum recommendation they were bound to take the most serious view of it. Therefore, one had two categories of life sentence cases; those which were looked at upon their merits, and those which were not looked at wholly upon their merits. I think that that situation is unsatisfactory and it is time that Parliament changed it.

My Lords, with respect, the amendment is not acceptable for two short reasons. First, it would not be acceptable to the general public in the present state of the law, pending a general review. Secondly, as has been explained by my noble friend Lord Windlesham, would it not shoot his fox, which I find rather an attractive fox? That applies particularly to the form of Amendment No. 44 which I supported at the Committee stage. It is another matter if the recommendation is made in open court. I believe that Amendment No. 43 would not be apt. However, I accept the point that in this area there is a case for short-term measures along the lines of Amendment No. 44, pending a general review. I oppose Amendment No. 43.

My Lords, I hope that the noble Lord, Lord Hutchinson, will consider not pressing Amendment No. 43 and pressing Amendment No. 44. If one examines Amendment No. 43, one is saying that a judge should never express a view as to how long a life sentence should be. I believe that there is a difficulty in saying that; and, logically, a judge must be considered to have a view of the appropriate life sentence. The answer should be that all the recommendations which are now made privately should be made publicly, so that the person sentenced can appeal if he is so advised. I hope that that course will meet with the noble Lord's approval.

My Lords, I am sure that all noble Lords feel deeply indebted to the noble Lord, Lord Windlesham. I am wholly persuaded. Any recommendation made should be made in open court so that it is understood by the public and the defendant and—although this anticipates the next amendment—so that it is reviewable.

When dealing with the previous amendment, my noble and learned friend on the Woolsack invited comments as to how this matter—which is, at the moment, in a mess—should be reviewed. I am in a difficulty because I think that the Criminal Law Revision Committee has already committed itself to the view that the offences of murder and manslaughter should remain distinct and should not be amalgamated into one offence of culpable or criminal homicide.

In his draft criminal code, Professor Smith, in accordance with his usual practice and the universal practice, has not gone against that latest recommendation. Therefore, the draft criminal code, which is now being examined by the Law Commission, maintains that distinction.

I respectfully suggest that my noble and learned friend on the Woolsack might consider asking the Law Commission, in consultation with the Criminal Law Revision Committee, to look at the problem urgently and immediately and to present an interim report.

My Lords, I am entirely in agreement with what has been said by the noble and learned Lord, Lord Simon of Glaisdale. Having been thoroughly converted by the noble Lord, Lord Windlesham, I find it hard not to be allowed to vote on his amendment and I feel strongly about that.

My noble and learned friend put forward the idea that the sentence should be the subject of comment by the judge, and it would be wrong to say that he should not make a comment and recommendation on it. It is not the judge's sentence; it is Parliament's sentence. The judge has no discretion about the sentence so why should he make a recommendation on a matter which is not his responsibility?

A point which has always weighed on me is that when the matter goes to the committee of the noble Lord, Lord Windlesham, two issues must be considered. First, what was the crime; secondly, what has happened to the man since? Has he changed? How has he changed? The judge's recommendation can only be based on the first question, so one is asking the Committee to accept the worst evidence. It is evidence which is no longer relevant because it comes from a man who has considered only half of what should be considered.

I hope that the noble Lord. Lord Windlesham, will give the House an opportunity to vote on this amendment. I have heard the observation of the noble Lord who sits behind him to the effect that the amendment would not be acceptable to the people. We have seen a certain sample of the people here. Almost all of them have been persuaded by the noble Lord, and I think that we ought to be allowed to express our swing of opinion.

My Lords, perhaps I may be allowed to point out to the noble Lord that on this occasion I am not being led by the noble Lord, Lord Windlesham. If anybody is to give the noble Lord an opportunity, it will be for me to give it to him

I am extremely sorry, my Lords.

My Lords, it is perhaps an interesting comment on the difficulty in this area of the law that in support of the last amendment some noble Lords argued in favour of giving a very wide discretion indeed to judges when passing sentence, ranging from small sentences up to life imprisonment in cases of murder; whereas when Parliament gave a discretion to the judges whether or not to declare a minimum period, a degree of uncertainty arose about the uniformity with which the judges exercised that discretion. That is illustrative of the difficulty in this area. but I do not press the point further than that.

In 1965, when Parliament changed the law in relation to this matter, it gave judges the power to declare the period recommended to the Secretary of State as the minimum period which should elapse before he orders the offender's release on licence. That was a discretion whether or not to make a recommendation at all; and then of course, if the court decided to make a recommendation, it was empowered to suggest the period recommended. In 1972 that provision was the subject of consideration in Scotland by a committee headed by the Lord Justice-General—I think it was before he actually took up that appointment—the noble and learned Lord, Lord Emslie. In 1980 during discussions on the Criminal Justice (Scotland) Bill, the Government proposed that the recommendation of the committee headed by the noble and learned Lord, Lord Emslie, should be put into effect and it was noted that as a consequence there would be an obligation upon the judge in every case to state a minimum recommendation. I rather think that that is the line that the noble Lord, Lord Windlesham, is suggesting.

However, the noble and learned Lord, Lord Fraser of Tullybelton, whom I am very glad to see in his place, and other noble Lords in this House raised a question first at Committee stage and then at Report stage about this proposed change in the law following the Emslie Committee's recommendation, and the House voted on the matter. The result was that Parliament decided that there should not be an obligation in every case to declare a minimum recommendation. I am sure that the noble and learned Lord, Lord Fraser of Tullybelton, will remember the eloquent speech that he made at the Committee stage against the imposition of a general obligation of that kind. So we are in a very difficult area in which to make progress by complete consensus.

My Lords, perhaps the noble and learned Lord will forgive me if I ask whether the situation has not been transformed since those earlier debates by the newly introduced practice in which the trial judge is asked to write in private to the Home Secretary in every instance giving an opinion on what should be the period to be served in the interests of retribution and deterrence?

My Lords, I intended to try to deal with that point. I agree that the development of the practice of correspondence, which has been necessary between the trial judge and the Secretary of State right from 1965—and which, as one would expect, has been entirely accurately described by my noble friend Lord Windlesham—is a circumstance which might well change the situation. Certainly for my part I should have been glad to hear the views of experienced judges upon the matter.

I think that it is at least questionable whether judges could be forced to write in every case and give a minimum recommendation, but in practice, as the noble Lord said, I think they do so. They have always been consulted. The statute required that, before releasing a prisoner who was sentenced to life imprisonment under the Act, the Home Secretary should consult the Lord Chief Justice and the trial judge if he was available. The result was that the trial judge was consulted a very long time after the event. Your Lordships may feel that even the memories of trial judges fade somewhat over such a period of time and that there is an advantage in the more modern procedure under which the trial judge immediately gives a view upon the matter.

The present situation is certainly quite a difficult one but it is not one in which I could advise your Lordships to accept this amendment. It seems to me that this amendment does not do anything to improve the situation. Indeed, despite the view expressed by the noble Lord, Lord Windlesham, with all his great experience, which has persuaded at least the noble Lord, Lord Paget of Northampton, and I am sure many other noble Lords, the amendment should not be accepted if your Lordships accept my submission.

My Lords, it appears from our debate quite clearly that there has been only one voice to support the present procedure. That voice came from the noble and learned Lord, Lord Denning, who suggested that this provision was essential in order that the judge could express the opinions and feeling of abhorrence of the public. I am hound with the greatest respect to ask him: what about a case of diminished responsibility, or a case of arson, or a case of rape, or a case of robbery? In all such cases, when the judge wishes to impose a life sentence, should not that feeling of abhorrence be expressed?

Of course it is and always has been open to the judge at trial to make whatever observations he likes, including expressions of abhorrence and so on, during the sentencing process. No doubt he does that very well, as, with some exceptions, the judiciary usually do in relation to all serious criminal offences and not only in cases of murder, which, as the House has already heard and I think will agree, is very often a less serious form of crime than the others to which I have just referred.

It also seems quite clear from the debate that everybody who has listened to the arguments accepts—must they not?—the views of the three distinguished chairmen of the Parole Board, to whom we have had the privilege of listening. I shall not rehearse what they have said, but their various descriptions of the effect of this particular part of the law that we wish to remove in the Bill can be summarised in the words "distorting the whole sentencing process", "a morass", "a mess" and so on. When we know that the noble and learned Lord, Lord Roskill, with all his experience, wishes to get rid of this power of the courts, and after hearing of the effects that this power has on the sentencing process, surely we must conclude that the time has come to abandon it.

To the noble Lord, Lord Windlesham, I say that the view that one would be shooting his fox by getting rid of this power is surely not correct. I am not an expert in shooting foxes; I am or was better with birds. However, surely if we remove this power altogether it leaves the judge at trial in the position of passing a life sentence—full stop and finish. In imposing the sentence he can add anything that he wishes to add, to reflect his view of how abhorrent the particular offence is. He may express the view, which often judges do, that he sincerely hopes that this person will not be released for a very long period. Those observations that he makes in public will be recorded for ever.

He will then be consulted in the normal course of events, as the noble and learned Lord the Lord Chancellor has just said, at the time when it is being considered whether the person should be released. That is surely an advantage, not a disadvantage as has just been said, because by then the trial judge will have had time to see the reports on the person concerned. Moreover, time will have elapsed, public opinion in relation to one offence as opposed to another may have taken a different course and so on, and reading back through the papers and his observations at the time he can, of course, express his view and be consulted.

The present requirement is a purely administrative matter. It is not a matter of legislation; it is a matter of administration which can of course be altered overnight. That is a matter for discussion. That is a matter for the chairman of the Parole Board to raise with the Secretary of State. But in this House at this moment with this Bill before us, we are dealing with legislation; we are not dealing with administration. If there is a mischief going on at the moment—and quite clearly there is— in the relations between the Secretary of State and the judiciary, and it is not due to legislation, then it is no business of ours at this moment when we are discussing this amendment. The first thing we have to do is to get rid of this power, let things get back to where they ought to be and I suggest that the judge imposes a simple sentence of life imprisonment.

My Lords, may I ask the noble Lord before he sits down, if indeed he was about to sit down, whether his final remarks take account of the recent change announced by the Home Secretary in July, and introduced on 1st October, by which all judges are asked when passing a life sentence to write to him through the Lord Chief Justice? That was in response to a decision in the Divisional Court. If the Home Secretary had not made the change on his own initiative the previous system would have continued. It was in response to a ruling of the court. Has the noble Lord taken that point into account?

My Lords, I say in reply that I most certainly have taken that into account, because the ruling of the court in Hanscomb was not a ruling that judges should make a recommendation of this kind or that kind. That is my recollection, but I may be wrong. If the ruling of the court was specifically that judges had to make a recommendation, then I would agree with the noble Lord. Lord Windlesham. But I was under the impression that it was a ruling of the court that the present procedures meant that persons were not having their sentences considered at a time when they ought to be considered, and that something had to be done to see that they were considered at the proper time. As a result of that ruling, this instruction has been issued to the judges which is a very different matter. But in all the circumstances, I am certainly minded to test the view of the House on this matter.

moved Amendment No. 44:

Before Clause 41, insert the following new clause:

My Lords, there is obviously a good deal of force in what the noble Lord has said in justification of a right of appeal against one of these minimum recommendations. It seems to be a reasonable proposition. However, I am bound to say that I part company with him on the terms of his amendment, and in particular the last three lines, which provide:

"but the Court shall so exercise their powers under this subsection that the appellant is not more severely dealt with on appeal than he was dealt with by the court below".

I can see no reason to insert that provision. I do not see why, if the Court of Appeal thinks that the recommendation was insufficiently firm, it should not say so and substitute its own views. That, after all, follows the general line of these appeals which are a both-way option. If one decides to appeal, believing no doubt, that one has a good case, one has to contemplate taking the chance that the appeal may fail and that its failure may result in the sentence being strengthened. For that reason, I could not support the amendment as it stands.

It is wrong to make the provision merely one way. If one thinks of the matter from a practical point of view, it is of course a standing encouragement for everyone who has a recommendation from the trial judge as to his minimum sentence to go to the Court of Appeal. Such a person stands there with nothing to lose. It is a safe option for him. Your Lordships would find that, if the law were to be so amended, the Court of Appeal would have a substantial amount of wholly unnecessary business forced upon it; whereas, if the Court of Appeal has the option to increase as well as to decrease the recommended figure, then those who advise the convicted man will have to consider carefully whether they have a good and satisfactory case which it is worthwhile taking to the Court of Appeal and using up the court's time. Unless the noble Lord is prepared to drop those last three lines, I shall feel bound to vote against his amendment.

My Lords, I am nervous about this amendment. In a way, the recommendation is not a sentence by the judge; it is a recommendation which is not in law enforceable, and the Secretary of State is not bound by it. I think that that is expressly set out in the Act. I know that in practice the recommendation has been treated as fairly binding on the Parole Board but, on the other hand, in point of law it is only a recommendation. Therefore, it is not a proper case for appeal.

I wish to make a further point. If a judge is to be subjected to appeal whenever he makes such a recommendation, the great majority of judges will not make any recommendation; in other words, we will obtain the same effect by a side wind. I do not think a judge should be deterred from making a recommendation when it is a particularly horrible case. He can make a recommendation as to the minimum sentence which the person should serve. It is only a recommendation. Like my noble friend Lord Boyd-Carpenter, I do not support the amendment.

My Lords, as I said on the last amendment, I am generally in favour of this amendment. If the judge's recommendation has no influence it should not be made, but we know, from what we have been told, that it has some influence. As it has some influence, and as judges are fallible, the accused should have the right to have the recommendation reviewed by the Court of Appeal (Criminal Division).

Like the noble Lord, Lord Boyd-Carpenter, I find the last three lines unacceptable in the present circumstances. I think I know why the noble Lord included them. Although I have forgotten what the measure was, a provision implementing a recommendation of a committee or commission presided over by Lord Donovan ensured that when there was an appeal against sentence, the appellant would not run the risk of having his sentence increased. If I am right in that, and that is the thinking behind this amendment, the matter must be reviewed in the light of the decision that your Lordships took, and which, sitting on the Cross Benches, seemed to be supported overwhelmingly by argument; namely that the prosecution should also be entitled to test the adequacy and propriety of any sentence. If that provision applies to a sentence, it should apply to any recommendation which has the same effect. I hope that the noble Lord, Lord Harris, will indicate that, if the amendment is carried, he will not be averse at a later stage to the removal of the last three lines.

My Lords, speaking purely as a layman, I wonder whether there is not a slight danger with this amendment. If my memory serves me correctly, minimum sentences were first introduced because of the strong public feeling that many dangerous criminals were being given sentences which were far too lenient. If we quash that power entirely, I wonder whether it will be in the interests of the public, who, after all, deserve the protection of the law.

My Lords, when either the noble Lord on the Woolsack replies to the debate, or one of the noble Lords on the Opposition Front Bench with experience of the Scottish system speaks, perhaps they could tell us if the appeal in Scotland is one way or two way.

My Lords, having been given that invitation, I should say that, on my understanding, the right of appeal is one way only. That is subject to correction. In Section 205(a) of the Criminal Procedure (Scotland) Act, which was steered through by the noble and learned Lord, the then Lord Advocate—no doubt the noble and learned Lord the Lord Chancellor will be able to speak better than I can on his reason for doing so—nothing is to be found to suggest that there is any power to increase the sentence. It is my understanding that there have been five such appeals which have not increased, or indeed decreased, the recommendation.

On the point of the noble Lord, Lord Boyd-Carpenter, I comment with some hesitation as he has more experience than a recent arrival such as myself. If the noble Lord likes Amendment No. 44 apart from the last three lines, I should have thought that there were various steps that he could have taken, and indeed can still take on Third Reading, to put the matter right.

My Lords, it is of course open to the mover of the amendment who agrees that there is a defect therein to withdraw it and to table it in an amended form at the next stage.

My Lords, that course is open to the mover of the amendment at this stage, as I am advised, by moving the amendment with the omission of the last three lines, should he so wish. I mention that not as a recommendation but as an indication of what I am advised is the procedure.

My Lords, the amendment, which seeks to give a right of appeal in respect of the minimum recommendation, obviously has something to be said for it, as my noble friend Lord Boyd-Carpenter observed. However, there is the problem that this minimum recommendation is entirely discretionary. The right of appeal here in question does nothing therefore in relation to those cases in which there is no minimum recommendation.

As I understood my noble friend Lord Windlesham, that is one aspect of the present situation which from the point of view of a completely logical and satisfactory system is somewhat unfortunate. It may be a question whether it is right to add to those cases in which a minimum recommendation is given this additional right of appeal. The result is surely hound to be that there is some further authority; namely, the authority of the Court of Appeal (Criminal Division), in respect of the particular case in which there has been an appeal.

Against the general background that the noble Lord has described, I wonder whether it is right for us to go ahead and make this change to one part of the present system without making changes to the rest of it. It is true of course, as the noble Lord, Lord Harris of Greenwich, pointed out, that in 1980 in relation to Scotland the Government proposed an appeal of this kind. The method used in the legislation was to deem the recommendation part of the sentence and to make it subject to the same rules of sentence which generally provide that it cannot be increased on appeal.

As the noble Lord, Lord Windlesham, said, the other procedures have developed a good deal since 1980 and there is a recognised procedure which has been described by the noble Lord, Lord Hutchinson of Lullington, as an administrative procedure but still a procedure that has been publicly recognised and intimated by the Home Secretary in the light of developments that have taken place. in particular the judgment of the Divisional Court in the Handscomb case. In that situation I wonder whether it is right on the basis of the present system to make this change in isolation. It would be useful to know what those noble Lords with experience of the Parole Board—we are happy and privileged to have the benefit of the presence of no fewer than three of them—may have to say about that.

The point made in relation to the earlier amendment is that the person who is the subject of a minimum recommendation is placed in a special rather significantly different position from others who are the subject of a mandatory life sentence. If some of these are selected as people who have been the subject of consideration by the enhanced authority of the Court of Appeal (Criminal Division), the position is worsened by making such distinct situations even more different than would be the case if there were no appeal. The minimum recommendation is declaratory only, as was pointed out. It is for that reason no doubt that it has not up to now been the subject of a right of appeal in this country. If it was an ordinary sentence, one feels sure that from the beginning it would have been the subject of an appeal. It is not an ordinary sentence; it is something out of the ordinary invented as part of the arrangements for dealing with the abolition of capital punishment and a substitution of a mandatory sentence.

It is a special provision. Your Lordships have already heard just how special it is and how its existence in certain though not all cases makes it more difficult than it would otherwise be for the Parole Board to operate with complete fairness over the whole field with which it has to deal. The same problem applies to the Home Secretary. After all, one has to look at the situation from the point of view of administrative justice as the Home Secretary seeks to develop it. The Parole Board of course has its responsibilities in the same field.

I am not entirely persuaded that to add this right of appeal would necessarily produce a better overall picture of justice either for the Secretary of State or for the Parole Board. In that state of matters, it humbly seems to me that your Lordships might be wise not to pass the amendment. Your Lordships have expressed views that my right honourable friend will be very interested to read and consider. I doubt whether there is sufficient consensus on the best way forward for us to pass the amendment at this stage. I suggest that the wiser course might be not to do so.

My Lords, for a variety of reasons, not least the point made by the noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord, Lord Simon of Glaisdale, I do not propose to press the matter today. I wish to reflect upon what they said about the last three lines of the amendment. I understand that there is a procedure under which I can tonight withdraw the last three lines of the amendment. I am not sure that that is the most sensible way of proceeding.

The noble and learned Lord the Lord Chancellor has not tonight made one of his most persuasive cases. First, he asked—rather rhetorically, if I may say so—about the attitude of each of the three chairmen of the Parole Board—two past and one present. That has been made absolutely clear. They are in favour of this amendment. I do not believe it creates the immense problems that he perceives are likely to follow for the Parole Board. Otherwise, I do not believe that the three of us would have taken that view.

The noble and learned Lord then says that it will also create hideous problems for the prisoner because he will have to consider whether he is not going to make his position worse by appealing to the Court of Appeal. There is the danger that with the "enhanced authority", as I think he described it, of that tribunal the prisoner would get himself into a worse position. That is a matter which the prisoner and his advisers would have to reflect upon. It is one of the matters they would have to consider before deciding whether to go to appeal in the first instance.

The noble and learned Lord continued by saying there is a third person about whom he is very concerned, and that is the Home Secretary. Why in fact should the position of the Home Secretary be made any more difficult. It is difficult enough already, as I am sure we all accept, in a whole variety of cases. Why should the position of the Home Secretary be more difficult because the Court of Appeal is asked to make a decision? The issue which the Court of Appeal would be determining would not be precisely when the man or woman concerned was to leave prison; it would be deciding only whether the minimum recommendation should be varied.

As to the rest of the argument put forward by the noble and learned Lord, he said quite rightly that the minimum recommendation is a discretionary matter. I think the noble and learned Lord later accepted to some degree that that does not begin to justify saying that although it is in fact entirely discretionary, a man should be debarred from the right to go to the Court of Appeal. As I have indicated, and as the noble Lords, Lord Windlesham, and my noble friend Lord Hunt have agreed, these minimum sentence recommendations are in most cases decisive so far as the Home Secretary and the Parole Board are concerned.

The language of the Home Office circular which I invite the noble and learned Lord to look at, re-emphasises the decisiveness of that minimum recommendation.

The noble and learned Lord, Lord Denning, said that he was fearful that if there was a right of appeal in such cases the majority of judges would be deterred from making a minimum recommendation in the first place. I have already indicated that a very substantial number of judges are deterred at the moment because they do not happen to believe in minimum recommendations.

A number of judges will not, as a matter of principle, make such a recommendation because they prefer to leave it to the Home Secretary. Others sometimes do, giving no reason at the time. Because the matter is (a) decisive in terms of the length of sentence, and (b) unreviewable by the Court of Appeal, it results in a most unsatisfactory situation.

As the noble and learned Lord, Lord Denning, has said, a minimum recommendation is not by itself a sentence. But in only seven cases since 1965 has it in fact not been a sentence. That is a situation which we have to accept. I am deeply troubled as also are a number of members of the judiciary from my own direct personal knowledge. They have observed the character of cases over a number of years as members of the Parole Board. In some cases a minimum recommendation has been made by the trial judge and in others with some of the most notorious criminals coming before the criminal courts, no minimum recommendation has been made. Those two categories of cases are in reality treated totally differently and I can see no justification for such a situation.

I would have undoubtedly pressed this matter to a vote this evening were it not for the issue raised by the noble Lord, Lord Boyd-Carpenter, and the point made by the noble and learned Lord, Lord Simon of Glaisdale.

I hope that the Government will between now and Third Reading, look at this matter again. I certainly would not necessarily fight for every dot and comma on this particular amendment. But the issue of principle is clear. At the moment there are two categories of life sentences; and in one category a prisoner is maybe serving a far longer sentence on the basis of a minimum recommendation which is not reviewed by the Court of Appeal, and in the second, the case will he considered entirely on its merits.

moved Amendment No. 45:

Before Clause 41. insert the following new clause:

My Lords, it is very difficult when one has arranged to have an adjournment at about seven o'clock, to have it before seven o'clock because there may be noble Lords who wish to take part in the discussion. We always adjourn between seven and half-past and that will give the noble Lord a little leeway.

I am very sorry to keep noble Lords from their supper hut I have no alternative.

There are two amendments here, and with the leave of the House I should like to speak to Amendments Nos. 45 and 46 but to vote on them separately. There are two issues and the first is that disciplinary duties should he removed from the duties of the boards of visitors. That means that something else must be set up to carry out those duties. That is as far as Amendment No. 45 goes.

The second is that any tribunal which is set up to carry out such work should be constituted in a way that it stands as a judicial tribunal and will he empowered to act for all prisoners and thereby maintain consistency in its decisions.

Amendment No. 46 lays down the composition and procedure of such a tribunal which is recommended by the Prior Report. First, I refer to Amendment No. 45. I remind the House why the noble Earl, Lord Jellicoe, and I some years ago and Mr. Peter Prior and his colleagues last year, urged that these disciplinary duties should not belong to or be part of the duties of the board of visitors. The proper duties of the board are to look after the interests of prisoners and staff; to be available to hear complaints; to be easily seen when going around the prison and to do so frequently. It is also its duty to support the governor in his efforts to obtain approval for improvements from the Home Office, and in emergencies to act as a direct line to the Home Secretary. If there is a crisis and it has been allowed to get out of hand, it has a direct line to the Home Secretary and this is an important part of its duties although seldom used.

We think that the board must be seen to be on the side of the prisoners. It must be a group of people to whom the prisoners can turn. We think the disciplinary duties are a real disadvantage towards creating the best atmosphere.

I am not going to say any more about this because it seems obvious. There was a good deal of support for this in Committee. I hope that when we come to vote on Amendment No. 45, noble Lords will find that they can support that amendment whatever difficulties there may be in the Government's view of executing it. That is something which the Government have to sort out for themselves.

As regards this amendment, not only do we have the support of the noble Earl, Lord Jellicoe,who unfortunately cannot be here, but also the support of the Opposition. We have the support of the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Simon of Glaisdale. For nearly a year we had the support of the Government, too, from their White Paper last year until the cataclysmic change of heart of the noble Earl on 25th February last when he announced that nothing would he altered beyond the revised disciplinary code. The noble Earl explained to us in Committee that this was because of a lack of agreement as to the type of tribunal to be set up. However, as the Government agree that the combination of friendly help and the issuing of punishments by the same body is unsatisfactory, I hope that the House will at least accept the first amendment and leave it to the Secretary of State to make up his mind as to the form of tribunal required. If that is accepted, we can then discuss Amendment No. 46 which deals with the legal machinery recommended by the Prior Committee.

Noble Lords must remember that the penalties concerned can be very severe. The maximum loss of remission was 180 days, but I am glad to say that it has now been reduced, with the Government acceptance of one of the Prior recommendations, to 120 days. However, that amounts to a sentence of an extra three months' imprisonment. Remission, of course, is a privilege but one which can only be forfeited by proved misconduct and it is utterly wrong that sentences of this kind should be handed out without the proper judicial supervision.

I repeat what was said in Committee. This tribunal has the support of all people professionally concerned in this field with the exception of the majority of boards of visitors; but, curiously enough, there is an Association of Visitors Boards which supports the amendment. It is also supported by the Magistrates' Association, the Law Society, the prison governors' branch of the Society of Civil and Public Servants, the Prison Officers' Association, our own, parliamentary All-Party Penal Affairs Group, NACRO, the Howard League and the Prison ReformTrust. When one backs this up with two very careful reports, one chaired by the noble Earl, Lord Jellicoe, and the other by Mr. Peter Prior—10 years apart but very nearly making the same recommendation—one is certainly confronted by what appears to be an obstinate refusal.

Kai Lung, that very good adviser, once said:

"A prickly mimosa is defence enough for a naked man armed only with a just cause."

Our cause is just but we are naked against the in-built majority on the other side, and the Home Office protection of the Minister is certainly prickly enough. This is a non-party issue. What may and, I am afraid, will happen is that a number of strange faces who have not listened to the argument will come into the House and support the Government in their determination not to put right what is admitted to be unsatisfactory in a sphere which is increasingly tense and difficult.

My own belief and the belief of my colleagues and the other people who support this amendment is that one of the provisions which can do most to ease the tension in a prison is a really effective board of visitors. We believe that unless at least Amendment No. 45 is carried and, preferably, Amendment No. 46, the possibility of strengthening the position of prison governors will be missed. I beg to move.

My Lords, I do not know whether it is convenient to intervene at this moment and whether it interferes with the dinner arrangements, but I hope noble Lords will indicate if they are becoming hungry and would rather that the debate was adjourned at this point.

I would have put my name to these amendments were it not that I had misgivings about the drafting and the machinery; but as to the principle, I confess I have no doubt at all. Where the liberty of the subject is concerned and he is liable to imprisonment it seems to me that he is entitled to a tribunal with a legally qualified chairman. The noble Lord, Lord Donaldson, has deployed all the arguments which I shall not repeat. Having indicated a generally favourable view in Committee, I am grateful to the noble Earl for having written me a long letter setting out his views. The noble Earl must have worked fantastically hard between Committee and Report and it is a matter of regret, under those circumstances, that I was not persuaded by his letter. I only desire to say that it is many years since I had responsibility for prison administration, though of course when I went on assizes, like other judges on circuit, I invariably visited the local prison. However, even so, my experience is long out of date.

We had a rather similar problem in the Percy Royal Commission on mental health of which, I suppose, I am the last surviving member. There was a question of the liberty of persons who were compulsorily detained on the ground that they were considered to be of unsound mind. There again, there were visitors who visited the mental hospitals. I do not, for a moment, equate that with the prison visitors but there is that parallel. We discussed this matter at great length and came to the firm conclusion that a mental health review tribunal should be set up, legally chaired, and that was accepted without demur when the Mental Health Act 1959 was passed.

If it was necessary in that case—the liberty of the subject being a concern—to have an independent tribunal, legally chaired, it seems even more necessary in the present case for the reasons given by the noble Lord, Lord Donaldson.

I thought that the recruitment argument that was put forward by the noble Earl in his most helpful letter was overdone. I do not believe that if we managed with the Mental Health Review Tribunal we would really have any difficulties in this field. I therefore support the amendment.

My Lords, on behalf of the Opposition let me say at once that we support this amendment, as the noble Lord, Lord Donaldson, indicated. Possibly the power of our support may be measured by the brevity of my speech.

In those circumstances perhaps I may merely emphasise the following points. The board of visitors at the present moment—a body whose main function is regarded as being one of listening to complaints from prisoners and seeing whether they are justified—has the power to impose up to 180 days' loss of remission. If they happen to be consecutive offences that limit of 180 days can obviously be exceeded. It seems transparently obvious that it is the wrong body to be able to do this, to have the respect of the prisoners or to carry out its proper objective functions. That is the first point.

Secondly, this is not the view of some Members of your Lordships' House who have decided to put some revolutionary amendment down at Report or any other stage on this Bill. As the noble Lord, Lord Donaldson, pointed out, this was the view of the committee chaired by the noble Earl, Lord Jellicoe. The previous Home Secretary, Mr. Leon Brittan, set up a committee which was chaired by Mr. Peter Prior. This is the very recommendation—as the noble Lord, Lord Donaldson, said, with very little difference—put forward by the Prior Committee and the Jellicoe Committee.

The third point is that everybody seems to agree with this proposal except the Home Office administration at the moment. I say "at the moment" because I am hoping that there will have been a change of mind over the last few minutes, having heard the speech of the noble Lord, Lord Donaldson, the noble and learned Lord, Lord Simon, and myself—I cannot think of a more convincing trio! I hope therefore that the noble Earl will have changed his mind.

However, the only other people who have put forward any doubt about how to form an alternative body, or to suggest that an alternative body should not be formed in the way mentioned in this amendment, are the boards of visitors. I have an idea that they may feel that there is some reflection on the way in which they have dealt with these matters in the past. That is not so, and one would have thought that their objection at the moment—which I understand may be fairly active but not very active—was the only reason for this amendment not being passed.

When I said that there was no objection to the procedure before, l must tell your Lordships, without wearying you with the cases involved, that there have been a couple of cases—a recent one before the Divisional Court—where the rights of prisoners were very definitely looked at and where what had happened in regard to procedure was frowned upon by the court, and indeed certain principles were laid down.

We now have the opportunity of carrying out the recommendation of two responsible committees. One never knows why committees are set up by Ministers unless they intend to give very serious consideration to their recommendations. We have that opportunity now; the noble Earl has it. I hope that he will take advantage of the opportunity.

My Lords, these amendments afford us a further opportunity to consider the prison disciplinary system. As I understand the noble Lord, the two new clauses he has tabled are intended as alternatives. One, identical to the one we discussed in Committee, is intended broadly to implement the Prior Committee's proposals for a new Prison Disciplinary Tribunal, with a circuit judge as president, legally qualified chairmen and lay members. The other, as I understand it, is intended in effect to implement the proposals in the White Paper on the prison disciplinary system (Cmnd. 9920) for a new lay body, which would be separate from boards of visitors, to deal with the more serious breaches of prison discipline.

My Lords, they are not alternatives. They can be alternatives but they can both be passed. If noble Lords pass the first you leave open the exact construction of the tribunal. If noble Lords pass the second, you fill that in.

My Lords, I am delighted that the noble Lord has been able to correct me there. In that case I should say "and/or". I explained in some detail in Committee why the Government had decided not to proceed with the White Paper proposals for this new lay body. I also explained, however, the steps we were planning to take to improve the existing adjudication arrangements, principally by accepting in large part the Prior Committee's recommendations for a new code of discipline and various procedural changes and by providing hoards with the assistance of court clerks or solicitors. I recognise that these plans do not go as far as some people would wish, but I believe that they hear a close scrutiny as serious and worthwhile improvements to the present adjudication arrangements—improvements which, I may say, will involve a lot of hard work to put into effect.

As anyone who studied our White Paper of October 1986 will know, we gave careful consideration to the Prior Committee's proposals for a new disciplinary body. At this stage I should like to emphasise to the noble Lord, Lord Mishcon, that we did give serious consideration to the proposals. I am sure that he would be the first to agree with me that it is for the Government in some cases to institute these committees but it is for Parliament to decide at the end of the day which of the proposals it would like to see implemented and not necessarily to accept the committee's proposals carte blanche.

We also looked, as we were bound to do, at other possible options, in particular the use of magistrates and their clerks, and the option which the White Paper actually favoured, that of separate lay panels, assisted by qualified clerks. As the White Paper made clear, we recognise the arguments in favour of a tribunal of the kind suggested by the Prior Committee, but in the end we were persuaded, and remain persuaded, against such a tribunal because it had, in our view, serious disadvantages.

First, we consider that a tribunal system with a circuit judge as president and legally qualified chairmen (barristers or solicitors of not less than seven years' standing) would simply be too weighty a body for the business with which it would have to deal. It would certainly be more weighty than the magistrates' courts but it would be dealing with behaviour which, even if it corresponded with a criminal offence, would not in fact be serious enough to merit referral to the magistrates' courts.

Secondly, although the new clause to implement the Prior tribunal talks disarmingly of no fewer than four legally qualified chairmen, let us be quite clear that, as the Prior Committee itself recognises, bearing in mind the number of cases (about 3,500 a year) and the geographical spread of our 120 or so establishments, we should need in the region of 80 part-time appointments. The pool from which these appointments would have to be made would be the same one from which circuit judges, and other judicial officers, principally recorders and assistant recorders, are appointed. The depletion of that pool by the number of appointments in question would be singularly unwelcome to my noble and learned friend the Lord Chancellor, particularly at a time of growing pressure on the Crown Court.

Thirdly, an essential ingredient of an effective prison disciplinary system is the ability to arrange adjudications speedily, ideally not more than three to four weeks after the alleged offence. We have very serious doubts about our ability to convene panels chaired in the way the Prior Committee envisaged as quickly as would be desirable, and this was a factor which we thought it right to take into account.

Finally, I refer to a point on which the new clauses are silent. The Prior Committee suggested that its proposed tribunal would need its own administrative backup, regionally based. Our estimate was that this would require some 25 additional staff, plus accommodation and support services. Moreover, this estimate was based on the assumption—as the White Paper pointed out, a questionable assumption—that there would be no need for these staff to act as clerks at adjudications.

As I have indicated, we looked at two other options. We concluded that, taking all factors into account, the Prior tribunal was not the right way forward, and that the option for separate lay panels, assisted by clerks, was.

However, this solution gathered very little support. The proponents of the Prior tribunal saw it as inadequate, while the opponents at best were unenthusiastic. We listened to, and took note of, these views. We wanted to proceed by agreement, but that agreement was not forthcoming. We decided therefore, that if progress was to be made on the non-structural aspects of Prior we should have to forgo the idea of separating the adjudicatory and watchdog functions. I acknowledge candidly that this was a pragmatic response. I have to say also that as I became more familiar with the work of the prison department and indeed the work of boards of visitors, the more I became convinced that boards could cope and were coping very well with their adjudicatory functions. Far from being undermined by judicial review, the existing adjudicatory arrangements have both stood up well to the test of judicial review and have benefited from the guidance which has emerged from judicial review. I have also become convinced that the benefits to be obtained from the separation of the watchdog and adjudicatory functions are largely theoretical, and that they would have a serious practical cost in terms of the upheaval they would cause. In this connection, I have to say that we could well face serious difficulty in securing the services of sufficient numbers of suitable lay people to meet the requirements of both a new adjudicatory system and the important existing watchdog role which boards of visitors discharge.

While I have the highest regard for the legal profession—my regard is even greater having taken the Bill through its stages to date— and, indeed, for the noble and learned Lord, Lord Simon of Glaisdale, as a Minister in the department reponsible for the magistrates' courts I cannot accept that the importation of legally qualified chairmen is essential to achieve fairness. We have a proud tradition of summary justice administered by laymen and women, assisted, of course, by professional clerks. This is the model that we consider to be appropriate for the prison visiting system. I would go further and say to the noble and learned Lord that there are a number of magistrates on boards of visitors. Of the 1,529 members of boards of visitors, 628 are serving justices of the peace. My maths, fairly elementary as it is, calculates that to be some 41 per cent. of boards of visitors. I repeat to the noble and learned Lord, Lord Simon of Glaisdale, that we shall be giving the boards legal advice from now on. That is one of the recommendations of Prior that we have accepted.

There is another point which was not raised at Committee— I should have raised it and I apologise to the House. We await, and are about to receive, the thematic review of the outgoing Chief Inspector of Prisons on grievance procedures. This will provide an opportunity to look comprehensively at the way in which prisoners' grievances are handled. This in its turn has implications for the role of boards of visitors.

Since the last stage I have discussed at great length with members of boards of visitors, both for and against, and other members of the prison service what their attitudes are to our decision, given what was said by your Lordships in Committee. They have all said that we are right to be doing what we are doing. Perhaps some of them do not like it, but in the present circumstances they believe that the Government have taken the right decision.

Let me conclude by saying this. First of all, I am grateful to the noble Lord for having given us this further opportunity to discuss the prison disciplinary system. Secondly, while the Government are grateful to the Prior Committee for the valuable work it did and for the many recommendations we are pursuing, we do not think that it got it right with its proposed tribunal. Thirdly, we accept that our proposed lay panels do not command sufficient support. I see no prospect of finding acceptable new structures in the foreseeable future.

I did not differ from the noble Lord, Lord Donaldson of Kingsbridge, when he said that the boards of visitors must be effective. I believe that they are effective and will continue to be effective with the proposals which we have in mind and which we have discussed tonight. I hope that the noble Lord will accept that, while we differ on whether or not the new machinery is necessary, he and I share the objective of improving the disciplinary system and I therefore hope too that he will be able to accept my argument this evening.

My Lords, we concluded in Committee that I was unlikely to agree with the noble Earl and I do not think he expects me to do so today. I am disappointed because I carefully raised two amendments so that if the noble Earl found, in his rather delightful phrase, that he could make only a pragmatic response to my request to set up a tribunal—a pragmatic response meaning a reasonably stated excuse for doing nothing about it—he could take the first amendment and say, "We have already told you that we agree that these disciplinary matters should be separated from the caring or friendly duties of boards". They mentioned this in the White Paper and he has twice half said and half withdrawn it (I believe this seriously). The noble Earl could have given us some encouragement to pass the first amendment and then told us what the Government could do in the form of a makeshift system. He could have said, "We will see that there are at least three magistrates on every board"—if there are 41 per cent. that means that there are jolly nearly two already—and could have said, they shall sit separately and have a separate function to deal with such cases." That would have gone some way in the right direction, although not as far as I had hoped for. To give one absolutely nothing at all, except that there is to be a disciplinary code to be administered by the same people—people whose administration of it we object to anyway—is a poor response.

The noble Lord spoke of the Prior suggestion as being too weighty. Conditions in prison are not the same as conditions outside. Ordinary magistrates' courts can deal with a three-month prison sentence, which is what we are talking about under the new code. It is a very big sentence for the man already serving it, who is expecting to get out on a certain date. It needs a weighty tribunal to satisfy him and his colleagues.

Lastly, if it is true that the Prison Governors' Association and the prison officers staff have told the noble Earl that what has been decided is absolutely splendid, in spite of it not being what they want, that is not the kind of response I have received.

For the reasons I gave in my opening remarks we shall not win this because the people who will be voting have not listened to the argument, do not know anything about it and are treating it as a party matter. I shall display that by putting the matter to the vote.

My Lords, this may be the appropriate time to adjourn the Report stage. I suggest that we do not resume before 8.35 p.m. I beg to move that further consideration on Report be now adjourned.

rose to move, That the draft regulations laid before the House on 6th July be approved. [2nd Report from the Joint Committee.]

My Lords, we are delighted that the noble Baroness has brought these regulations forward for discussion. There is no question, particularly so far as concerns the battery production of eggs, that there is a lot of feeling one way or another and I think that these regulations should help to give some succour to the people who feel that battery egg production should be banned altogether.

Whatever one may think of battery egg production there is no doubt that it produces cheap eggs. I looked at the egg stall in a supermarket no later than this morning and found that half a dozen eggs, which I am pretty certain were all battery-produced eggs, were 56p a half dozen and free range eggs were 79p for half a dozen. They were No. 4 size eggs. That makes a tremendous difference of 46p a dozen between eggs produced by battery production and by free-range production, and somebody told me that they did not think that free-range farmers were making much of a profit even at those prices. Whether of course the supermarkets are taking too much profit on them I do not know, but that is the difference. We have to look at that side of it when discussing the abolition of battery egg production altogether. To be fair to these figures, the smaller the egg the difference is not quite so great.

Over the years there has been the development of different batteries, which the noble Baroness mentioned, and fresh regulations. As regards the regulations, I have been handed the Joint Committee on Statutory Instruments report on these regulations, and I must admit that it is pretty hard on them. No doubt the noble Baroness has had pointed out to her what it says. It is a little vague. It says:

"Most of the requirements in the Schedule seemed to the Committee to be extraordinarily vague. Given that the breach of these requirements would constitute a criminal offence, the Committee inquired whether it would not have been possible to tighten up the terms of the Directive rather than reincorporating them virtually wholesale?"

When one reads some of the regulations—particularly the one on the angle of the floor—they are difficult to understand. They make a point of what exactly eight degrees means as against 14 per cent. The committee gives a sketch which explains it to a layman, but I think that the noble Baroness should take note of these matters.

The other point I want to raise on the regulations is the question of:

"'laying hens' means adult female domestic fowls which are kept on agricultural land for egg production".

Does that cover a battery on cement at the back door of some smallholding, or a private house where somebody has a bit of land? I presume it does, but there are these things in the regulations which are, as the committee says, a bit vague. Because they will be criminal offences they will need to be cleared up a bit.

As I said earlier, and as the noble Baroness said, there have been changes in the design of batteries and these regulations create a problem. I understand that the alterations that the Danes made a few years ago have been much to the loss of the Danish farmers who have lost a great deal of business to the Dutch because the regulations were so hard.

We welcome what the noble Baroness proposes to do about the A-frame battery, which is a good battery in that it allows the droppings to drop clear of the other cages, and also one can see the birds much better. From a husbandry point of view the birds are much easier to see because there is light coming in from the top on every layer of cage whether there be three or four. I think that these regulations could create the following situation. I gather that if they were carried out to the letter they could reduce the number of hens in an A-battery by up to 60 per cent., and that would mean a considerable loss to the farmer.

I do not know how long batteries last. I installed a battery just after the war. It certainly lasted 10 or 12 years; I sold it, and I think it is still going. It may seem a long time to 1995 but it passed very quickly. I think that the noble Baroness mentioned that in 1993 they would look at the regulations again so that they could do something by 1995.

As we all know, there is tremendous competition in the EC in the egg market. Anything that would put our farmers at a disadvantage would be most unfair. Therefore we welcome the point that the noble Baroness made.

On the question of the calves, of course nobody likes the veal calf system at all. We know the reason for keeping them from turning round of course: for control. The food had no roughage, but nowadays one cannot buy food without the proper fibre and so on.

I wonder whether the noble Baroness has any thoughts about whether the regulations for calves should deal with the fact that veal calves are always kept in darkness. There is no word as to whether we ought to stop keeping them in the dark.

On the question of calves in general, I was brought up in Aberdeenshire where it will now be an offence to tie up any animal. I left Aberdeenshire and have not been on a beef farm for a long time, but my noble kinsman may know of a whole host of cattle tied up in what we call byres that are well looked after and perfectly happy.

In Denmark I saw sows tethered in wide stalls and bedded on straw. One could not have seen a better bit of husbandry than that. We need to look closely at the suggestion that farmers in the North-East are being cruel to cattle by keeping them tied up in byres.

With regard to the regulation about the height and the width—the height being the height up to the wither—I think it would be much better to take an average size calf and give a figure. I can imagine a joiner coming along to make some calf pens, trying to catch a calf to measure its withers and then deciding how wide to make the pen. I feel that is a little vague.

However, we welcome these new regulations to help the situation in animal husbandry, particularly intensive animal husbandry. Apart from the points that we have made, we give them our blessing.

My Lords, we, too, from these Benches welcome the regulations. I must say that I welcome them much more wholeheartedly than my noble kinsman. I should hope that the regulations would not only improve the temper of the critics but would do something for the hens as well. As a farmer I detest the battery system. I know that it produces eggs and, as my noble kinsman said, they may be cheaper; but free-range eggs would certainly be worth half as much again as eggs produced in a battery. The system is widely abhorred.

Another kinsman of mine shows many schoolchildren round his farm. They go into the calf house and the the milking parlour which are very modern. They go into the piggery. They are extremely interested. However,when he takes them into the battery house a hush falls on the children. I think that this is universally felt.

Therefore I welcome the small step forward in the regulations. I am not unaware of the fact that in this kind of case we must protect our producers who are driven by commercial factors to produce in this way, as against our comrades on the continent.

I hope that the Government will take a lead in pushing for further regulations. I thought it delightful that the cage is sloped in such a way that the droppings fall clear. I have no doubt that that is absolutely admirable, but why should the bird have to bend down every time it wants to defecate? It appears to me to be most cunning, but it is still not at all a good system. Therefore, I hope that the Government will work towards getting it abolished throughout the EC. We shall then have far better eggs. The hens will take up some of the land that at present is used to produce surplus food. We should produce from that land something worthwhile and worthwhile eating. While paying due regard to the competitive nature of the industry, I do think that this is a step forward.

In the case of the calves I do not think that there is anything with which to quarrel. I cannot see that the colour of the veal that we eat should be obtained by depriving the calf of any vital element in its growth, particularly as calves may be intended for veal but given fodder at a later stage.

I can assure the noble Baroness that from these Benches I welcome the regulations. I recognise the practical difficulties of the industry. However, I hope that the Government will push for regularisation of the position on batteries inside Europe and progress to abolishing them altogether.

My Lords, I seek to take part in the discussion on the regulations which are before us, mainly because in another place in the parliamentary session 1980 to 1981 I chaired the Select Committee on Agriculture and with 11 of my colleagues in another place spent an entire parliamentary session looking into the conditions in which eggs, meat from pigs and meat from veal calves was produced. Our inquiry was a natural follow on to the Brambell Report which my noble friend mentioned in opening this evening. It was also very much in response to a great deal of public disquiet at that time about what had become known as factory farming. I believe that there is a great deal of public disquiet about factory farming today, as the noble Lord, Lord Mackie, who has just spoken, has indicated.

I was interested in his comments about schoolchildren being taken round a farm. I can fully understand the reaction of young people in seeing hens particularly in their natural condition in a farmyard and then seeing them in the battery system.

Back in 1981 my committee produced our report and our recommendation for battery hens was that Community agreement should be sought to obtain through regulation a minimum of 750 square centimetres per bird in battery cages. We also very strongly recommended that 550 square centimetres was the absolute minimum that could possibly be reasonable.

I therefore welcome, belated as they are, Recommendations (1)—(3) which are before us tonight. I regret very much that birds in cages of four should just have 450 square centimetres. My committee further recommended that agreement should he sought in the European Community on a statement of intent, that after a period of five years egg production should be limited to approved methods which would not include battery cages in their present form.

The date of that report which I signed was 2nd July 1981. The new regulations represent, as the noble Lord, Lord Mackie, has suggested, a modest step forward on the humane front. The new regulations representing this modest improvement in welfare are not effective until 1st January 1995—food for thought for those of us who sat on that committee those years ago. My colleagues and I on that Select Committee were fully aware of the economic consequences of our recommendations. Throughout our report— as those of your Lordships who have read it will note—we appreciated that regulation must be on a Community basis if the United Kingdom producer was not to be disadvantaged. The point was made by the noble Lord, Lord John-Mackie, speaking for the Opposition. However, we did not hesitate in our conclusion. The report summed up our feelings, and I should like to quote from paragraph 149:

"Despite the conflicting arguments our conclusion is clear: we have seen for ourselves battery cages, both experimental and commercial, and we greatly dislike what we saw. We think that, provided that a move away from them was carried out over a reasonable period of years, and provided that it was made in concert throughout the Community, then so far as can be estimated at present the economic consequences would not be prohibitive, the likely price increases need not he unacceptably large, and consumers would adapt to them as they have to much else".

Since the production of our report—since I wrote that paragraph- progress has been deplorably and abominably slow. I hope that our strong recommendation, made at the time of the report, that research into alternative, more humane methods of egg production will continue.

What is happening with regard to the hopeful work which was being carried out at that time at Gleadthorpe on the aviary system or the work at Celle in Germany on the get-away cage system? The noble Lord, Lord John-Mackie, spoke of the use of land. I remember that during the course of our inquiry in 1981 a witness stated that the straw yards system—which was a reasonable system and certainly more humane than the battery system—was at a disadvantage because it would take precisely five times as much land as the battery system. We are now looking for alternative uses for land so perhaps it may not be too had a thing if the straw yard system were to be considered once again.

I believe that public opinion has moved with regard to battery and free-range produced eggs. Free-range produced eggs are now more freely available than at the time of the production of our report. I live in the heart of Northumberland where we can obtain free-range eggs easily. When I am in London I live in the heart of the metropolis, as my noble friend knows, because we are neighbours. I have no difficulty in obtaining free-range eggs here and I think that it is an improving trend. There is, however, no doubt— and we would be foolish if we did not recognise it—that a caged system of some kind will continue for a long time to come. The economics of the situation still demand it.

I hope that more research will be undertaken and that in the near future further steps will be taken. I regret that action since the production of a report, on which 12 Members of another place, including myself, did a great deal of work has been so long in coming. During the course of that we experienced a great deal of distress at what we saw. I hope that it will be not too long before we have a further step forward.

I welcome the requirements laid down in the draft regulations as regards veal calves. The Select Committee's recommendation that, above all else, a calf should have the ability to turn round is met. That is a good thing, whether it is measured by the withers or in another way. It will now be possible for a veal calf to turn round and that is an enormous step forward in the name of humanity. It was a deplorable sight to see rows and rows of calves unable to turn round in the full period of their short lives. Considering the deplorable conditions in which we saw them kept, one felt a certain amount of relief at knowing that their lives would be short. I welcome the new regulations but I regret that they will not come into force until 1990.

The committee strongly recommended that the production of loose housing for veal calves should be given full consideration by the government of the day. I hope that the advantages of loose housing are still being borne in mind by Her Majesty's Government.

As the past chairman of a Select Committee which looked into the subject closely and carefully, I welcome the recommendations, but with the reservation that they have been too long in coming and that they are much too modest.

My Lords, I welcome the recommendations in the sense of welcoming not half a loaf as being better than no bread but a single crumb. The regulations have a few things to recommend them but I think that they may be harmful in confirming to the public that the Government approve of intensive farming. I do not disapprove of intensive farming merely from a humanitarian point of view. I dislike it also because of the danger to the consumer. The animals, which live an entirely captive and unnatural life, become delicate and subject to all kinds of disease. They have to be injected with antibiotics and, as everyone knows, calves must also be injected with hormones. It is that which makes the meat eaten by the consumer unnatural and possibly even dangerous.

It is a pity that the regulations were not prepared in English. For those noble Lords who do not understand European, I should like to point out that 1,000 sq. c. equals a rectangle of approximately 19½ in. by 7½ in. It could be a different measurement but it is a small space in which a hen must spend its entire life.

On the other hand, I am glad that the food for calves has been improved. It is much better than the food they are given in France. There they are made anaemic because the French public demands white veal. I am thankful to say that we in this country are not quite so particular.

The noble Baroness said that the regulations are put before us in order to keep in step with European standards. Why on earth should the European Commission dictate to us as regards our domestic affairs?—on international affairs most certainly, and one can understand that. But it seems to me that our domestic regulations are entirely beyond its business and I cannot understand it. However, I dare say that I am one of those old-fashioned people who like England to be England.

I do not like the regulations. I do not like intensive farming but, on the other hand, they might he a great deal worse.

My Lords, at the risk of being tedious, I shall complain once again about the indiscriminate way in which important business is raised during what is supposed to be a break for supper. I hope that the Procedures Committee will look very closely at the convention to see whether something better cannot be arranged.

I think that this debate reflects matters of much greater importance than the regulations themselves would suggest. I find it extremely congenial to be in the company of those who are interested in this subject, but I deplore the fact that the majority of noble Lords go to join in the social life available at Westminster, while some Members remain behind to do what they believe to be their duty. One day I shall become so impatient that I shall do something rash. I shall bring in my own sandwiches and have my own working supper. It will shame all those who are enjoying the amenities of Parliament to a greater extent than are those now present in this Chamber. I shall leave the matter there.

Of course the draft regulations are welcome, but they are 22 years behind the times. The Brambell Committee, which has already been referred to, began the analysis of the new development of intensive animal husbandry. The committee was set up by a Conservative Government in the summer of 1964 and reported in December of the following year when a Labour Government was in power.

At this point I must say that I deeply regret that the Labour Government in 1965 was so shamefully weak that they did not do something much more positive then. I share the responsibility for that, and I can only offer in extenuation the political circumstances in which the Brambell Report was received. At the beginning of 1964, the Conservative Government made a very generous farm price settlement. I am sure that they had no ulterior motive for doing so. When the Labour Government took office later that year and had to deal with the Farm Price Review in 1965 (of which body I was chairman) something had to be done to curtail the rising costs of agricultural support. But with a tenuous majority in the Commons, it was difficult to follow one unpopular measure with another. When the then Minister of Agriculture, my noble friend Lord Peart, who I very much regret is unhappily unable to be with us on these occasions, was going round the country to meetings of the National Farmers' Union, he had dead chickens thrown at him on account of the discontent with the Farm Price Review of 1965.

We should have grasped the nettle then, but we never have our time over again. These regulations are of the same type (though in some respects not as good) as those recommended by the Brambell Committee 22 years ago, which shows just how long it takes to make progress. People say that one cannot stop progress, but my experience has been that it is hard to get it going, and in this particular connection it certainly has been difficult.

We are now in the European dimension whereas in 1965 we were not. In 1965 we were masters in our own house although, admittedly, the rivalry in prices and production between agriculture in this country and Europe was still present. However, at least it was not governed by the disciplines and laws of the European Community. I was strongly in favour of Britain joining the EC as I realised that it would mean entering a new dimension and bring a new discipline that we should have to accept in the interests of the common advancement of policies throughout Europe. Today we are confronted with one of those policies.

One of the traits that I so much deplore in the human species is the way in which we treat animals. Our attitude seems to be that animals are either for slaughter, for domestication or for imprisonment. We put them behind bars, and when it comes to intensive animal husbandry living creatures stay behind some very small bars indeed. I make no apology for referring first of all to calves, which have probably suffered most. The Brambell Report recommended some quite positive conditions under which veal calves should be kept. The consumer fad for white veal is an abomination because we make the calf do its own bleaching by the manipulation of its food intake, by keeping it in darkness and not allowing it reasonable room for movement. There is not the slightest doubt that when we see a regulation about prevention of cruelty, cruelty is exactly what we mean. Cruelty, whether it be cruelty to animals to children or whatever, is of itself an evil thing. We have raised it to the level of a criminal offence in our statute law. It appears again in these regulations. This is the first time that regulations of this kind in respect of either poultry or calves appear in statute. Up to now we have relied upon voluntary compliance with a code of practice.

I am not a person to decry the nobility of response to voluntary effort and compliance with agreed standards which may not have the backing of statute law but have a strong moral influence behind them. Nevertheless, we now have these regulations, which appear 22 years after Brambell, to deal with calves. We are dealing with calves because the deterioration in the treatment of calves during the intervening period has been more than public opinion can take. I believe that that is another aspect of the situation in which we find ourselves at the present time. The mood of the consumer— which is expressing itself more and more in disquiet and distaste for many of the methods used in the production of animals as food—lies behind these regulations, welcome as they are. The deepest worries are aroused in the consumer by the amount of doping that goes on, the hormones that are pumped into animals, and the whole range of laboratory techniques used in the treatment of animals in confined areas.

With the decline in the need for intensive arable production in our farming industry there will be a strong demand that some of the land should be used to give more space to animals that are now kept in cages, crates and other confined spaces. That will be a good thing. As for cost, one of these days we shall have to preach the doctrine that the animals come first, and if they cannot be produced at the cost that one wants to pay, they will have to be produced at the cost that one cannot afford to pay. We shall then see what your priorities are. The public has not really been tested on its priorities. We have kept food prices low; we have kept rents low; we have kept everything essential low, in order that many disposable incomes can rise for use in many directions less desirable and less needful than those which should come first in domestic expenditure.

By 1993 or 1995—I do not suppose for a moment that I shall be here to see it—something will be moving in this field which it will be impossible to disregard, and all these square centimetres, inches, slope of the floors and slats will be going out of animal production. I sincerely hope that it will.

On calves we have practices which have grown up and become intolerable, and which are now to be made unlawful. We are creating criminal law tonight in the supper break and I think we should understand that that is so. I welcome that. Even so, looking at the draft order on calves, I find some difficulty in satisfying myself that charges will stick and convictions will be made under such loose phraseology as we have in the regulations. This is the reason why, unwelcome as it may be sometimes, it is necessary to prescribe fixed dimensions and precise conditions to which conduct can be related.

If you look at the regulations, there are one or two conditions for keeping a calf which—I do not know—may be somewhat difficult to prove. They read:

"the calf is free to turn round without difficulty".

How difficult should it be for a calf to turn round without difficulty? Your Lordships know what the lawyers make of the construction of words in statute law when they get busy, and the absence in the draft regulations of something more specific about space and room for calves is to be regretted.

I am not part of the indiscipline that has kept us running late with our supper break; and I am not feeling constrained by any suggestion that we have an informal timetable on this debate—we have not. The House cannot resume on the Criminal Justice Bill until we have finished. I think that we should finish in our own time. It is important to assert our right, if we are to discuss matters during the supper break, to extend the supper break to fit our feeling of discharging our duty, which is what I am doing.

I once described the battery hen, as the most miserable being in the feathered world, and I think that is still true. Here we have more specific regulations on space to be available. The nub of the problem about the regulations for the battery hen is the difference between the standards that we wanted and those which were obtainable, and the extent to which the regulations alter the directive of the EC on minimum space. That is really what is bothering the industry and is probably perplexing other people, too.

This arose when we knew of the directive of the EC earlier this year. I remember commenting on the fact that we should receive an EC directive on a lower minimum standard than we were asking the industry to provide under the voluntary code in this country, and a great many producers have sustained their business on a higher standard of space than that provided for in the EC directive. But the draft regulations depart from the EC minimum in the case of cages containing a smaller number of birds.

It is interesting to bear in mind that Brambell recommended that no cage should contain more than three birds. Now we are talking about one, two or three as if they are the smaller fry. The real business of keeping poultry today is with five and six in a cage—a sort of flock—so that they can use each other's space. The trouble about using each other's space is that you get in each other's way and that leads to all sorts of bad habits in all species. Even human beings crowded together can scarcely behave themselves in a decent fashion. It is not a hit surprising that we get cannibalism and other malpractices from one bird to another.

But the industry is saying what the regulations, as drafted, require them to do in the future, not now—and this is another feature of these regulations which we must remember. It is a phasing-out and a phasing-in process which could last a long time. For calves it is two years. For poultry it can be seven years, with a review to begin before that so that the period might not be extended unless absolutely necessary.

But it will be in the law, it will be in the regulations, and they will have the force of an Act of Parliament. The industry will have to adjust itself to the prospect that when that time comes these regulations may become fully effective. This may give rise to problems of relationships with production costs in Europe and other matters related to the EC.

But one of the things we must require in the interval is some evidence of compliance—enforcement, indeed—of the EC directive in some of the countries in Europe. We may think that 450 cm2 is a bit on the low side, and it is; but countries that have no minimum standards will have to comply with the EC regulations or should do. We want to be very clear that that is likely to be possible.

Altogether I think that this is a much more auspicious occasion than one would have realised. It is the first time that we have put in the statute law conditions in these two fields of intensive animal husbandry. That itself is a notable step. Secondly, it is the first time that we have standards set out in a European Convention. We are now part of the European dimension and that we have done for the first time and lent our influence as best we could in the European discussion.

Therefore I think I can chide the Government with having no idea how to celebrate their achievements—certainly not in the supper break. There ought to have been something much more notable in the reception given to these regulations than has been possible in the rather secondhand shop conditions in which we are debating this matter at the present moment. But it is an achievement and the Government have to be commended on that. Here we have something on which to build, and bring the future consideration of this problem into the pool. I sincerely hope that this is the beginning of the next phase in the treatment of birds and domestic animals and will set in motion not an extension of this system, but a departure from it and to embrace much more civilised conditions for keeping our animals in the future. A country that cannot treat its animals decently is not worth much in the estimation of posterity. We might as well make up our minds that if we cannot be great at least we can be civilised.

My Lords, before my noble friend replies I wish to follow on one point which was made by the noble Lord, Lord John-Mackie, regarding agricultural land. Why is it necessary for those words to be included in the regulations? It could be because a number of battery hens are kept on land which is not agricultural land. There could also be a few calves which are kept in back gardens and therefore not covered by these regulations. I think that they should be covered by the regulations.

My Lords, at the risk of a cold supper I must say a few words about the battery hen. I have kept hens all my life under every different system. I started off with free range hens then I progressed on to straw yards and dropping pits. I have tried all the different systems and I ended up with the battery hen system. In my experience hens which are kept in well run batteries are happier and better looked after than hens which are kept under other systems. They are also very productive.

In the case of a straw yard there is always the worry of rats, which are very difficult to keep out of straw yards. Farmers tend to drop eggs on the straw. Perhaps they do not pick those eggs up and they may get picked up the following day. All those problems are involved. There is also bullying among the hens.

The ideal way to keep hens is to have about 10 hens and a cock in a farmyard where they all have room to spread. That is fine and lovely but once one starts to increase the number the hens begin to fight and bully. The hens get miserable and some get their bottoms pecked. If one puts them into cages in a well run battery house, anyone who walks into that battery house, who knocks on the door before he goes in and walks down the rows quietly finds that the hens will talk to him. They are as happy as Larry. They produce lovely eggs.

The nigger in the woodpile as regards eggs is when they reach the shop. More damage is done to eggs when they get into the shop than ever happens to them on the farm. The first thing people notice when they enter a shop is that the eggs are stuck in the window. The sun pours in on them and they are subject to evaporation. If people want a decent egg they should get it as soon as they can from the hen and keep it in the right conditions, with the right humidity and with the appropriate ventilation. If it is kept under those conditions and sent straight to the customer the customer will get a beautiful egg and he will never be able to tell the difference between an egg that has come from a battery hen and one that has come from the outside. However, if that egg is taken into a shop, is warmed up and then cooled down, the customer will get a horrible egg. I agree that such an egg is horrible. There is a very noticeable difference between a really fresh egg and one which has been battered about.

My speech may have meant that we shall have our supper a little later but I had to say something about the battery hen.

My Lords, this debate has certainly reflected the level of interest and concern that is expressed by a wide cross-section of the public on these subjects. As I am deeply concerned about any cruelty to animals, after listening to the powerful pleas by the noble Lord. Lord Houghton of Sowerby, and the contrasting remarks of my noble friends Lord Hives and Lord Wise, I feel like a rather battered old bird myself. I shall try to answer as many points as I possibly can as fast as I can.

I am very grateful for the welcome by the noble Lord. Lord John-Mackie, for the regulations. The vague drafting that he talked about is the result of having tried to follow the directive as closely as possible. As regards agricultural land, which the noble Lord mentioned in the context of drafting. the definition comes from the enabling Act, the Agriculture (Miscellaneous Provisions) Act of 1968 which applies to all commercial farmers and smallholders. As regards calves being kept in darkness, the Government's welfare code requires that calves have suitable lighting. I hope that that is reassuring.

My Lords, the darkness provision is in a code, not a regulation.

My Lords, I see. With regard to the height of calves' withers the code was deliberately designed that way to cover animals of different breeds and sizes. I imagine that one would take the largest calf and choose its wither height.

On the question of A-frame cages, at the industry's request we have already obtained an important concession from the Commission that the directive's height requirements should apply only over the minimum cage area. Without that A-frame cages would have been ruled out. We shall keep the position in the industry under review.

My noble friend Lord Elliott of Morpeth, whose work as chairman of the Select Committee was widely respected, brought up several points and spoke about the time lapse. I shall return to that in a minute.

I am sorry that the noble Lord, Lord Somers, does not approve of these draft regulations because they are certainly aimed at improving the lot of just those animals and birds about which he worries and for which he suffers. He brought up the question of hormones. They are banned in poultry and calves. I hope that that will reassure him. The Community ban is on the way for other classes of livestock.

The noble Lord, Lord Somers, raised the question of government support for intensive farming. The risk to consumers is no greater than that from other foods. Intensive systems produce clean, good food, which most people want. People can buy alternatives if they wish to. They can even become vegetarians.

The response to the Brambell Report, which was mentioned by the noble Lord, Lord Houghton of Sowerby, was that the Government passed legislation, which was the Agriculture (Miscellaneous Provisions) Act 1968. We set up the advisory committee, which is now the Farm Animal Welfare Council. I am sure that the noble Lord knows that we started the work on welfare codes.

As regards the enforcement of regulations, my department's veterinary staff will be responsible for that. They will use their clinical judgment. If need arises we shall prosecute.

My noble friend Lord Elliott of Morpeth and many other noble Lords would like to see cages banned, but most eggs are produced under the battery system and no practical substitute has yet appeared. Free range and other systems have their place but they involve greater costs and hence greater prices, which most consumers seem unwilling to pay. The free range system in particular requires a considerably higher quality of stockmanship than is generally available.

Alternative systems are unlikely to take over from the battery system and there is no realistic prospect of a ban on cages. We are of course supporting research in this country and in other EC member states into alternatives to the battery cage. At our own farm in Gleadthorpe we are carrying out a trial into the aviary system. Early results have given some encouragement. There is a long way to go but that work and the work at Celle must continue.

I can assure the noble Lord, Lord Mackie of Benshic, that we shall continue to press for improved measures of care within the EC. as we have always done in the past. As regards enforcement in other member states, the directive specifically sets up the procedure for the Commission to check up on national arrangements. If others fall short. we shall pursue the matter in Brussels.

The noble Lord, Lord Houghton, hit a nail on the head when he spoke of the past. The Government have a delicate balance to maintain when helping animals; in other words, it is the art of the possible. The noble Lord and my noble friend Lord Elliott, as I said, deplored the length of time that it has taken to arrive at this stage. I remind your Lordships that we have the opportunity to progress even more through the review of the Community directive in 1993.

My Lords, I beg to move the motion standing in my name, That the draft regulations laid before the House on 15th July be approved. [2nd Report from the Joint Committee].—(Baroness Trumpington.)

moved Amendment No. 48:

After Clause 41, insert the following new clause:

Yes!

My Lords, subject to the views of any of the members of that group who happen to be present, I am speaking on behalf of the All-Party Penal Affairs Group, which is a solid body. I do not want anyone to think that this is a personal whim of mine. My old friend Evelyn Waugh, 20 years or more ago now, when Harold Wilson was forming his Cabinet, wrote to the mother of the noble Lord, Lord Donaldson—

My Lords, my wife!