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Mr. Maclean: I am sure that my right hon. Friend has studied the transcript of the Lord Chief Justice's comments on "The Frost Programme", when he was asked what the effect would be of any amendment to substitute the present words with words such as, "according to the justice of case". He said that it would enable the judge to avoid passing a mandatory sentence in any case where he considered it simply anomalous to do so.

7.15 pm

Sir Peter Lloyd: I was aware of those words. It shows that it is difficult to find the right ones. The Government have not done so. The hon. Member for Meirionnydd Nant Conwy, who moved the amendment, might not have found the right ones, but I am sure that, before the matter returns to the House from the Lords, even if we do not make a change here, the right ones need to be found because the present ones are simply not satisfactory.

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The Lord Chief Justice was not as confident in his own form of words as perhaps he should be because the form of words on the amendment paper would still mean that the courts--this is the way in which the Bill is constructed and my right hon. Friend the Minister of State, if he reconsiders it, will find that that is so--would generally be expected to impose the mandatory sentence. They would be able to substitute a lesser one only when the judge had explained why that lesser sentence was necessary in the interests of justice. It will have to be the mandatory sentence, unless there are good reasons why not. Those reasons will no doubt be subject to guidance from the Lord Chief Justice and--this is an extra point that is not in the amendments--the prosecution should be able to appeal against them if they find them unacceptable. Far from a retreat, the Government should regard that as giving them a victory on all the essential points, while enabling them to avoid the injustices that the Bill's present wording will certainly produce.

If my right hon. Friend the Minister of State is just going to reject the amendments without the qualification that the Government will reconsider, especially in another place, he will be saying that, in these particular cases, he does not want the courts to take the needs of justice into account. Inevitably, with mandatory sentences, he will, in practice, be writing occasional injustice into the law.

If nevertheless, as I say, the House does not accept the amendments, I hope that another place will give us a second chance. For some of the reasons that I have already given, in a way that would be better. Their Lordships may find a form of words that more effectively meets the needs of justice without frightening the Government that nothing will be changed. Their Lordships should certainly be able to illuminate sentencing practice and show how it can be improved not just for offences that attract mandatory sentences, but for the whole range.

It would be doubly satisfactory if these amendments were first made in the other place. The Labour party would see the undemocratic second Chamber that it wants to replace doing the Opposition's proper job for them, while the Government, who want to preserve the present Lords as a revising Chamber, are obliged to benefit from its revisions. Perhaps that is our subtle Home Secretary's grand design: to demonstrate the usefulness of the other place as it is presently constituted while giving a powerful incentive to the judiciary to turn its collective mind more thoroughly to matters of sentencing, which worry, rightly, many people, so enabling him to accept gracefully a suitable amendment there, "exceptional circumstances" having served its purpose as a catalyst.

Mr. Beith: I have rarely heard a complex case deployed so brilliantly in the House as it has been by the right hon. Member for Fareham (Sir P. Lloyd), after the amendment was competently and ably moved by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd). The amendments go to the heart of the Bill. I will deal with the general principles that they raise, but first I want to refer to amendments Nos. 32 to 35.

Those amendments, tabled by Liberal Democrats, are designed to enable the courts to pass mental health disposals on mentally disordered offenders who would

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otherwise have to be given automatic life sentences under clause 1, or mandatory minimum sentences under clauses 2 and 3. At present, when a court is satisfied that an offender is suffering from a mental disorder falling within the provisions of the Mental Health Act 1983, it can make a hospital order, if appropriate combining that with a restriction or guardianship order. Those options are ruled out by the Bill.

Mental disorder could not be interpreted automatically as amounting to an exceptional circumstance. It is just possible that the Minister thinks that it could be treated as such a circumstance; I hope that in due course he will say whether he thinks that it should automatically be regarded in that way, or whether a court could in any appropriate set of circumstances regard it as such. I consider this a pretty far-reaching use of the word "exceptional", and I think that a court would find it difficult to apply such an interpretation. I therefore proceed on the assumption that, other than in a case that is itself exceptional even within that category, the option is ruled out.

The Home Office and Department of Health guidance document entitled "Mentally Disordered Offenders: Inter-Agency Working", published in 1995, states:

"Detention in prison is likely to be damaging to the mental health of a mentally disordered person, and the Prison Service is not equipped to provide treatment equivalent to that available in hospital."

I ask the Minister to talk to prison officers about the problems that they now experience with people whom they believe to suffer from mental disorder who ought to be in hospitals rather than prisons. The task of running a prison and providing a regime that will rehabilitate at least some offenders is made immensely difficult when--as seems to be the case now--an increasing proportion of those offenders are suffering from mental disorder, and that increase will be very much greater if the court does not have the option to take the mental health route in circumstances such as those that I have described.

According to a briefing prepared by the Law Society's mental health and disability sub-committee, in conjunction with the Royal College of Psychiatrists,

"While the Committee agrees that the public needs protection against persistent offenders, it believes that this will not be achieved by sending mentally disordered offenders to prison for a minimum of three years. Indeed, imprisonment is likely to have the opposite effect, since the mental health of the offender is likely to deteriorate while in prison, before being released untreated and unsupported into the community . . . Those mentally disordered prisoners who are eventually released are more likely to continue to pose a risk to the public, since their disorder may well have remained untreated during their imprisonment and it will prove far more difficult to ensure continuity of effective care from prison to the community, than from hospital to the community."

We all know how difficult it is proving, within the community care programme, to cater for mentally disordered people with a tendency to commit offences who are now at large in the community. If such people are released from prison without treatment and without follow-up from mental hospitals, there will be even more of a problem.

It is feared that hospital orders made under the Mental Health Act would be inadequate to protect the public from some mentally disordered offenders. I presume that that is why the Government are closing off that option. It is worth emphasising, however, that in practice most offenders who are given hospital orders combined with

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restriction orders are kept in hospital for longer than they would have spent in prison. They are kept "out of harm's way", as the Home Secretary might like to think of it, and will not be able to commit offences for longer than would be the case if they received prison sentences.

A restriction order can be made when the court considers it necessary to protect the public from serious harm. Most restriction orders are made without time limits: they subject the offender to indeterminate detention. Decisions on release are made by a mental health review tribunal, and the patient is discharged under conditions that entail permanent liability to recall to hospital. All that gives the public much more stringent protection than is available under the mandatory sentence procedure. The procedures are similar in effect to a discretionary life sentence, but they require detention in a mental hospital rather than in prison.

To remove the court's discretion to pass an order ensuring that a mentally disordered offender receives the care and treatment that he or she needs is surely unacceptable. The amendments would retain that discretion, enabling the court to consider alternative disposals more suited to the needs of mentally disordered offenders, which in the long term are likely to protect the public more effectively. If the Home Secretary's watchword is that he is doing all this to protect the public, in the case of mentally disordered people he ought to take a route that is likely to provide that protection.

Let me turn to the wider issues raised by amendment No. 6. It would insert the words

"in the interests of justice".

The arguments advanced so far are very persuasive--for example, the argument that unless that wording is included far more guilty people could be acquitted, and the argument that the abandonment of the parole system, with its system of automatic recall, will seriously undermine the protection of the public. I believe that the Bill's provisions have a more political than penal purpose, and that the Government do not seriously intend them to be carried out. If those provisions are passed unamended, the number of people committed to prison, and the time for which they are committed, will be such as to require--according to the Government's own estimate--the building of 12 new prisons, with 11,000 more prisoners. Other estimates are much higher.

There is no provision in Government finances for the building of those prisons. There is provision for the building of eight other new prisons, but they are intended to deal with existing overcrowding rather than the effects of the Bill.

The provisions will not come into effect fully for 12 years. That, too, is stated in the Bill's financial memorandum. The Government seek to convince the House that, unless the Bill is passed unamended--without amendments such as amendment No. 6--the public will be denied the immediate protection that they would secure from the commitment of large numbers of people to prison very soon, but that is simply not the case. If the Bill's provisions were implemented at all, it would be over an extremely long period. The fact that, without an amendment of this kind, the Bill would require so many prison places is an admission that the Government do not believe that it will deter crime. Far from keeping people out of prison because they do not commit crimes, it will

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lead to the admission of many more prisoners. That in itself constitutes an acceptance that the measures will fail to achieve their supposed purpose.

If the measures were real and serious in their intent, there would have to be a huge reduction in the funds available for other Home Office functions, particularly those relating to policing and crime prevention. I know of no Minister who has gone on record as saying that he is prepared to sacrifice £1 billion or more from funds for his departmental programmes to provide for those functions, and I know of no indication from the Treasury that it has found resources elsewhere for the purpose. The money is bound to come from somewhere in the Home Office budget. If the courts do not have discretion to apply sensible sentences and are trapped in the mandatory system, the effect on policing and crime prevention will allow many more crimes to be committed, thus weakening protection of the public.

Labour's apparent support for this part of the Bill, and its unwillingness to amend it, imply a similar commitment to the expenditure of substantial resources. I wonder what the right hon. Member for Dunfermline, East (Mr. Brown) has to say about that. He is supposed to have enjoined all his Front-Bench spokesmen not to make spending commitments, but there is a huge spending commitment at the heart of the Bill.

As I understand it, by not objecting to the mandatory sentence principle and not supporting the kind of amendment tabled by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), Labour is also accepting built-in injustice in the sentencing system. The purpose of amendment No. 6 is to ensure that the courts can take into account justice in the passing of sentences. If we deny them that power, we accept that unjust sentences will be passed, because the circumstances are not sufficiently exceptional. I do not know how the Labour party can stand by that principle, but it appears to be doing so.

It is vital that an amendment along the lines of amendment No. 6 is included in the Bill. I endorse what others have said: if this House does not do it, it will have to be done in another place. I also ask the Minister, however, to look carefully at the points about mentally disordered convicted persons which I made earlier.

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