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Lord Mackay of Drumadoon: My Lords, I do not wish to interrupt the noble Lord in full flow but I detect that he is reading from the Official Report of another place, which I recall the noble Lord, Lord McIntosh, reminding the House the other night was not appropriate.

Lord Sewel: My Lords, I thank the noble and learned Lord the Lord Advocate for his offer of help and guidance. I shall continue. The Scottish Police Federation said:

"At this time, we do not believe that electronic tagging would be appropriate to supervision requirements for young people under 16. We do not believe that electronic tagging would be a positive incentive to a child to demonstrate greater responsibility and self-control".

So it goes on. We wait to hear from the noble and learned Lord as to who was in fact in favour of tagging for the under-16s.

Another loss as a result of the Bill--it was referred to by many noble Lords who contributed to the debate--is that of supervision. The opportunity for supervision has been weakened. I believe that the point was made by the noble and learned Lord, Lord McCluskey. In some cases supervision will only be possible if the court decides it at the time of sentencing. That is surely a weakness because the judgment should really be made, and can really better be made, when the individual has reached the end of the custodial period and it can

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actually be shown that actually shows that supervision is supposed to be a supportive, reformist and beneficial measure in itself.

There are many things in the Bill which require further deliberation. In particular the whole business of the hospital orders has been referred to. I will not go into them tonight but it is an issue that is likely to cause great concern and worry to a number of noble Lords. However, the Bill we have tonight is, in some ways, slightly better than the Bill that was originally published in another place. There is much to do and, as we proceed in Committee, we will try to improve upon it further.

9.55 p.m.

Lord Mackay of Drumadoon: My Lords, this has been a useful debate and has demonstrated the value of having a revising Chamber. I can therefore pick up the point of the noble Lord, Lord Thomas of Gresford, about imagining this debate taking place in Scotland. The fact of the matter is that it would never take place in Scotland if the proposals of the noble Lord's party and of the party opposite were to be implemented, because the only Chamber that would look at a Bill of this nature would be the elected Chamber.

Lord Thomas of Gresford: My Lords, does not the noble and learned Lord agree that a devolved Parliament would have the time and the concern to deal in detail with all the provisions of this Bill?

Lord Mackay of Drumadoon: My Lords, I have no doubt that a devolved Parliament would have that time, but if the noble Lord had read the reports of the Committee stage of this Bill in another place, I defy him to suggest that the other place did not have sufficient time to sit and deliberate over this Bill line by line, clause by clause. As I will remark in a moment or two, it is abundantly obvious from the noble Lord's speech and indeed those made by noble Lords opposite that the two main Opposition parties are seeking now to take a different position from that taken by their colleagues representing the respective parties in another place.

To return to the point that the noble Lord raised, debate would not be possible in Scotland if his party's policies were put into operation. It would also not be possible in Scotland to allow members of the senior judiciary, either sitting in Scotland or who have formerly sat in Scotland, to participate in such a debate. So it may well be that on further reflection the noble Lord will feel that his reference to what may or may not happen in the future in Scotland was not a particularly happy one.

I welcome the support which many clauses of the Bill have received from various quarters of the House. Many detailed comments have been made in the speeches which have been carefully prepared. I will endeavour to answer some of them this evening, but it would clearly be impractical to answer them all. However, I undertake that where appropriate they will be answered by letter and certainly they will all be considered before this Bill reaches its next stages.

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The noble and learned Lord, Lord Hope of Craighead, drew attention to the fact that during the years that he was Lord Justice General in Scotland, it was the practice for the Government, the senior judiciary, those who work in the courts and those interested or involved in any way with the criminal justice system, to work together. He asserted, and I agree with him, that that was one fact which contributed to the high regard in which sheriffs and judges are generally held in Scotland. I reject completely the suggestion that that co-operation has broken down. Undoubtedly the publication of certain responses by senior judges to the White Paper published by the Secretary of State provoked a measure of media attention, media attention which in many respects I personally regret. For the fact of the matter is that that co-operation not only continues but has been developed since the present Secretary of State assumed office. As noble Lords will be aware, he has set up the Scottish Criminal Justice Forum, in which a senator of the College of Justice sits as a member as do two sheriffs and many others involved in the criminal justice system. That body has already met. It has begun to address one of the issues which the noble and learned Lord, Lord McCluskey, addressed--the problem of adjournment--and it is a practical example of how consultation and co-operation continue even if there may be differences of opinion as to what falls to be enacted in primary legislation in Parliament.

The noble and learned Lord, Lord Hope, said that he had no objection in constitutional terms to Parliament restricting the discretion of judges but that the counterpart of that was that it fell upon the Government to show leadership and to consult and listen to advice. If noble Lords consider the detail of what has been said during the debate it may be possible to take the view that following advice applies only if it comes from those who are actively involved in the criminal justice system but does not apply if it involves listening to members of the public and the victims of crime. I suggest that if one sits back and thinks about it that may explain why there was so much co-operation in another place on the part of the elected representatives of the various parties to give the Bill the fair wind that it undoubtedly received.

While I welcome the participation in our deliberations of noble Lords who are senior members of the judiciary, I regret to say that I personally could not conceal my regret that the noble and learned Lord, Lord McCluskey, sought to attack the Bill in the terms that he did. He has served uniquely among those who have spoken in the debate not only as a member of the senior judiciary in Scotland for many years but as a former Advocate Depute and a former Law Officer in Scotland. He is uniquely qualified to contribute to our discussions. I sincerely hope that when the Bill reaches consideration in Committee it may prove possible for him to moderate both the terms and the tone of any criticisms he seeks to advance.

Lord McCluskey: My Lords, if the noble and learned Lord would refrain from making personal remarks and reply to any of the points that I made, I should appreciate it very much.

Lord Mackay of Drumadoon: My Lords, I am happy to do that. Perhaps I may now accelerate a point

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which I intended to make later. When discussing the terms of Clause 1 the noble and learned Lord drew attention to what he alleged was a transfer of discretion to the Lord Advocate and sought--I hope he will forgive this term--to ridicule the Government's proposals by quoting from what Baron Hume said and what I understood to be engraved in the new Glasgow High Court building. Perhaps I may quote Baron Hume back to the noble and learned Lord in describing the Lord Advocate's role under reference to the sentencing process:

"The Lord Advocate is master of his instance ... even after he has brought his libel into court, it is a matter at his discretion, to what extent or effect he will insist against the pannel--

the old Scottish term for the accused person--

"and he may freely, at any period of the process ... restrict his libel to an arbitrary punishment, in the clearest case even of a capital crime".

He goes on to give an example.

"There was an instance...in the case of John Lyle who, in consequence, had sentence of transportation only though convicted of highway robbery--[a capital offence]. This restriction was made in consideration of...circumstances known to the public prosecutor".

In the same passage, Baron Hume referred to the,

"great confidence reposed in the Lord Advocate".

If the noble and learned Lord's concern is that the Lord Advocate of the day, through the exercise of his discretion as to the court in which proceedings will be taken involving qualifying offences has more say over whether a convicted person receives a life sentence from the sentencing judge, it may be sensible to pay attention to what Baron Hume had said and to his description of the extent to which the Lord Advocate has a power in the past and at present to limit the sentence which a judge can impose.

The law may have changed since Baron Hume's day, but even now there rests within the discretion of the Lord Advocate a power to influence or to determine the extent of sentence. From time to time in every year every Lord Advocate has to take decisions as to whether to insist on a charge of murder or depart from it and accept a charge of culpable homicide thereby giving the sentencing judge a wider discretion. The noble and learned Lord has exercised that discretion himself in the past. It is nothing new. It is one of the important constitutional principles that underpins the Scottish criminal justice system.

It may help to make progress if I do not deal in any great detail with some of the other comments made by the noble and learned Lord, Lord McCluskey. I undertake to read them again, but I find it difficult to depart from the comments to which he takes exception.

Perhaps I may move on to the points raised by the noble and learned Lord, Lord McCluskey, which were clearly supported by the noble Lord, Lord Sewel. Both made it clear that this Bill cannot expect the smooth passage in this House that it received in another place. One can only watch and wait so far as concerns that matter.

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