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Lord Macaulay of Bragar: My Lords, I apologise for interrupting the noble and learned Lord. Is he referring to me or to the noble and learned Lord, Lord
McCluskey? The noble and learned Lord referred to the noble and learned Lord, Lord McCluskey and the noble Lord, Lord Sewel.
Lord Mackay of Drumadoon: My Lords, if I did so, it is an error on my part. It has been brought about by the lateness of the hour. I apologise.
The words of the noble Lord, Lord Macaulay, as I noted them, were that there was no guarantee that this Bill will receive the smooth passage in this House that it did in another place. The words used by the noble Lord, Lord Sewel, were put in a slightly different way, but clearly signal a significant change. We await with interest to see what amendments come from that quarter.
Lord Sewel: My Lords, is the noble and learned Lord the Lord Advocate aware that all the comments that I made in my speech are grounded in the points made in the previous debate by my colleagues in another place? The Lord Advocate is trying to be mischievous. He is trying to drive a wedge. There is no wedge: there is not even a cigarette paper between myself and my colleagues in another place.
Lord Mackay of Drumadoon: My Lords, with great respect, I find that virtually impossible to accept. I have seen the amendments tabled by the noble Lord's party in connection with the Committee stage of the Crime (Sentences) Bill. On the basis of what has been said this evening by speakers on the Benches opposite, I expect to see similar amendments to this Bill. If they were not tabled in another place, I find it impossible to understand how there has not been a change of position. As I have said, I am content to wait and see. It may be that, for the purposes of making progress, noble Lords might find it advantageous to listen to my remarks, which inevitably have to cover a number of points in a comparatively short period of time.
The noble and learned Lord, Lord Hope of Craighead, raised important issues to do with the cross-Border implications of the Bill. As he correctly said, he raised these matters in connection with the Crime (Sentences) Bill. Action has been taken to address them, and I am very sympathetic to the idea of doing something similar here. Like other noble Lords, he raised important issues about the approach required to be taken to the application of the provisions relating to exceptional circumstances.
The Government's position is that it would unnecessarily trammel the discretion of the court to provide further specification on the face of the Bill of what would or would not constitute exceptional circumstances. The noble and learned Lord made detailed points on which I will certainly reflect before Committee stage. The policy, as clearly explained in another place and as enshrined in the Bill, is that it is for the court to determine where exceptional circumstances apply which may lead to a particular judge deciding not to impose an automatic or minimum sentence in a particular case. But this matter merits further consideration, and I undertake that that shall be carried out.
I have already adverted to the discretion of the public prosecutor. This matter was touched on by the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay of Bragar. I believe that both noble Lords suggested that prosecutors might be encouraged by the provisions of the Bill to do a variety of things. First, it was said that they might charge a less serious type of offence than would currently merit prosecution in the sheriff court when they might not otherwise do so. It was said that they might in some way threaten an accused person that if he did not tender a plea in the sheriff court he would be indicted in the High Court. It was suggested that in a variety of ways the Lord Advocate and his deputes, who include the Solicitor General for Scotland, might seek to circumvent the will of Parliament. I resist unequivocally the suggestion that the Lord Advocate would do such a thing. Of course, he has the discretion described by Baron Hume in the passage I have already quoted, but the suggestion that the Lord Advocate of the day would act improperly to circumvent the provisions of the Bill and thereby avoid any unfairness that an individual prosecutor might perceive is one that I resist. I hope that on further reflection noble Lords will accept that that is not a valid criticism of the Government's legislative proposals.
I turn briefly to deal with two points made by the noble and learned Lord, Lord Clyde. He referred to the increased sentencing powers of the sheriff court and how they might give rise to inconsistency. He drew attention to the existing power that a sheriff had to remit. While undoubtedly the power to remit exists, it is not one that is always used. While it would always be open to the Lord Advocate to challenge by an appeal a sentence imposed by a sheriff and suggest that he should have remitted the accused after conviction, I venture to suggest that it would be very difficult for the Lord Advocate to satisfy the Appeal Court that the sentence imposed required to be a High Court sentence if the case had not been indicted in the High Court in the first place. Since this matter was last considered, sentencing guidelines have come along. The Secretary of State recently announced the introduction of a more formal system of judicial training in Scotland, making resources available to the judiciary to conduct training as it deems appropriate. Those developments, plus the local knowledge which sheriffs can undoubtedly bring to bear on local cases, have persuaded the Government that there is merit in increasing their sentencing powers.
The noble and learned Lord referred also to the provisions in Clause 20. I have already dealt with that to some extent. He stressed the importance of the prosecution playing an active part in the sentencing procedure. To some extent, that is a development which is already taking place, because, as I am sure the noble and learned Lord is aware, the Appeal Court in Scotland has already held that if the prosecutor does not seek to correct any factual statement made by the defence with which it does not agree while the
sentencing procedure is taking place in front of the trial court, then it is held bound to accept what the defence position was, irrespective of what its own information may be.I shall move on to the implications for the prison system of the Government's proposals. A number of noble Lords have spoken about Scotland having one of the highest prison populations. Certainly, when expressed as a rate per head of population, there is substance in that comment. However, an alternative approach is to compare the prison population with the level of recorded crime. If that approach is adopted, then a different picture emerges. On the basis of the latest published information, which relates to 1995, we find that Scotland's rate of imprisonment is lower than that of many other European countries. Indeed, out of 14 other countries for which equivalent data are available, eight have higher rates than in Scotland, so it may be that there is not quite the force in that line of criticism as noble Lords might first have expected.
The noble Lord, Lord Mackie, stressed the importance of rehabilitation. That is a policy which the Government support, and support in the Bill. The structure of the early-release provisions will reward prisoners who co-operate with programmes in prison which seek to address their offending problems and any drug problems that they may have. It cannot be denied that that must have a beneficial effect on rehabilitation. Equally, supervised release orders, seeking to target those who are most in need of supervision, also go along that line.
Some question has been raised about the additional resources which may be required if the sentencing provisions have the effect of increasing the prison population. Reference was made to the fact that the English Bill has a clause which requires the English courts to take account of the new provisions when imposing sentence. That was another matter upon which the Government consulted fully in bringing forward this legislation. The then Lord Justice Clerk, Lord Ross, said in his reply to the consultation paper:
- "A judge when imposing sentence selects the sentence which is appropriate for the offence and for the offender and he does not take into account when doing so that the prisoner may be released before he has served the full sentence".
He referred to certain case law in support of that view. I know that similar consultation took place with the noble and learned Lord, Lord Hope, when he was Lord Justice General.
As a matter of law, the situation is different in England and Wales. That has been the position since at least 1992 when the then Lord Chief Justice issued a practice direction on how sentencing should be approached under the Criminal Justice Act 1991. It is therefore not surprising that the Crime (Sentences) Bill proceeds on English experience. As a clear answer to one of the criticisms made by the noble and learned Lord, Lord McCluskey, the fact that there is no similar provision in the Scottish Bill proceeds from the results of consultation with the two senior judges sitting in Scotland at that time. If it leads to an increase in the prison population the Government are committed to
making those resources available. The provisions will not be brought into force until the prison system is able to deal with the situation.I turn to the issue of tagging of under 16 year-olds. I apologise for interrupting the noble Lord, Lord Sewel, if I did not fully understand the guidance given to the House the other night by the noble Lord, Lord McIntosh. Having listened to the rest of what the noble Lord quoted, it was obvious that he misunderstood the purpose of the consultation exercise to which he referred. I hope that he will not take exception to that remark. The consultation exercise to which he referred concerned a suggestion that tagging should become a condition of a supervision requirement, which, as he knows, is not imposed by the courts but by the Children's Hearing. As he correctly mentioned, various people in Scotland, whether Left-wing, Right-wing or in the centre, opposed that proposal. The Government listened to those responses and have no plans to introduce tagging as a condition of a supervision requirement. That is a good example of how the consultation process continues and is working.
The noble Lord may also know that in Scotland people under the age of 16 are prosecuted only on the express authority of the Lord Advocate. It is a very, very rare occurrence indeed. Normally when it occurs it is for a very serious crime and the issue of tagging is unlikely to arise. However, where there is an exceptional prosecution there may be an exceptional case where tagging would be appropriate. No doubt any sheriff or High Court judge seeking to impose the appropriate order would think long and hard about the family circumstances of the individual and any other relevant personal circumstances before imposing such an order and having it surveyed by electronic tagging.
I turn to the issue of legal aid. Despite the criticisms of the Government's proposals which have come from many quarters, there is widespread recognition that there is a concern about the increase in legal aid. Part of it may be caused by the problems of managing the criminal courts of Scotland. The Criminal Justice Forum is one practical way of dealing with such a problem. However, there may be others, and having a good hard look at the criminal legal aid scheme is one. That, too, is a matter which those participating in the Criminal Justice Forum, which includes defence solicitors and a member of the Faculty of Advocates who has previously served as an advocate depute but now acts as a defence counsel in the High Court, are perfectly willing to address.
A number of points were made about the code of practice and a number of criticisms were advanced with the support of or on behalf of the Law Society of Scotland. Noble Lords may be interested to learn that the Faculty of Advocates, the other branch of the profession in Scotland, has been fairly supportive of a number of proposals. I look forward to dealing with them in detail in Committee.
My noble friend Lord Balfour, in his usual inimitable manner, put forward some technical and interesting points about the Bill as currently framed.
It may be a difficult Bill to follow, but attempting to do so is much helped by the consolidation of criminal procedure legislation which took place in 1995. I intend to write to my noble friend to respond to the detailed points that he made. If my answer does not provide satisfaction, we can no doubt meet, as we met in connection with previous Bills, to seek to resolve those matters.
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