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Lord Hacking: Perhaps I may intervene for a few moments. I am very glad that my noble friend told us at the beginning of his address to the Committee on this amendment that we should not take the amendment seriously. I was therefore happy to hear him say that what we should be taking seriously is the need of the Government to have to place Clause 22 in the Bill at all. That need arises out of what I believe to be a most regrettable change in the Government's penal policy in introducing new measures which (but for this clause) would result in, if the Bill goes all the way to enactment and enforcement, prisoners serving different sentences in prison for the same offence.

We must look at the clause itself and how it would operate. I have to say to my noble friend and to the noble Lord, Lord McIntosh, that their amendment does not help one whit in the actual operation of the clause. If a judge was thinking of passing a sentence of three years, six years or nine years, it would be a matter of fairly easy arithmetic for him to apply his mind to Clause 22(1) and (2) and reach a period of imprisonment which was at a rounded figure. But if the learned judge was thinking of a different period of imprisonment--for example, five years--he would then face a somewhat difficult arithmetical calculation.

I do not tell the Committee that I am necessarily right, without a calculator and sitting in the Chamber as the noble Lord was speaking, in my calculations, but I have calculated that if the judge was wishing to impose a five-year sentence or would have wished to impose a five-year sentence, before the Bill came into force, and therefore had to turn his mind to Clause 22, the actual result of that would be that under Clause 22(2) he would have to apply a sentence of 3 years, 108.32 days. One would hope that he would not go to that detail but that is the consequence of the kind of arithmetical calculation that the judge--I have to put it this way--would absurdly have to apply.

I took the period of five years for a reason. When my right honourable friend the Home Secretary was

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originally having his first thoughts--if I may describe it in that way--about this new sentencing policy he actually said at a Conservative Party conference that, "Five years will now mean five years". Therefore, one must assume that five years is a period of imprisonment that the Home Secretary had in mind when he was introducing this Bill. That is why I chose the period of five years and made the calculations, which I put to the Committee, on the basis of five years. Indeed, in the law courts, five years is the kind of rounded figure that judges choose when appropriate for the offence.

So the basic question which I understand my noble friend to be asking and which I certainly ask of the Committee, is this: Does this change in penal policy make sense? Is it meeting a public demand that more should be done to deal with the problems of criminality now, at the end of the 20th century and at the beginning of the 2lst?

When my noble friend the Minister addressed the Committee earlier on this matter she said, stepping aside from the views of the judiciary, that she was travelling on the upper deck of a London bus. I speak as a lawyer, but she did not choose to say that she was on a Clapham omnibus and, therefore, that she would have had next door to her "the reasonable man" who was somehow identified in the 1930s, I believe, by Lord Atkin--I hope that the noble Lord, Lord McIntosh, is enjoying this little legal seminar--in order to establish the test of reasonability in civil cases.

But what I am concerned about, with my noble friend, is that I believe she misjudges the views of her fellow passengers. All I can do is to encourage her, in a very humble way, to start talking to our fellow passengers on the upper deck of the omnibus even if she is not travelling on the Clapham omnibus. If she talks to them I believe that she will find that her fellow passengers will say, at the point of sentence, when somebody has committed a very serious crime, "Yes, there should be a severe sentence. They should be passed at 10 years, 15 years or even longer". I believe that she will also hear from them that in certain cases that period of imprisonment should mean exactly that--10 years or 15 years. The most painful example of that is the Moors murder case, where the view has been taken by successive Home Secretaries that a life sentence for the two accused means a life sentence.

However, when my noble friend is travelling on the omnibus, I believe that she will find many fellow passengers who say, "There is a time for clemency; there is a time for the operation of the parole system; there is a time to let people out; that the public need for the condemnation of the offence and the passing of a severe sentence has been spent and that we now should move on because we cannot stay there. The Chief Whip is acting as the conductor at the moment and he is wanting to collect the tickets. I say to my Government Chief Whip that this is the only intervention that I have made in Committee this evening, and therefore if I have taken a little time I apologise to the Committee. But I have a very serious point, which is that Clause 22

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identifies the mistaken policy of the whole Bill and produces an absurdity. That is why I believe that it should not be there.

Lord McIntosh of Haringey: I have no particular objection to legal lectures, but I am not very keen on them at nearly 11 o'clock at night. I suspect that my attention span is shorter than it might be at other times of the day. I shall confine my remarks to Clause 22 and not to the generality of the Government's policies.

It is a self-contradictory clause, which purports to say in subsection (1) that people should spend the same time in prison as they would have served if the offence had been committed before the commencement of this part of the Bill. Subsection (2) fails to achieve that because it fails to recognise that there is a difference in the release procedures between those sentenced to more than four years and those sentenced to less than four years.

The amendment which has been moved and to which I have added my name, is a gross over-simplification. To correct the matter should not be to put in two-thirds for over four years and 60 per cent. for over four years. It should be an algebraical formula which reflects that part of the spectrum of sentences which is over four years and that part which is under four years. But there is no doubt--and Mr. David Maclean in the Commons acknowledged this--that, mathematically, subsection (2) does not achieve the objectives of subsection (1). Therefore, purely rationally and objectively, this amendment is better than the Government's proposals, even though it is not sufficiently accurate.

I am sorry to say that my fear is much more that judges will not find it possible to reduce the nominal sentences so that there is not an increase. I find the memorandum on the financial effects of the Bill totally unsatisfactory. It states:

"It is estimated that the proposals in Parts I and II for mandatory custodial sentences and new early release arrangements would eventually result in an increase of around 11,000 in the prison population".

It is an insult to Parliament to add together the totally different effects of Part I as regards mandatory minimum sentences and Part II as regards early release arrangements and to give only the total effect without distinguishing between the two. That is insulting to Parliament. If those are different influences on the prison population, they should have been given separately in the memorandum on the financial effects of the Bill.

I am sorry that this question has only just occurred to me but since we have made some changes in Committee to the mandatory minimum sentencing procedures, it will now be necessary to table Written Questions in order to establish what is the differential effect of those two parts of the Bill on the prison population. I shall table those Questions. In the meantime, this amendment, although imperfect, is certainly an improvement on the self-contradictions in Clause 22 as it stands.

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11 p.m.

Earl Russell: I listened with fascination to the noble Lord, Lord Carlisle of Bucklow. He reminded me vividly of my former headmaster attempting to demonstrate the difficulties of long division in Roman numerals by doing it on the blackboard and waiting for the bright mathematician at the back of the class to put up his hand and say, "Sir". We do not appear to have a bright mathematician in the Committee at the moment. But the noble Lord, Lord Carlisle of Bucklow, has illustrated with quite painful clarity the difficulties of operating the procedures laid down in Clause 22. Of course, I have heard many people speak to precisely that point. I have never understood with such clarity quite how difficult an operation we are asking our judges to perform.

It is very much like the operation that some of us attempted to perform when we converted to decimal currency. I very soon discovered that it was quite impossible to convert the new prices at which I was looking into what they would have been in old prices and, first and foremost, it was because prices in different commodities inflated at different rates. In very much the same way, sentences for different offences inflate at different rates. First one offence and then another attracts the spotlight of attention and sentences go up.

Therefore, I do not think that this job can be done at all. The clause asks the judge to impose the sentence that he would have considered appropriate if the offence had been so committed. It is asking the judge to answer a hypothetical question. I understand very well why Ministers do not like answering hypothetical questions. It seems to me that that argument can apply equally well to judges. The judge might well reply, perfectly logically, "Well, I wouldn't have started from here in the first place". If he had been in a different situation, he would not have been thinking the thoughts that he is then. I do not see that he can know what sort of sentence he would have imposed if this Bill had not come into effect. The implications of that for the costings of this Bill, as the noble Lord, Lord McIntosh of Haringey, points out, are very serious. I was equally fascinated by the noble Lord's point about the costings of the two parts of the Bill. I will look at the Written Answers with a great deal of interest.

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