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Lord Mackay of Drumadoon: I think that the noble Lord, Lord Sewel, will be happy to explain that on this occasion, for once, the Lord Advocate is correct.

Lord Sewel: It may be helpful if my comments relate to Amendment No. 1 and the Bill as drafted. Following some of the comments that have been made, perhaps I should make it clear where we on this side of the Committee stand on the amendment. We have constructed and phrased Amendment No. 1 quite deliberately to achieve a purpose. That purpose is to maintain judicial discretion within the framework of an expectation of an automatic sentence. The amendment seeks to provide the right degree of discretion and the right degree of flexibility. That is the purpose and essence of Amendment No. 1 in its entirety.

I have listened very carefully to what the noble and learned Lord the Lord Advocate has said about judicial discretion as it now stands. I am in a complete fog. At one moment the noble and learned Lord appears to be saying that the view of the Solicitor-General that nothing in the Bill will reduce judicial discretion is correct and at another moment he supports the view of the Minister of State in the other place that exceptional circumstances will be construed very narrowly. I cannot resolve those two totally different positions in one compatible, coherent sentence. It is not resolved by the noble and learned Lord the Lord Advocate saying in reply to the noble and learned Lord, Lord McCluskey, that his total discretion is not taken away. What the amendment seeks to do is to give clear guidance and power to the court:

"... the court shall have regard to the specific circumstances which ... relate to any of the offences or to the offender; and ... make the prescribed custodial sentence unjust in all the circumstances".

That is where we stand and what we believe justice cries out for. We shall ask the Committee to support it.

4 Mar 1997 : Column 1731

Much has been made of the claim of the need to ensure that the English, Welsh and Scottish legislation proceeds step by step. I believe that over the next few weeks and months we shall hear much of the value of this House as a revising Chamber for Scottish legislation. Given the precedent of the view of the House on the Crime (Sentences) Bill, I trust that the Committee will demonstrate a robust capacity to act as a revising Chamber on Scottish legislation and support the amendments. I commend the amendments to the Committee. In so doing, I move Amendment No. 1. I have listened to what the noble and learned Lord the Lord Advocate has said in relation to Amendment No. 14. I give notice that I shall not move Amendment No. 14.

4.52 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 127; Not-Contents, 138.

Division No. 1

CONTENTS
Ackner, L.
Acton, L.
Addington, L.
Ailesbury, M.
Alderdice, L.
Aldington, L.
Archer of Sandwell, L.
Avebury, L.
Barnett, L.
Bath, M.
Beaumont of Whitley, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Broadbridge, L.
Calverley, L.
Campbell of Alloway, L.
Carlisle, E.
Carlisle of Bucklow, L.
Carmichael of Kelvingrove, L.
Carter, L.
Castle of Blackburn, B.
Charteris of Amisfield, L.
Clancarty, E.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Currie of Marylebone, L.
Dacre of Glanton, L.
Darcy (de Knayth), B.
David, B.
Desai, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elis-Thomas, L.
Ezra, L.
Falkland, V.
Farrington of Ribbleton, B.
Gainsborough, E.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Glenamara, L.
Gould of Potternewton, B.
Graham of Edmonton, L. [Teller.]
Grey, E.
Halsbury, E.
Hampton, L.
Hamwee, B.
Harris of Greenwich, L.
Haskel, L.
Hayman, B.
Hayter, L.
Healey, L.
Hilton of Eggardon, B.
Hoffmann, L.
Hooson, L.
Hope of Craighead, L.
Howell, L.
Howie of Troon, L.
Hughes, L.
Hylton-Foster, B.
Ilchester, E.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kennet, L.
Kirkhill, L.
Lawrence, L.
Lloyd-George of Dwyfor, E.
Lockwood, B.
Lovell-Davis, L.
Lowry, L.
Macaulay of Bragar, L.
McCarthy, L.
McIntosh of Haringey, L.
Mackie of Benshie, L.
McNair, L.
McNally, L.
Mar and Kellie, E. [Teller.]
Mason of Barnsley, L.
Meston, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Monson, L.
Morris of Castle Morris, L.
Nicol, B.
Ogmore, L.
Palmer, L.
Peston, L.
Ponsonby of Shulbrede, L.
Ramsay of Cartvale, B.
Rea, L.
Redesdale, L.
Richard, L.
Robson of Kiddington, B.
Rochester, L.
Rodgers of Quarry Bank, L.
Russell, E.
St. John of Bletso, L.
Sefton of Garston, L.
Sewel, L.
Shannon, E.
Shepherd, L.
Simon, V.
Smith of Gilmorehill, B.
Strabolgi, L.
Strathcona and Mount Royal, L.
Swinfen, L.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Gryfe, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thurso, V.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Waverley, V.
White, B.
Wigoder, L.
Williams of Elvel, L.
Winchilsea and Nottingham, E.

NOT-CONTENTS
Aberdare, L.
Addison, V.
Ailsa, M.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Anelay of St. Johns, B.
Astor of Hever, L.
Attlee, E.
Barber of Tewkesbury, L.
Belhaven and Stenton, L.
Beloff, L.
Birdwood, L.
Blatch, B.
Bowness, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Brougham and Vaux, L.
Bruntisfield, L.
Buckinghamshire, E.
Burnham, L.
Butterworth, L.
Byford, B.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Chalker of Wallasey, B.
Chelmsford, V.
Chesham, L. [Teller.]
Clanwilliam, E.
Clark of Kempston, L.
Clitheroe, L.
Coleridge, L.
Courtown, E.
Cox, B.
Craig of Radley, L.
Cranborne, V. [Lord Privy Seal.] Crawshaw, L.
Cumberlege, B.
Davidson, V.
Dean of Harptree, L.
Denbigh, E.
Denham, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Eccles of Moulton, B.
Ellenborough, L.
Elles, B.
Elliott of Morpeth, L.
Erroll, E.
Ferrers, E.
Flather, B.
Fraser of Kilmorack, L.
Gainford, L.
Gardner of Parkes, B.
Geddes, L.
Goschen, V.
Granard, E.
Gray of Contin, L.
Grimston of Westbury, L.
Harding of Petherton, L.
Hardinge of Penshurst, L.
Harlech, L.
Harmar-Nicholls, L.
Haslam, L.
Hemphill, L.
Henley, L.
Holderness, L.
HolmPatrick, L.
Hood, V.
Hooper, B.
Howe, E.
Huntly, M.
Kitchener, E.
Lauderdale, E.
Lindsay, E.
Lindsey and Abingdon, E.
Liverpool, Bp.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
McConnell, L.
MacFarlane of Bearsden, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.] Mackay of Drumadoon, L.
Manton, L.
Marlesford, L.
Mersey, V.
Middleton, L.
Miller of Hendon, B.
Milverton, L.
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Northesk, E.
O'Cathain, B.
Orr-Ewing, L.
Oxfuird, V.
Pender, L.
Peyton of Yeovil, L.
Pym, L.
Quinton, L.
Rankeillour, L.
Reay, L.
Rees, L.
Renton, L.
Romney, E.
Rotherwick, L.
St. Davids, V.
St. John of Fawsley, L.
Sandford, L.
Sandys, L.
Seccombe, B.
Selborne, E.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stodart of Leaston, L.
Strange, B.
Strathcarron, L.
Strathclyde, L. [Teller.]
Sudeley, L.
Teviot, L.
Thomas of Gwydir, L.
Tollemache, L.
Trefgarne, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Wade of Chorlton, L.
Whitelaw, V.
Wise, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4 Mar 1997 : Column 1733

5.1 p.m.

Clause 1 [Imprisonment for life on further conviction for certain offences]:

Lord McCluskey moved Amendment No. 2:

Page 1, line 16, leave out ("18") and insert ("21").

The noble and learned Lord said: As the Bill presently stands, a person who has attained the age of 18 and has a conviction in the High Court for any qualifying or relevant offence must be sent to prison for life. The purpose of the amendment is to remove the danger that we might have to send substantial numbers of young people aged between 18 and 21 to prison for life.

Let me give an example. Of course one can give many different examples. But at the moment--I have had such a case within the past 12 months--a person aged 14 or 15 can be indicted by the Lord Advocate in the High Court on a charge of rape. He may be acquitted on the charge of rape but convicted under Section 5(1); namely, of having intercourse with a girl under the age of 13; or he may be convicted in certain circumstances of lewd and libidinous practices. Such a person is then qualified for life imprisonment. As I mentioned earlier, if he then goes out and becomes involved in an ordinary pub brawl at the age of 18--these are extremely common in our modern cities, not least in Scotland--and in the course of a fight inflicts a facial wound on someone else, he may be convicted in the High Court of assault to severe injury which is a second qualifying offence. The judge is then obliged to send him to prison for life unless the circumstances are exceptional.

There is nothing exceptional about fighting in a pub in Glasgow or Dundee or, for that matter, in Edinburgh or Aberdeen. There is nothing exceptional about cutting someone's face. Some people call it the "Glasgow kiss" if one has a scar on one's face. There is nothing exceptional about it. Similarly, there is nothing exceptional about the kind of lewd and lib conviction of which I have spoken. It is not uncommon.

So one may say that this is a common enough situation. If the case is indicted in the High Court, then the judge is obliged to send that person to detention in a young offender institution, I think it is. One could have it the other way around. There might be an old

4 Mar 1997 : Column 1734

conviction for assault to severe injury indicted and convicted in the High Court and a second for lewd and libidinous practices. Do we really despair of the possibilities of reform and rehabilitation in such a way that we must give life imprisonment to such a person, or, indeed for that matter, to almost any of these people aged 18, 19 or 20, who appear not uncommonly in our courts?

I want to ask the Lord Advocate a question. I hope that he will answer it with his customary thoroughness and precision. Who was consulted about this proposal? I have before me the White Paper entitled Crime and Punishment, published in June 1996 (Cmnd. 3302), and it does not seek consultation on this matter. The only consultation is mentioned in paragraph 17.6.1 where the Government invite comments on some of the proposal contained in the White Paper, and in that paragraph are the offences which could trigger a life sentence. So there was no suggestion of consultation on this matter.

I should like to know who was consulted; when was the consultation; and what were the responses. I should like to know whether there was any support from any outside body, whether it be the Law Society, the Faculty of Advocates, the judiciary, SACRO, the Howard League, the prison governors, the chief officers of police, or anyone, for this proposal in relation to sending 18, 19, or 20 year-olds to prison for life in the circumstances envisaged by the Bill. I beg to move.

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