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Lord Mackay of Drumadoon: I cannot give figures for judicial review arising out of the matters that we have been discussing because, as I understand it, there will have been no such judicial reviews in England dealing with similar provisions. However, judicial review arising out of prison matters is not uncommon north or south of the Border. If the noble Lord wishes statistics for the past five years of how many judicial reviews individual prison departments have been required to deal with, I shall be happy to arrange for officials to prepare that information and to send it to him. A copy of the letter will be placed in the Library.

Lord McCluskey: I hope that the noble and learned Lord the Lord Advocate will acknowledge that, when he was critical of those who interrupted or spoke from a sedentary position, that did not include me.

The noble and learned Lord the Lord Advocate acknowledged, and rightly so, at the earliest possible opportunity that the position as regards the private finance initiative is that when the prisons are built through the PFI they are likely to be staffed by privately employed people. Therefore, the point made by the noble Lord, Lord Thomas, is a valid one.

I return to the White Paper, which envisages that the effect on the prison population in the first year will be an increase of 1,000. As the noble Lord, Lord Macaulay, reminded us earlier, the current population is about 6,000. Therefore, there will be an increase of one-sixth--1,000 in the first year.

At present, the prison population is about 11 or 12 per cent. over capacity. Accordingly, it follows that not fewer than two new 500-place prisons will be

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required. As I understand the Government's public announcements on the matter--and I can quote them if required--only one 500-place prison is contemplated to be built before the end of the century. That raises the important question as to where all the extra prisoners are to go.

The statement at paragraph 16.4 of the White Paper is that the numbers will rise to 2,200 by the end of the fifth year, so by the end of the century we shall have something in the order of 2,000 extra prisoners. My own view is that that is an underestimate, for reasons into which I need not go at this late hour of the night. Accordingly it follows that a vast number of private finance initiative prisons will have to be built. That must be so because the Government have made it abundantly clear--and again, if required, I can give chapter and verse--that there will be no increase in public expenditure in order to finance the building of extra prisons. They are to be built through the PFI. Therefore, private prisons are to be built.

That brings me back to the end of my intervention and to the point raised by the noble Lord, Lord Thomas of Gresford. It is not only a question of standards. No one doubts that privately employed people can be as honest and uncorrupt as those who are employed in the public service. It is a question of philosophy and culture. It is a question as to whether servants of the state are charged with the responsibility of looking after prisoners or the staff of B&Q or Woolworths.

Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, I should point out that I did not intend to refer to him earlier. Although he is sitting too far away from me for me to hear anything that he may say, I do not for a minute believe that he would intervene in the nature of some of the comments which, unfortunately, my left ear was being bombarded with at the time that I made the comment.

It is instructive to look at paragraph 16.4 of the White Paper because, in the second to last line, it indicates that if there were a larger reduction, say, by around one third, the increase over five years would only be 700. Of course, the net effect of the amendment moved by the noble and learned Lord and accepted by the Committee would have approximately that effect. Therefore, one has to wonder why we have spent the last 40 minutes dealing with this allegedly huge increase in the prison population.

However, against the possibility that the Bill might return to its original form, perhaps I may say again what I ought to have made clear earlier when responding to a point raised by the noble Lord, Lord Thomas. In a prison which is privately run, the proposal is that assessments on early release will be made by an individual who is a Crown servant and who is appointed for the specific purpose of dealing with that and disciplinary matters. Therefore, the constitutional objection advanced by the noble and learned Lord and supported by the noble Lord, Lord Thomas, earlier is one which will not arise in actual fact. It is important for all of us to remember that the precise details of the procedure will need to be

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set out in prison rules. I hope, therefore, at this late hour of night, that the position will be clear to all Members of the Committee.

Baroness Carnegy of Lour: I have heard no mention of the particular point which concerned me while listening to the debate on the English Bill; namely, where, if anywhere, is there the possibility of an assessment of risk to the public in the case of the longer-term prisoners who are being considered for release? As I understand it, it is done at present by the Parole Board. But where does that happen? Prison officers are trained to assess behaviour; and indeed, they already do so. If the programmes exist for prisoners to prove that they are intending to mend their ways they can do so. But where is the assessment of risk? Does that feature anywhere in the clause, or is it completely excluded? If that is the case, is there not some danger to the public that did not exist before?

My noble friend Lady Blatch has said that she will look into the matter as regards England and Wales to see whether the Parole Board might have a locus in the matter. I know that the Scottish Parole Board is a rather different animal and we have heard that it meets much less often. However, is that relevant to this clause? I should have thought that it was, but it has not been mentioned. It seems to me to be important.

Lord Mackay of Drumadoon: My noble friend has raised a concern about which I know she feels most strongly. The whole nature of the procedure set out in Clause 31 will do away with the possibility of prisoners being released at 50 per cent. of their sentence, and between that and two-thirds of their sentence, when a risk assessment is carried out by the Parole Board. On the contrary, the proposal is that they will go beyond the two-thirds to five-sixths and will be released at that stage, subject to supervision requirements which, as I said earlier, can go beyond the expiry of a determinate sentence.

It is not intended that a similar exercise should be carried out in the assessment procedure as is carried out by the Parole Board. I do not understand why the noble Earl, Lord Mar and Kellie, in speaking to his amendment thought it would be appropriate that in each and every case the Parole Board should carry out an assessment of entitlement to early release days--I refer to Clause 31(3)--and that a risk assessment is carried out every time it has to be assessed whether six or 12 days are to be awarded.

We believe that if a longer period of a sentence is spent in custody, and if there is a longer period of supervision running from the five-sixths point, that affords perfectly adequate protection to the public which is equal to, if not better than, the procedure which applies at the moment where many prisoners are being released after they have served between half or two-thirds of their sentence, and all of them are being released at two-thirds of their sentence without there being any need for a risk assessment and without the necessary supervision continuing beyond the expiry of

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a determinate sentence. Therefore the regime we are discussing will be different in that respect from that which currently applies.

Lord Hope of Craighead: I hope I may intervene to make a point which I believe is relevant to what the noble Baroness said. As I understand the English provisions, at Clause 31 of the English Bill, there was a provision that every long-term prisoner would be subject on release to a period of supervision. The noble and learned Lord used the word "supervision" in his reply to the noble Baroness which suggests that supervision will be available to everyone. As I understand the Scottish Bill, supervision after release is only to be provided if the court decides that it should be provided. The court has to make that decision at the outset when it is imposing sentence. At Second Reading I raised this point with the noble and learned Lord and asked him to consider whether the English position was to be adopted for Scotland. I notice that no such amendment has been tabled. Following the real concern expressed by the noble Baroness, I should be grateful if the noble and learned Lord could say whether it is intended that supervision after release should be available for every prisoner serving a long-term sentence, or whether it is to be a matter for decision by sheriffs and judges.

Lord Sewel: Is it not the case that this matter is dealt with in Amendment No. 147?

Lord McCluskey: The answer to the noble Baroness is fairly clear. The provision about which we are now talking is concerned with release for good behaviour in prison; it is not concerned with supervision after release at all. That is abundantly plain. What I think ought to concern the noble Baroness is the point that was brought out in the Crime (Sentences) Bill and which is within my experience as a trial judge and counsel who has taken part in a number of prison riot cases; namely, the persons who behave best in prison are sex offenders. The ordinary ruffians who commit assaults, breaches of the peace and mayhem tend to behave rather badly in prison. However, sex offenders behave well in prison. Therefore the result of these provisions is that one earns one's release by the way one behaves in prison, and therefore the ones who get out are the sex offenders and the ones who stay in are the violent offenders. That is a matter of greater concern than the mistaken confusion of this part of the Bill with another part of the Bill which lies behind the intervention of the noble Baroness.

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