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Lord Carlisle of Bucklow: My Lords, am I right in thinking that the 1991 Act implemented the proposals of the committee, which I had the honour of chairing, for reforming the parole system and provided for the release of those serving sentences of four years or less at the 50 per cent stage?

Lord Williams of Mostyn: My Lords, the noble Lord is right and reinforces my point. If in those past liberal days--I am deliberately not looking at the noble Earl, Lord Russell--it was right to release at the 50 per cent stage, I think that the noble Lord has honourably, if I may say so, identified and crystallised my point even more. I would suggest--I do not think that there is a tolerable argument to be levied against my suggestion--that the increase from a half, on the noble Lord's recommended scheme, to three-quarters by secondary legislation, which is possible under Section 49 of the Criminal Justice Act 1991--that type of potential interference with the liberty of theindividual--is much more fundamental than what is proposed here. We propose that if the pilots produce evidence to imply that these periods are wrong,

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secondary legislation, subject--I say this firmly--to the affirmative procedure, is much less objectionable if one wants to attack the principle, and it is the principled approach which the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Carlisle, have put to me for my comment.

Earl Russell: My Lords, can the Minister explain why it is a good argument to say that because Homer nodded in 1991, he should nod again in 2000?

Lord Williams of Mostyn: My Lords, it is not a good argument, but when someone as distinguished as the noble and learned Lord, Lord Mayhew, asks me a question, I think it is right that I should give him the answer. If he asks me about what happened in the past and asks me to help him, I think I have a duty to the House, as well as it being a courtesy to him, to do it, however inconvenient the answer may be to certain factions. That is the unhappy truth of the matter. I am only the bearer of the message. I was not the constructor of the message in 1991, which I think was some six years before the last election.

There are other points to be made, all of which will be equally disagreeable. Under the European Communities Act 1972, the Secretary of State can make regulations to bring into effect treaty obligations, including any provision as might be made by an Act of Parliament provided that this does not include creation of any criminal offence punishable by imprisonment of more than two years. That is a reasonably significant interference with the liberty of the individual. Therefore, what is proposed is not without precedent. Even if it were, the principled argument ought to be met.

I have dealt with the argument on precedent, I have dealt with the argument about significant interference with individual liberty and I have given the reason for flexibility. We ought to pilot these new remedies if the evidence about what works and does not work is available. I submit that we have done decently by the recommendation of the committee. We have certainly not ignored it. We have not accepted it in full but we have adopted something which I suppose it would have described as the "least worst".

These are all respectable arguments. I have not been instructed on them. They are perfectly tenable arguments to put in your Lordships' House, and I put them.

Lord Mayhew of Twysden: My Lords, before the noble and learned Lord sits down, I am most grateful to him for the care with which he has addressed the questions which I have put to him. The 1991 Act, which he cited, certainly eluded the Home Office representatives when they gave evidence to the committee. The question of precedent is interesting and important. Members in both Houses always look at precedent.

Does the noble and learned Lord agree that there is a distinction to be made between the provision of the 1991 Act, which varies a component of the sentence--on the one hand, the proportion to be spent in custody

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and, on the other hand, the proportion to be spent on parole, but still serving the sentence--and what we are dealing with here? We are considering sentences which are whole and complete in themselves. I hope that the noble and learned Lord will appreciate the distinction that it is one thing to vary a component within an overall sentence, but quite another to take powers to increase the sentence itself. Does the noble and learned Lord agree that that is a legitimate distinction which can be drawn?

10 p.m.

Lord Williams of Mostyn: My Lords, precedent can be an unhappy boomerang. If no precedent has been set, I shall be struck on the back of the head. If there are precedents, those who have inquired about them are in danger of being struck unless they duck.

I agree that we cannot be bound simply by the existence or otherwise of precedents. However, I shall focus on the question put to me by the noble and learned Lord by returning to the correct identification made by the noble Lord, Lord Carlisle of Bucklow. We are discussing, on the left hand, exclusion orders, drug abstinence orders and the exclusion and curfew requirements of community orders. On the right hand, we have the prospect that someone serving a sentence of imprisonment may have, by secondary legislation, the component to be suffered in prison--which, in direct response to the question put to me by the noble and learned Lord, Lord Mayhew, is much more important than the notional sentence--rising from one-half to, say, three-quarters. If one wishes to balance those, I am happy to do so because I reassert--I believe that I am fundamentally right here--that in terms of interference with individual liberty, the left hand interference is infinitely less, both in its effect and in its quality, than the right hand.

We all know that the apparent sentence imposed by the court is not the actual length of time that is to be served. What matters to the individual, his friends and family, relations and acquaintances, is not what has apparently been imposed by the judge, but the real time. Under Section 49, real time served in prison can be increased by secondary legislation. That does not reside in the same category of levels of interference with individual liberty as the power specified here.

Lord Carlisle of Bucklow: My Lords, perhaps I may speak once more before the noble and learned Lord the Attorney-General sits down. Of course I had nothing to do with the framing of the 1991 Act, nor did I take part in the discussions on it; but I accept that I was responsible for the review of parole which led to it. However, there may be a difference in what he is saying and I should like to look again at the Act. The fact is that the three-quarter point was the point at which remission started for all prisoners. The proposal put forward by the Parole Review Committee was that those serving under four years should be allowed out once they had served 50 per cent of their sentence.

However, without looking again at the provision I do not think that Section 49 in any way gave any power to a Secretary of State to increase the maximum

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sentence available to a judge to pass without referring back to Parliament. Surely the issue here is not the effect on the individual, but whether in principle it is right that the executive--I accept that there are arguments on both sides--should have the power, through order-making procedures rather than in primary legislation, to increase the order that the court can make. As I understand it, that did not apply in the noble and learned Lord's explanation of the 1991 Act. I believe that he was saying that the executive took to themselves the power to vary the period within the sentence which was passed.

Lord Williams of Mostyn: My Lords, with great respect, that is entirely my point. The principle derives only from the effect made on the individual. That has been the reasoning behind the careful arguments which have been put. To paraphrase the principle rather crudely and not entirely satisfactorily: it is Parliament, through primary legislation, which must act as the watchdog over individual liberties. If that is the principal thrust, which I see it to be, then if the Secretary of State can say that the 50 per cent introduced by the Parole Review Committee can be increased by secondary legislation to, let us say, two-thirds or three-quarters, effectively the real time to be served by the individual will be determined by secondary legislation introduced by the Secretary of State. It does not seem to me that there is any distinction in principle there at all.

Baroness Blatch: My Lords, the noble and learned Lord has been meticulous in picking up the arguments and the tests set for him by my noble and learned friend Lord Mayhew and my noble friend Lord Carlisle.

My noble and learned friend and my noble friend have valiantly fought back and argued against the example cited by the noble and learned Lord the Attorney-General. However, another point was picked up by the Select Committee on Delegated Powers and Deregulation. If I may use non-lawyers' language and be more colloquial, the Select Committee said that two wrongs do not make a right. The Select Committee made reference to the fact that it was not in being at the time of the previous legislation. Implicit in what it said was that, had it been, it might have queried even the power to which my noble and learned friend and my noble friend referred.

We should judge the recommendation in the light of the here and now; in the light of the way in which the Select Committee does its work. The Select Committee was set up because there was a growing concern about the numbers of powers being taken by various Secretaries of State, the width of those powers and the fact that they gave rise to a great deal of legal activity through secondary legislation. I know that this has been a particularly vexed issue for the noble Earl, Lord Russell, who has constantly cited the convention of the House that one does not amend secondary legislation--one either rejects it or accepts it--which always makes it particularly difficult.

The principle established by the Delegated Powers and Deregulation Select Committee is that before the House considers an issue the Select Committee looks

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carefully at the powers to be taken in legislation and proffers its advice. Up until this moment that advice has always been taken. The Select Committee in this instance has made an unequivocal recommendation that these powers should be omitted from the Bill.

The noble and learned Lord the Attorney-General read out the whole recommendation. I did the same. I made it absolutely clear that the caveat--which was confirmed in the letter sent to me after Second Reading by the chairman of the Select Committee--applied only if the House, as a House, rejected the recommendation of the Select Committee.

I believe that we should accept the recommendation of the Select Committee. I do not believe that two wrongs make a right. I do not believe that we should go back simply because it was used in 1991, albeit a real distinction has been made in that we are talking about whole sentences and not component parts of sentences. The noble and learned Lord is right: if one is talking about a component part of a sentence it can, potentially, impact on the liberty of an individual.

The Select Committee has proffered good advice. It should be taken. We should continue consistently to accept the advice of the Delegated Powers and Deregulation Select Committee unless we have very good reasons for not doing so. When there are more learned noble Lords in the House than the few qualified people present at the moment, the House should take a view on these matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 [Drug abstinence orders]:

[Amendment No. 65 not moved.]

Clause 47 [Community sentences: curfew requirements]:

[Amendment No. 66 not moved.]

Clause 48 [Community sentences: exclusion requirements]:

[Amendment No. 67 not moved.]

Clause 50 [Breach of community orders: warning and punishment]:

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