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Viscount Bledisloe: My Lords, the noble and learned Lord will recollect that when he gave evidence to the Constitution Committee last week he told us that he had no doubt that agreement would be reached between him and the judiciary on the important matter of safeguards. Does he accept that no such agreement has been reached and that, according to the Lord Chief Justice’s statement to the judiciary, important issues of principle remain to be decided? What will happen if agreement is not reached on those topics between those two parties on a level playing field? For example, will the noble and

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learned Lord impose his unilateral solution on the judges? How will the matter otherwise be dealt with?

Lord Falconer of Thoroton: My Lords, because the noble Lord was there and asking me the relevant questions, he will recall that I said that I thought that agreement would be reached. However, I made it clear that I did not think that agreement would necessarily be reached by 9 May. He asked what would happen if agreement could not be reached. I believe that the right thing to do is to focus on the work going on now. If agreement is not reached, we will see what the extent of disagreement is and how we can evolve circumstances to deal with that.

Lord Soley: My Lords, does the noble and learned Lord the Lord Chancellor accept that one of the ways in which this reform will be judged is how much people feel that the functioning of the courts has improved? I have argued for the reform for many years, so I am pleased about it. As someone who worked for years in courts as a probation officer, I can say that the courts often worked well for those of us who worked in them and for those charged with offences, but that they worked rather badly for the general public and, in particular, for victims of crime. Can we judge the performance on how that improves?

Lord Falconer of Thoroton: My Lords, that will be one of the measures, because a change such as this is not for the people in Whitehall or Westminster, but for the public in their experience of the justice system, particularly in the working of the courts. Yes, I agree entirely that that will be one of the factors by which to judge the success of this change.

Lord Elystan-Morgan: My Lords, I congratulate the noble and learned Lord on the part of his Statement that dealt with the study and survey to be conducted by the Sentencing Guidelines Council, but does he accept that nothing that comes from that study, nor the most spectacular increase in prison places, will solve the problem of prison overcrowding in the short term? Apparently, we are now within some 500 places of crashing through the ceiling of 81,000. Nothing that is studied or recommended by the Sentencing Guidelines Council within its authority can change some of the fundamental problems, one of which is indeterminate sentences. The principle behind such sentences is very proper, but it may be fraught with considerable problems in the near future. Academics estimate that within five years no fewer than 25,000 people will be subject to such sentences. Would the noble and learned Lord consider extending the remit of the study to include the possibility of amending the 2003 Act to give judges much greater discretion than they now have under the trigger mechanism for indeterminate sentences?

Lord Falconer of Thoroton: My Lords, the noble Lord is right to identify the importance of the indeterminate sentence. It is, in principle, correct that people who a court determines are dangerous and

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who have committed one or more criminal offences should be released only when an independent board has determined that they are no longer dangerous. He is also right to say that the number of people on indeterminate sentences is increasing considerably. I do not necessarily accept the figure of 25,000, but the number is going up. It is not within the statutory remit of the Sentencing Guidelines Council to look at the issue of indeterminate sentences; my focus in referring matters to it is not the indeterminate sentence but the determinate sentence, as I made clear. Although I note the suggestion made by the noble Lord, I am not minded to extend the reference—not just because it cannot be done as a statutory matter, but because we must be clear that dangerous offenders will be kept in prison until, according to an independent assessment, they cease to be dangerous.

Lord Campbell of Alloway: My Lords, can the noble and learned Lord confirm that the traditional constitutional role of the Attorney-General shall be retained without any hint of government interference?

Lord Falconer of Thoroton: My Lords, the traditional constitutional role of the Attorney-General remains completely unaffected by the creation of the Ministry of Justice and, of course, there will be no government interference in that role.

Lord Ramsbotham: My Lords, while we would all welcome what the noble and learned Lord said he would like to happen in our prisons, one of the problems is that no one actually knows how much this will cost. We know how much money is given to imprisonment and we know how much things cost in themselves, but no one has added it all up. Until we do that, we will not know by how much it is impossible for people to deliver. We have heard an awful lot of rhetoric about what people would like to have done, but we do not know whether it is possible to do it because the resources are not there. Will the noble Lord, Lord Carter of Coles, have something like a regulatory impact assessment requirement added to his remit, so that he can look at the cost of what is being suggested and give us some idea of what that will mean and whether it will be possible to deliver?

Lord Falconer of Thoroton: My Lords, I completely agree about the difficulties that the noble Lord, Lord Ramsbotham, has identified on costing. I should make it clear that there will be no additional resources during the coming spending review, but I anticipate that, although it would not be described as a regulatory impact assessment, the noble Lord, Lord Carter of Coles, needs to carry out precisely that sort of analysis in order to inform the coming debate.

Baroness Thomas of Walliswood: My Lords, the noble and learned Lord the Lord Chancellor paid tribute to the Probation Service for its relative success in reducing reoffending among the people entrusted to its care. I know, because I was a member of a probation board for many years, that that service has been under almost constant churn and change for several years. As the current change begins to operate,

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can he ensure that the quality of contact between all those involved in dealing with people on probation—not just the probation officers but those who manage, for example, the work programmes, who are absolutely essential to the success of probation—is maintained when the new system of sub-letting, contracting out and so on comes into force?

Lord Falconer of Thoroton: My Lords, I agree that those relationships are absolutely vital, and I completely endorse what the noble Baroness has said about the quality of the people engaged. Far from seeking to undermine that quality, the further changes envisaged by the Offender Management Bill are designed to increase it. However, I completely endorse what the noble Baroness said about the importance of ensuring quality in the Probation Service.

Viscount Bledisloe: My Lords, would the noble and learned Lord now like to try to give me a coherent answer to my question about what will happen if he and the judges are unable to reach a bilateral agreement?

Lord Falconer of Thoroton: My Lords, I believe that I have given a coherent answer.

Lord Marlesford: My Lords, I have listened very carefully to everything that has been said and I must ask the noble and learned Lord one or two questions. First, does he recognise that changes in the machinery of government are always disruptive and inevitably expensive and that the cost of getting them wrong is very high compared with the time needed to try to get them right? Secondly, does he recognise that we could not have had a better example of that than the astonishing attempt to abolish by press notice the office of Lord Chancellor and the immense cost of putting right that extraordinary way of proceeding? That must cause many of us real doubt as to whether this Government are taking constitutional reform at the sort of pace and with the sort of seriousness and proper thought that are due to this country.

Lord Falconer of Thoroton: My Lords, I completely agree that machinery of government changes can be extremely disruptive. Indeed, I completely agree that there will inevitably be disruptive consequences from such change. Any responsible Government must assess whether the ensuing disruption and extra cost are outweighed by the benefits obtained. We have thought very carefully about that and are in no doubt that the benefits to be obtained greatly outweigh the disruption and the costs.

Victims of Overseas Terrorism Bill [HL]

4.22 pm

Lord Brennan: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Moved accordingly, and, on Question, Motion agreed to.

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Administration and Works Committee

4.23 pm

The Chairman of Committees (Lord Brabazon of Tara) rose to move, That the first report from the Select Committee (HL Paper 74) be agreed to.

The noble Lord said: My Lords, the House agreed a general ban on smoking within the House’s premises, with certain exceptions, on 21 December 2004. The House has since passed the Health Act 2006, which will ban smoking in enclosed or substantially enclosed premises open to the public and in workplaces from 1 July. Although the legislation does not apply formally to the House, it would be consistent with recent practice for the House to apply the Act by analogy, as is the case with health and safety at work legislation. The House of Commons shares this approach.

The Administration and Works Committee therefore decided to revisit the House’s smoking policy in the light of the new legislation. The committee came to the view that smoking should be prohibited in all parts of the Lords estate, except in certain outside areas. The committee therefore recommends that specified smoking areas should be provided in Black Rod’s Garden, State Officer’s Court and Peers’ Inner Court and in an area at the end of the Lords Terrace abutting the Commons Terrace.

It is proposed that this new policy on smoking should come into operation on 1 July, when the relevant provisions of the Health Act 2006 are commenced by the Secretary of State.

The Administration and Works Committee, in this report, has put forward a policy which balances the principle of the legislation with the needs of those who wish to continue to be permitted to smoke on the estate. I beg to move.

Moved, That the first report from the Select Committee (HL Paper 74) be agreed to.—(The Chairman of Committees.)

Lord Taylor of Blackburn: My Lords, I declare my interest as a pipe smoker. I regret that these regulations will come into effect on the parliamentary estate. I realise that I am going against the tide and that most Members in both Houses agree that there should be a ban on smoking on the parliamentary estate. Therefore, I can do nothing except raise my objections to the freedom, which I have enjoyed since I became a Member of this House 29 years ago, being taken away from me.

However, I plead for one thing: for many years, we smokers fought for offices of our own where we could agree among ourselves to smoke and I make a plea to continue to be able to smoke in our offices. Those of us who are working Peers and are regularly here during the course of the year need relaxation and some of us feel that we do not want to give up smoking. Therefore, I make a plea that, at some time, the committee should reconsider the recommendation and allow us to smoke in our own offices.

Lady Saltoun of Abernethy: My Lords, I make no apology for swimming against the tide. I was once a heavy smoker, but I have not smoked for more than

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15 years. At the same time, I absolutely deplore what I consider to be the cruel treatment of smokers these days. I do not see why smokers should not be allowed, as the noble Lord has just said, to smoke in their offices and why smoking rooms should not be available.

Lord Monson: My Lords, this is a sad day for those who value the freedoms that we used to take for granted in England. I do not believe that the Administration and Works Committee, of which I once had the honour to be a member, had much choice in the matter. Clearly, there has to be equality of sacrifice—equality of misery, if you like—and legislators must bear the full consequences of their legislation, just like the rest of the population.

The Government could have protected the sensitivities and well-being of non-smokers by imposing major, but less punitive, restrictions, as in many continental European countries. Instead, most unfortunately, they chose the most draconian option. In parenthesis, what harm does the Truro Room, where smokers of all parties and none gather for a quiet cigarette, do to anyone else in the House?

On a more practical point, can the Chairman of Committees say what protection there will be for smokers in the designated smoking areas when it rains, snows or hails? Will there be any cover for them? Secondly, can he assure us that an adequate supply of efficient ashtrays will be provided? “Efficient” is a most important word here. Nothing justifiably irritates non-smokers more, in both senses of the word, and also many smokers, than smouldering, tar-filled cigarette butts. By providing ashtrays that extinguish cigarettes immediately—I shall gladly consult the noble Lord if he wishes to know more about them—that nuisance can be totally avoided.

Lord Faulkner of Worcester: My Lords, this is what one might call the last gasp of the smoking lobby in your Lordships' House. What the Chairman of Committees has described to us as being a new measure to bring us in line with the national legislation strikes me as entirely reasonable. Having passed the legislation with overwhelming majorities in this House and in the other place, it would be intolerable if we were then to exempt ourselves from the provisions of the legislation that applies to the rest of the country.

England is going smoke-free in enclosed areas and workplaces from 1 July; Scotland and Wales have already gone and Northern Ireland has now gone. For us to stand against that tide and imagine that for some reason we are entitled to continue to smoke, to the annoyance of others and, according to the Surgeon General of the United States and the Chief Medical Officer, to the impairment of other people's health through the inhalation of second-hand smoke, strikes me as absurd. It is not true to say that by smoking in one's own office or in the Truro Room one is not affecting anyone else. Who do my noble friend and the other speakers who have contributed to the debate believe is responsible for keeping that room clean and for keeping those offices serviced? By

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continuing to have smoking inside the building, we are exposing our staff to the dangers of second-hand smoke, and it would be quite wrong for us to do anything other than to approve this report.

Lord Hughes of Woodside: My Lords, I declare an interest as a former smoker. I shall say two things: first, I agree entirely with the noble Lord who said that there should be some protection from the wind and rain for people outside the main building. It is, of course, right that we should not exempt ourselves from the law. The curious thing about the argument of my noble friend Lord Faulkner of Worcester is that smoking is not an illegal activity. People who smoke contribute a considerable amount of tax to the nation’s wealth, and I look forward to the day when the new Prime Minister bans smoking entirely and ceases the production of tobacco and cigarettes. Then we will be in the society where the puritans would have us go. We must protect our staff and those who clean rooms and so on, but those who wish to continue smoking should have the right to some sort of protection to smoke in an environment where they are doing no one any harm except, possibly, themselves.

Lord Stoddart of Swindon: My Lords, I had not intended to speak until the noble Lord, Lord Faulkner, got to his feet and described people who are expressing concerns as “the smoking lobby”. It is not a smoking lobby; the people who have spoken and I are concerned about individual freedom. It is not a question of a lobby; it is a question of providing alternatives to what the Government and Parliament have decided, alternatives that were available. That was the issue when we discussed the matter in Grand Committee. It was possible to provide for separation with decent ventilation. If lobbying for the retention of individual freedom is a smoking lobby, then I fear that I have to disagree completely and utterly with the noble Lord, Lord Faulkner. I hope he now understands that we are in favour of individual freedom and of protecting minorities as well as the majority.

The Chairman of Committees: My Lords, I am grateful to all noble Lords who have taken part in this short debate. I shall make the point that the report is very brief and simple. It makes no points on the merits or otherwise of smoking; all it does is to bring this House into line with what will be the law of the land outside it on 1 July. As more than one noble Lord said, having made the law—whether one agrees with it or not—we really have no choice. If we make the law for the great public outside, it is hardly for us to make exceptions for ourselves in this House. There lies the answer to the noble Lord, Lord Taylor of Blackburn, about offices. Smoking in offices is specifically banned by the legislation, and, therefore, we cannot do anything else. The points made by noble Lords about the merits of the legislation should have been made, and probably were made, during the passage of the legislation.

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As the report says, it is hoped that we will provide smoking areas outside in the three locations that I mentioned. It is hoped that the shelters will have roofs and ashtrays. I shall make inquiries of the noble Lord, Lord Monson, about the specific type of ashtray he referred to because it sounded very good to me. There is a limit to what we can do outside because the legislation specifies the sort of shelters that we can put up. As far as I am aware, they can have either a roof and no walls or walls and no roof.

On Question, Motion agreed to.

Serious Crime Bill [HL]

4.35 pm

Read a third time.

Clause 46 [Supplemental provisions]:

The Minister of State, Home Office (Baroness Scotland of Asthal) moved Amendment No. 1:

The noble Baroness said: My Lords, these amendments have been retabled from the previous stage, when they were not moved. I turn briefly to Part 2 of the Bill, which deals with criminal law. I am pleased that we are all in agreement on this part of the Bill, with the exception of one minor point that is the subject of these amendments. Government Amendments Nos. 1 and 4 would allow Schedule 3 to be amended by affirmative order. As noble Lords will recall, Schedule 3 contains a list of offences that are statutory forms of incitement or other inchoate offences. They are offences that can only be encouraged or assisted with intent.

As I indicated, I originally tabled these amendments on Report. Following our discussions at that stage, and in particular following the report of the Delegated Powers and Regulatory Reform Committee on the morning of our discussions, I agreed not to move the amendments and to reflect on them. I have considered the issue carefully and have retabled the amendments as proposed on Report. The amendments are necessary and they are appropriate.

The ability for the order-making power to add an offence to the schedule is not contentious, so I will not repeat my arguments about why it is necessary. However, the ability to remove an offence from the schedule concerned a number of noble Lords and the Delegated Powers and Regulatory Reform Committee. We have taken those concerns seriously, and we have considered whether it is truly necessary to have a power to remove an offence from this schedule. We think it conceivable that there might in the future be concerns about restricting liability for offences currently in that schedule; we also think it conceivable that we might all agree that a certain offence should be removed from the schedule. Where that is the case, we think it sensible to provide a power to amend the schedule by order.

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