I beg to move Amendment No. 243, in page 2, line 16, leave out from 'that' to 'may' in line 20 and insert 'it would be in the interest of justice to impose a sentence, other than the sentence required by subsection (2) above, it'.

With this, it will be convenient to discuss also the following amendments: No. 148, in page 2, line 17, after 'circumstances', insert 'whether relating to the offence or to the offender'. No. 244, in Clause 2, page 4, line 31, leave out from 'that' to 'may' in line 35, and insert 'it would be in the interest of justice to impose a sentence, other than the sentence required by subsection (2) above, it'. No. 149, in page 4, line 31, after 'circumstances', insert 'whether relating to the offence or to the offender'. No. 150, in clause 3, page 5, line 30, after 'circumstances', insert 'whether relating to the offence or to the offender'.

The Amendment would ensure that the element of discretion afforded to the judiciary in the two clauses relating to automatic and minimum sentences was concerned with the interests of justice rather than trying to find or establish exceptional circumstances.

I want something more akin to a presumptive than an automatic life sentence, because it is our contention that the provisions in the Bill as it stands amount to an unreasonable fettering of the judiciary. Our constitution, unwritten though it is, proceeds upon a separation of powers among the judiciary, the Executive and the legislature. It has always been clear that Parliament must legislate for sentences, but the Bill seems to be moving towards putting the judiciary in a sentencing straitjacket.

It is significant that in more than one of our debates today the Minister has objected to or opposed certain moves on grounds of the need to provide the judiciary with discretion. There have been newspaper reports recently that the Secretary of State is planning to introduce training for judges, but training would not be needed if the discretionary element in sentencing were removed.

In many cases in which an automatic life sentence would follow a second offence, the courts already have power to pass life sentences if they believe that the circumstances, the seriousness of the crime or the dangerous nature of the person who committed it make that appropriate. If a court has regard to all the circumstances of a case and yet believes, despite having the opportunity to pass a life sentence, that a fixed sentence is more appropriate, it would surely amount to injustice if a more harsh sentence—a life sentence—had to be passed.

From an earlier response of the Minister's, we know that there have been relatively few appeals by the Lord Advocate against a sentence that he considered too lenient. The figures in the white paper show that, of 1,407 people convicted between 1990 and 1994 of an offence within the categories designated in the Bill, 75 per cent. received custodial sentences. The other side of that coin is that, despite the nature of the crimes, 25 per cent. of cases were regarded by the courts, when they had been made aware of the full circumstances of the offence and of the offender, as not meriting a custodial sentence. If a life sentence may have to be imposed even in circumstances in which the courts do not believe that any custodial sentence is appropriate, that can lead only to injustice.

In many of the 75 per cent. of cases to which I referred, there would be lengthy fixed sentences and the period in prison would be followed by long periods of supervision under licence, during which the offender could be recalled. I understand the Secretary of State's argument to be that prisoners would be released only on licence if a life sentence had been imposed, and that they could be recalled at any time. If reoffending is predictable and prisoners are under supervision, why is the power of recall not used even under the present system? Even with an automatic life sentence, it is quite foreseeable that the parole board would nevertheless opt for release in circumstances in which it did not predict any reoffending, and we should be in much the same position as at present.

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There is a strong argument that what the Government are proposing in this exercise in machismo could weaken public protection. It could lead to an increased risk of wrongful acquittals. I will give an example of circumstances in which an acquittal might take place if an automatic life sentence loomed.

Many offences involving violence and serious violence occur within the family. That is deeply to be regretted, and it does not excuse such crimes, but the fact is that witnesses could be deterred from giving evidence if one member of the family would, on conviction, receive an automatic life sentence. Many a jury might be deterred from convicting if it believed that, in all the circumstances of the case, an automatic life sentence would be disproportionate. In many such cases, counsel representing the accused could draw to the jury's attention the consequences of a guilty verdict, and what might appear to be a Shadow of a reasonable doubt might well become a substantial reasonable doubt.

Many more cases are likely to go to trial as a result of the Bill, increasing the number of victims of crime who have to go through the trauma of giving evidence. There could also be more examples of plea bargaining. One of the crimes that will lead to an automatic life sentence on a second offence is an assault with an intention to rape or to ravish the victim. It is not unforeseeable that, to secure a conviction, that offence might be reduced through plea bargaining to a plea of guilty of indecent assault, with all the offence that that might cause to the victim.

The qualifying offences are full of anomalies. One is Robbery, where at some time during the commission of the offence, the offender had in his possession a firearm or an imitation firearm. I do not in any way seek to diminish the seriousness of such an offence, but someone who had a toy gun in the boot of a getaway car used in the commission of an offence could, if that were established, be guilty of an offence that would lead to an automatic life sentence. If, however, a combat knife had been brandished in the face the person being robbed, that would not lead to such a sentence. Such anomalies are liable to bring the law into disrepute.

The amendments also deal with drugs offences and the mandatory seven-year sentence. I have no truck with those who peddle drugs; they are some of the most evil perpetrators of crime. The right hon. Member for Fareham (Sir P. Lloyd), in discussing similar provisions for England and Wales, said: For example, young drug addicts who sell small quantities of drugs to other addicts will get the same sentence as professional drug pushers."—[Official Report, 19 June 1996; Vol. 279, c. 908.] That is the sort of consequence that can arise and that will be regarded as unjust, not only by those who have to serve the sentences but by their families. It will bring the law into disrepute. Many small-time drug addicts will be less likely to co-operate with the police in assembling cases against major drug pushers if the consequence of co-operation is an automatic sentence of seven years or more.

The Minister may argue that the Government make some provision for flexibility by referring to "exceptional circumstances". The Lord Chief Justice south of the border has said that "exceptional" is a word that can be given a very narrow definition and suggested that psychiatric problems or threats of suicide may not be "exceptional circumstances". I doubt whether provocation would be regarded as an exceptional circumstance, but it has been relevant in some high-profile cases of murder and in England of manslaughter or in Scotland of culpable homicide where seriously abused wives have killed their partners. The fact that there have been so many such cases means that such circumstances are not exceptional, so courts will not be able to exercise discretion and ensure the justice that the public demand unless the discretion implicit in my amendment is accepted.

The Government introduced unit fines, but had to abandon them when the courts were obliged to levy fines that were disproportionate to the offences committed. If the Bill becomes law, I predict that within months there will be a public outcry about an automatic life sentence which will be regarded as manifestly unjust.

I conclude with the words of the 1990 White Paper, "Crime, Justice and Protecting the Public", which stated: The Government rejects a rigid statutory framework, on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence justly in exceptional cases. In times past, the Government recognised the strength of the arguments against what they propose in the Bill. One can only conclude that with a General Election looming they would rather be seen as tough on crime than as having a proper regard for the best interests of a civilised and just criminal justice system.

I commend the hon. Member for Orkney and Shetland (Mr. Wallace) for his eloquence and agree with much of what he said. We raised these issues in detail with the Minister in Committee.

On "exceptional circumstances", I refer the Minister to the debate in Committee on the Crime (Sentences) Bill, when the hon. and learned Member for Burton (Sir I. Lawrence) said: The words 'exceptional circumstances' will present an immediate and fundamental problem for the courts. We cannot foresee the problems that many phrases will cause. Had we foreseen problems with some phrases, we would have acted at the appropriate time. However, we can clearly foresee a problem with the phrase 'exceptional circumstances'."—[Official Report, Standing Committee A, 12 November 1996; c. 22.] We pressed the Minister on that point in Committee, but he said that he did not wish to limit judicial discretion. He made that comment immediately after limiting the judicial discretion with mandatory sentences. The problem of "exceptional circumstances" remains to be cleared up. It is not enough for the Government to say that it is up to the judge to decide what are exceptional circumstances if they are not laid out in the Bill. The Government say that it is a matter for judicial discretion, but if that is so, why was judicial discretion taken away in the first instance?

In Committee the Minister said that he did not want to define "exceptional circumstances" because it would limit judges' discretion. However, this aroused concern even among Conservative Members, such as the hon. Member for Eastwood (Mr. Stewart), who asked whether "exceptional circumstances" applied to the prior qualifying offence or only to the offence under consideration.

The hon. Member for Perth and Kinross (Ms Cunningham) suggested that judges would be loth to define "exceptional circumstances" because they would be open to the right of appeal and their decisions might be challenged on appeal. There was much concern about that problem, not least from the Law Society of Scotland. It is incumbent on the Minister to explain the Government's thinking on "exceptional circumstances". For the life of me, I cannot understand why the Government are reluctant to elaborate.

The Pepper v. Hart case in 1992 meant that courts and others outside Parliament could refer to our debates to understand the intention of legislation. It is important to make the intention clear. I ask the Minister to address that and to ensure that he gives a satisfactory response; otherwise, judges will keep to the status quo and make no comment. The Government's aim in the Bill will thus not be realised, and I trust that he does not want that.

In answer to the hon. Member for Orkney and Shetland (Mr. Wallace), I believe that the number of appeals made by Law Officers against too lenient sentences is in the region of 15.

Amendments Nos. 243 and 244 concern the circumstances in which courts may exercise their discretion not to impose an automatic life sentence or a minimum of seven years imprisonment for a third or subsequent conviction for class A drug trafficking offences. The amendments would seriously undermine the purpose of the Bill, which is to protect the public from violent or serious sex offenders and recidivist drug dealers. They would replace the "exceptional circumstances" test in relation to the court's discretion not to impose an automatic life or minimum mandatory sentence with a different and much wider test. The exceptional circumstances test would allow the courts to impose a different sentence only where unusual circumstances exist.

The purpose of clauses 1 and 2 is that life sentences or custodial sentences of seven years or more should be imposed as a matter of course in the generality of the cases; otherwise, they will not have the desired protective and deterrent effect. The tests proposed in the amendments go far beyond that by, for example, allowing the courts to impose a different sentence if they think that it would be anomalous to impose a minimum sentence. They might allow a judge not to impose a minimum sentence in a case in which he would otherwise have been minded to impose a different penalty. That would make nonsense of clauses 1 and 2.

Clause 1 deals with criminals who have already been convicted of serious offences such as rape, or of robbery with a firearm, but go on to commit a further such offence. Such criminals have shown by the nature of their offences and by their inability to desist that they are a threat to public safety. Only automatic life sentences can deal satisfactorily with the risks that they pose to society.

Clause 2 deals with drug dealers convicted of a third or further class A drug trafficking offence. We believe that not to impose a severe determinate sentence on such persons would not provide the protection that the wider community deserves from such people.

If I follow the Minister's argument, will he say whether he thinks that I am offering a fair summation of it? Judges have immense experience and are paid substantial salaries to exercise their judicial discretion. As a result of the Government's proposals, they may have to impose sentences that are harsher than they believe to be necessary in the circumstances. Does the Minister believe that that is justice?

I believe that the public deserve the additional protections that automatic life sentences would give in the case of repeat offenders. That would be particularly relevant in cases such as that of Maguire, who would have been caught by an automatic life sentence the second time he offended.

I should like to add to the question just posed by the hon. Member for Orkney and Shetland about judicial discretion. The Minister has cited the exercise of such discretion in exceptional circumstances, but has not allowed for it in the case of mandatory sentences. Is he saying that he does not trust judges and that there have been problems in the past as a result of their decisions?

I am not saying that. We believe that the clauses should necessarily provide a discretion for a different sentences to be imposed when there are exceptional circumstances. I am content to leave that discretion to the courts. I have no doubt that the hon. Member for Orkney and Shetland could argue eloquently in court if he believed that exceptional circumstances existed. In my view, the right balance has been struck and to go further would undermine the effectiveness of clauses 1 and 2.

By singling out particular circumstances, we do not wish to fetter the courts' discretion to decide what are exceptional circumstances and how they should be weighed. I therefore ask the hon. Member for Orkney and Shetland to seek leave to withdraw his Amendment.

The Minister's reply comes as no real surprise to me, as we are all aware that the Government are going through a window-dressing exercise in trying to appear tough on crime. I do not believe that the proposals will have the effect in practice that the Minister pleads for them.

I have already said that, if a prisoner who has been released on licence under supervision ought to be recalled, then he should be recalled. Equally, if there is an omission to recall him on the basis that he is likely to reoffend, it is equally likely that he will be released by the Parole Board with the consent of the Secretary of State and then reoffend. I do not believe that the Government's proposals would provide the type of safety for the public that the Minister says that they will deliver.

The Minister has completely overlooked the fact that discretion is already exercised by judges to impose a life sentence where they think that there is a strong likelihood that a person will reoffend due to his dangerous proclivities. The Minister has outlined circumstances in which judges and the courts will be obliged to mete out sentences harsher than those that judges' long judicial experience lead them to believe it would be in the interests of justice to deliver.

The Bill may give the Government a few cheap headlines in the weeks running up to the election, but I fear that the consequences in the medium term—and possibly in the short term—will be a series of high-profile cases which will show that what has been done by the Government is ludicrous. Sentences will be imposed that bear no proportion to the crime committed. That will bring our criminal law into disrepute and will undermine the thrust to tackle crime. I therefore insist on pressing the Amendment to a vote.

Question put, That the amendment be made:—

The House divided: Ayes 24, Noes 278.

Question accordingly negatived.

Amendment proposed: No. 148, in page 2, line 17, after 'circumstances', insert 'whether relating to the offence or to the offender'.— [Mr. McFall]Question put, That the amendment be made:—
The House divided: Ayes 148, Noes 280.

Question accordingly negatived.

I beg to move Amendment No. 1, in page 3, line 13, at end insert— '3A. Clandestine injury to women or an attempt to cause such injury.'.

With this, it will be convenient to discuss Government amendments Nos. 125 and 3.

Amendment No. 1 fulfils a Government undertaking given in Committee to accept in principle an amendment tabled by the hon. Member for Perth and Kinross (Ms Cunningham), which sought to add "clandestine injury" to the list of offences that could on conviction lead to an automatic life sentence. It differs from that amendment only by giving the offence its full name and by providing for the inclusion in the list of convictions for an attempt to commit the offence as well as for the offence itself. Amendment No. 3 is consequential on amendment No. 1

Amendment No. 125 is a response to comments made by Opposition Members in Committee, but in this case in relation to the list of offences contained in what is now Clause 44. Amendment No. 125 would remove the words "towards a child" from the description of lewd and libidinous practices, and is paralleled by Government amendment 94.

I thank the Minister for listening to the views of Opposition Members in Committee and tabling the Amendment. It is important that the crime of clandestine injury is included. Similarly, I thank the Minister for listening to our views on the definition of offences perpetrated against children. The Opposition are content with the amendment.

Amendment agreed to.

Amendment made: No. 125, in page 3, leave out lines 31 and 32 and insert— '8. Lewd, indecent or libidinous behaviour or practices.' .— [Lord James Douglas-Hamilton.]