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Lord Desai: My Lords, will the noble Lord allow me to help him by saying what he really means in answer to the question of the noble Lord, Lord Tebbit? Does he agree that what he means is that perhaps Parliament would be dissolved before January 1997 to allow us both options of keeping with the currency, perhaps under either government?

Lord Henley: My Lords, as and when Parliament is dissolved is a matter for my right honourable friend the Prime Minister, Mr. John Major, who will be Prime Minister in 1997 and, as I said earlier, will be Prime Minister for considerably longer after that.

Lord Barnett: My Lords, the noble Lord seemed to be saying that, as there is no question of joining the single currency by 1997, there is no need to say what the Government are going to do on the exchange rate mechanism. Why in that case, as my noble friend on the Front Bench said, are the Government troubling themselves with the whole question of a single currency? If they are leaving the options on a single currency open until the end of the century or beyond, why do they not also leave the options open on rejoining the exchange rate mechanism, or, as Article 109j says, at least stay within the fluctuation margins of it?

Lord Henley: My Lords, I do not think that I can take the noble Lord much further. It is quite obvious that there is no need to make our decisions on either for

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the foreseeable future. My right honourable friend the Prime Minister said that he did not foresee any chance of joining the ERM in the lifetime of this Parliament.

Business of the House: Debate, 4th July

3.7 p.m.

The Lord Privy Seal (Viscount Cranborne): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the debate on the Motion in the name of the Lady Saltoun of Abernethy set down for tomorrow shall be limited to five hours.—(Viscount Cranborne.)

On Question, Motion agreed to.

Sports (Discrimination) Bill [H.L.]

Read a third time, and passed, and sent to the Commons.

Commonwealth Development Corporation (No. 2) Bill [H.L.]

Read a third time.

Lord Trefgarne: My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Trefgarne.)

Lord Judd: My Lords, I shall not detain the House for many moments but there are some things that should be said before the Bill leaves this House. We express our appreciation for the way in which the noble Lord, Lord Trefgarne, has gone to pains to ensure that we can all understand the purpose of his Bill and for the commendable way in which the Minister explained the Government's support for it. However, it is important to recognise that there are certain points which still need consideration.

First, all of us on this side of the House who have unqualified admiration for the work of the Commonwealth Development Corporation remain convinced that its role is to increase the number of people participating in the real economies of the third world countries in which it operates. Therefore, the way in which the Bill enables the corporation to function must be judged by how far that objective is or is not fulfilled. It is because of the assurances we received in that respect that we have seen fit to give the Bill a speedy passage through this House.

One other point should be made at this juncture. Since we began debating the Bill the announcement of the name of the new chairman of the corporation has been made. I believe that all of us who have the privilege of knowing the noble Earl, Lord Cairns, and of his distinguished record not only as a merchant banker but as the chairman for many years of Voluntary Service Overseas and indeed also as a board member of the Overseas Development Institute will feel encouraged that he has the purposes of the corporation, as we understand them, very much at

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heart. Had we known of his appointment in advance I am sure that it might have encouraged us to give even speedier assistance to the Bill.

However, we must learn two things from the experience of this Bill. First, if the Bill is so important to the corporation, why was it that Members of this House on all sides were only acquainted of the burning significance of the issues covered by the Bill when it arrived in this House? Why were those who were so well disposed towards the corporation not briefed long before that this was something about which the corporation was frustrated?

Secondly, why was it that while the Government's own Bill on the future of the corporation was still before both Houses of Parliament we saw this Private Member's Bill brought forward, covering an essential element of the corporation's future which the Government had not seen fit to include in their own Bill, accompanied by protestations from them at every stage that the Bill was essential to the future of the corporation? It seems to us to display some confusions, which are not altogether reassuring, about relationships between the corporation and the Government. We have given a speedy process to the Bill despite our anxieties on that front.

In recognising that the Bill now goes forward to an inevitably more hazardous phase before the other place, perhaps I may conclude by emphasising that the role of the corporation, as we see it, is a commitment to development, taking the disciplines of good business and the marketplace very seriously rather than being just another business with a development interest.

Lord Trefgarne: My Lords, I am greatly obliged to the noble Lord for his friendly remarks towards me and the Bill. I hope that that friendliness is repeated by his honourable and right honourable friends in another place when the Bill comes to be considered there, as I hope it will. As regards the reasons why the Bill came forward as it did, rather than as part of the earlier government Bill, the noble Lord may recall that many of us had hoped that it would be possible to amend the government Bill to take into account the proposals contained in my Bill. Sadly, that was not possible within the rules of this House. Those circumstances gave rise to the Private Member's Bill which I have taken the liberty of bringing before your Lordships' House. I am most grateful to the noble Lord for what he said. I hope that your Lordships will now allow the Bill to pass. I commend the Bill to your Lordships.

On Question, Bill passed, and sent to the Commons.

Criminal Appeal Bill

3.14 p.m.

Lord Strathclyde: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Criminal Appeal Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

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Bill read a third time.

Baroness Blatch moved Amendment No. 1:


Leave out Clause 1.

The noble Baroness said: My Lords, in moving this amendment and speaking to Amendment No. 2, with the leave of the House I shall also use the opportunity to speak to the starred Amendments Nos. 3 and 4 in the name of the noble and learned Lord, Lord Ackner, which I know he will speak to later. Also, for the convenience of the House, I shall speak to government Amendment No. 12 to Schedule 2, which is simply consequential to government Amendment No. 2. Finally, I shall speak to Amendment No. 13 to Schedule 2, in the name of the noble and learned Lord, Lord Ackner.

The Government have tabled Amendments Nos. 1 and 2 to give effect to the intention, as we understood it, of the clause tabled by the noble and learned Lord, Lord Ackner, and others, which was supported by this House at Report stage, and which is now Clause 1 of the Bill.

They have been tabled because the Government take the view that the Bill should not leave the Lords in a technically unsound condition. However, I should make clear to the House that the tabling of the amendments has been undertaken without prejudice to the view that the other place might take of the matter. The Government's position in another place will be for my right honourable friend the Home Secretary to deal with when the Bill is further considered there.

The current Clause 1 is technically deficient. In particular, it does not provide any mechanism for the hearing of an appeal or establish the powers which would be available to the Court of Appeal when dealing with such appeals.

Our amendment would therefore replace Clause 1 of the Bill with a clause to amend the Criminal Appeal Act 1968 in order to establish a right of appeal for persons convicted of murder against recommendations made by the courts as to the minimum period which should elapse before the Secretary of State orders their release on licence. The new clause we propose would make clear that appeal lies with the leave of the court, or with a certificate from the trial judge, and would attract the relevant procedural provisions of the 1968 Act.

We have taken the view that it would be preferable to create a new right of appeal rather than to define an appeal against a minimum recommendation as an appeal against sentence. The recommendation is not a sentence and we do not think that it would be right to suggest that it is. In particular, we take the view that the Court of Appeal should in these cases be able to declare a minimum period which appears to the court to be appropriate, whether this period is shorter or longer than the period originally specified by the trial judge. I had understood this to be the import of the question asked of the noble and learned Lord, Lord Ackner, by the noble Lord, Lord Monson, during our previous debate on the subject. We do not think it would be right for the court to be in a position whereby it could not state the recommendation that seemed to it to be right if that period were longer than the original minimum.

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We have not included a power for the Attorney-General to refer unduly lenient recommendations to the Court of Appeal. I would say that we had not understood that that was the will of the House in supporting Clause 1. It is a separate and, I suggest, additional issue.

That would, however, be the effect of the government new clause were the noble and learned Lord's starred amendments accepted. As I have said, this would not have been the effect of Clause 1; and our objections to such a power do go beyond the reasons I set out in opposition to the original clause.

As the House will be aware, the Attorney-General's power of reference was introduced in the Criminal Justice Act 1988 to ensure that in the most serious cases it was possible for justice to be done where it appeared that an unduly lenient sentence had been passed by the trial judge. While the original power has been extended to apply to some categories of cases not covered by the original provision, this has only been after very careful consideration.

In the case of an unduly lenient recommendation some remedy is, of course, already available without the introduction of a power for the Attorney-General to refer cases to the Court of Appeal. The final tariff is set by the Secretary of State.

I made clear during Report stage that one reason for thinking that the new clause, which was supported by this House, would not result in the provision of better advice to the Secretary of State was that the holder of that office would be deprived of a second judicial view in any case where the convicted person did not appeal, including those cases where a lenient recommendation had been made. I accept that he or she could obtain a second judicial view in some of those cases if the Attorney-General had a power of reference.

The Secretary of State finds a second judicial view very valuable. Its lack is, I believe, a necessary consequence of the decision made by your Lordships' House and cannot, with respect, be so easily overcome as the noble and learned Lord may have thought: nor, indeed, could it be the whole answer to the problem. The Attorney-General may well have a view on sentencing but he is not a part of the tariff setting process. He is accustomed to looking at sentencing matters but the minimum recommendations at issue here are rather different. Even if the Attorney-General were given such powers, unless he were to refer all cases which would be an inappropriate use of those powers, there would still be cases coming to the Secretary of State where he did not have the benefit of a second judicial opinion.

This amendment is therefore not the answer to the problem which I put before your Lordships: indeed, I fear that it risks adding new issues which it would be unwise to attempt to resolve in haste at this late stage in the Bill's passage.

As the amendment stands, the amendment itself and the practical procedures which lie behind it present unanswered questions. With great respect to the noble and learned Lord, we see some deficiencies in his drafting of his amendment to Amendment No. 2. It refers to,

3 Jul 1995 : Column 945


    "the danger to the public of such release".

Those may be grounds why the Parole Board decide not to recommend release on licence of a prisoner at the end of the tariff period, but such grounds are not part of the tariff-setting process which relates to the retributive and deterrent element.

The amendment is in terms of an appeal by the Attorney-General. In other comparable provisions the procedure is for the Attorney-General to refer the case to the Court of Appeal.

We also have some reservations about the precision of the words,


    "if he considers that the recommendation substantially underestimates the gravity of the offence"

though we have not yet had time to reach conclusions on that.

The Government are equally worried about procedural questions which neither the Government nor this House have had an opportunity properly to consider. In other cases where the Attorney-General has power to refer to the Court of Appeal, his inquiries into particular cases are triggered in practice, as I understand it, by reports from the prosecuting authorities, the reaction of victims or their families, and press reports. Such cases can then be considered by the Attorney-General in the context of established practice, including experience of comparable cases and Court of Appeal guidance, before he decides whether or not to refer the case to the court.

The position would be distinctly different if the noble and learned Lord's amendment were passed. The amendment would take the Attorney-General into different territory: he would not be dealing with a sentence of a court which, but for his power of reference, would be final. He would be dealing with a recommendation which is not binding on the Home Secretary.

That in turn raises questions about the respective roles of the Attorney-General and the Home Secretary in such a case. In the initial stages, until a body of Court of Appeal judgments built up, it is difficult to see on what criteria the Attorney-General would decide whether to refer a case. It would, I suggest, look very odd for him to take advice from the Home Secretary in such a matter: but in practice experience of tariff setting, and of the relationship between judges' recommendations and eventual tariffs in different classes of case, would be found only in the Home Office.

I would not want to rely too heavily on arguments relating to the Attorney-General's workload, but I think the logical consequence of the noble and learned Lord's amendment would be that the Attorney-General would need to consider a reference to the Court of Appeal in every murder case where there was no appeal against the recommendation, if only to make absolutely certain that the Attorney-General was approaching such cases entirely independently rather than linking—and some would say "confusing"—his role with that of the Home Secretary of the day.

There may be a way through these difficulties. My point is that we have not yet found it and, with great respect to the noble and learned Lord, his amendment

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in relation to the Attorney-General does not give it to us. The Government have tabled amendments to give effect to the specific amendments for which the noble and learned Lord won support in this House, because we regard it as our duty to ensure that this Bill leaves this House in a workable form reflecting the decisions of this House at earlier stages of our proceedings. There was, I concede, a passing reference to the question of a role for the Attorney-General at an earlier stage but that was not an issue clearly before the House when the vote was taken and there are no amendments before the House which would confidently resolve the issue which the noble and learned Lord has raised.

There are too few stages left in this Bill to risk adding new issues. The Government have gone to some lengths, as I hope the House will recognise, to give effect to amendments which, as your Lordships know, we would have preferred this House not to have passed. I suggest we should confine ourselves to that.

The noble and learned Lord, Lord Ackner, has also tabled an amendment to Schedule 2. That amendment effectively renders redundant—as does government Amendment No. 2—Clause 1 of the Bill. If the House accepts government Amendments Nos. 1 and 2, and whether or not it accepts the noble and learned Lord's starred amendments, Amendments Nos. 3 and 4, and the amendment to schedule 2 proposed here would also be redundant. I hope, therefore, that the noble and learned Lord will agree not to press this amendment to a vote.

I hope that the House will accept government Amendments Nos. 1 and 2 which, as I have explained, simply seek to give effect to the spirit of Clause 1 of the Bill. The two government amendments to Schedule 2, to which I referred at the outset, are simply consequential on Amendment No. 2, and I hope that they will be accepted on that basis. I beg to move.


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