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Lord McIntosh of Haringey: No, my Lords, this was the time that was offered. I was conscious, without it being said, that we are in the last week before the House rises for the Recess.

Lord Rodgers of Quarry Bank: My Lords, I thought for one moment that we were having two separate debates: one about the timing of this debate and the other about the substance of the matter. As I understand it, we have a single debate. The timing may be relevant

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to it but we are dealing with the substance of the matter. Forgive me if I am wrong. In that case, I ask for guidance on the precise Motion that we are debating at this moment.

The noble Lord, Lord McIntosh, went beyond the question of timing into an expression of view about the role of this House. If that is appropriate to the question of timing, I should like to pursue the matter. But it would be very helpful to have guidance if we are to conduct our proceedings in an orderly way.

Lord McIntosh of Haringey: My Lords, as I was referred to, perhaps I may explain my position. My reference to the role of this House was in relation to the complaint which the noble and learned Lord, Lord Simon, made about the timing. I was not, other than in a passing reference, referring to the substance of the issue which will be before the House when the Motion which is now before the House—namely, that Commons reasons be now considered—is resolved.

Lord Graham of Edmonton: My Lords, I should like to try to be helpful, as the only "usual channel" in his place, which is an accident of the moment.

Today is a very good time to raise the difficulties of business managers in trying to accommodate the will of the House. Today is also a very important day for those involved in the Disability Discrimination Bill. Against the background that the House wants to cease its business at about 10 o'clock, noble Lords proceeded to table many amendments which, if given justice, will take it beyond that time. In addition, the House and the Opposition decided to take two Statements, which took out two hours of the day. That, of course, was unknown before the event came along.

All I can say is that at this time of the year, timing is extremely difficult. For instance, in a debate this afternoon a demand was made that further time be found to discuss that issue before the House rises on Friday. That proposal will no doubt be supported by many people. So the difficulties of a business manager in this situation are well understood.

I am privy to being advised by my Front Bench colleague on what he believes to be reasonable in all the circumstances. But the noble and learned Lords, Lord Simon and Lord Ackner, have a point. They played a crucial part in the business now coming back to us from the Commons. When timetabling is considered, perhaps in the future an occasion may be found to advise them of the timetable intention, above and beyond the published Whip. Last Thursday it was known that the debate would be held today and held in the dinner hour. Some consideration should be given to these matters by the House, perhaps in the Procedure Committee.

Lord Rodgers of Quarry Bank: My Lords, as always, the noble Lord, Lord Graham, is reasonable. However, I am glad that he accepts that there is a problem before the House. I associate myself with the remarks of the noble and learned Lord, Lord Simon of Glaisdale. It is most unfortunate that we are discussing this important constitutional matter at this time of the evening. I should have thought that there would have been some flexibility in the parliamentary timetable;

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first, when it became clear that the Government intended to reject the amendment of the noble and learned Lord, Lord Ackner; and, secondly, when it became plain that we would be taking two important Statements today.

The other point I make, whether or not it is acceptable to the Government, is that this is not the end of the parliamentary Session. There will be a spillover Session. If the Government felt that it was reasonable to give this House a more full opportunity at a better time to discuss this matter, it could have been done in October, before the end of this parliamentary Session.

Baroness Blatch: My Lords, I hope all noble Lords agree that this is an important Bill and that there is anxiety on all Benches to see it on the statute book. Perhaps I may say also that in another place, as the elected Chamber—that is important—they are entirely within their rights to consider amendments passed in this place and to come to a view about them. In fact, this they have done. Not only have they done that, but also they accepted all other amendments passed in this House except this one. This is the one that they rejected.

That meant that there was only one issue to be debated, and my right honourable friend the Home Secretary wrote to the noble and learned Lord, Lord Ackner, on 14th July saying,

    "The purpose of this letter is to let you know that I will be seeking to reverse that amendment at Commons Consideration of Lords amendments on Monday 17th July".

Perhaps I may say too that this business appeared on the Order Paper on Thursday of last week, so that we all understood that the Commons were considering our amendments. We cannot and must not, and will rue the day that we ever do, take for granted what will happen in another place. They are free spirits. They can take a view about amendments. We are a revising Chamber. That is our role. We asked the Members in another place to take a view. They have done so and we are now considering their consideration of our amendments.

I understand also that the Government's business managers spoke to the noble and learned Lord, Lord Ackner, the noble Lord, Lord McIntosh, and a representative for the Liberal Democrats before the business appeared on the Order Paper and there was agreement to this matter being discussed in the dinner hour. I believe therefore that warning was given. We should never take the House of Commons for granted; it is an elected Chamber. And my right honourable friend took the precaution of writing to the noble and learned Lord informing him of his intention to invite the Commons to disagree with this amendment.

On Question, Motion agreed to.

[The page and line refer to Bill 81 as first printed by the Lords]
1After Clause 2, insert the following new clause:
Recommendation in case of life sentence for murder
(". After section 11 of the 1968 Act insert—

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"Appeal against recommendation in case of life sentence for murder.

11A.—(1) Where under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 a court has made a recommendation to the Secretary of State as to the minimum period which should elapse before he orders the release on licence of a person convicted of murder, the person may appeal to the Court of Appeal against the recommendation.
(2) Subject to subsection (3) below, an appeal under this section lies only with the leave of the Court of Appeal.
(3) If the court which made the recommendation grants a certificate that the case is fit for appeal under this section, an appeal under this section lies without the leave of the Court of Appeal.
(4) On an appeal under this section the Court of Appeal, if they consider that a different recommendation should be made, may—
(a) quash the recommendation; and
(b) in place of it declare the period which they recommend to the Secretary of State as the minimum period which should elapse before he orders the appellant's release on licence."")
The Commons disagreed to this amendment for the following reason:
1ABecause the Commons consider that a right of appeal against recommendations as to the minimum period which should elapse before the Secretary of State orders the release on licence of persons convicted of murder is unnecessary and could result in anomalies.
1BLord Ackner to move, That this House do insist on their Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A.

Lord Ackner: My Lords, I beg to move that the House do insist on their Amendment No. 1, to which the Commons have disagreed for the reason numbered 1A. With the leave of the House I shall speak also to my Motion numbered 46B.

I should tell the House immediately that I fully appreciate that to ask those in another place to think for a second time is a bold step to take; that we should be careful before embarking upon it. But not too careful. I have thought long about whether it is justified in this situation and concluded that it is, reminding myself, first, that tomorrow we consider the Criminal Injuries Compensation Bill at Second Reading.

I moved an amendment to the Commons amendment nine months ago and failed. The Commons amendment was to delete our amendment to the Criminal Justice Bill, which required there to be brought into effect Section 171 of the Criminal Justice Act 1988, designed to put on a statutory basis the criminal compensation scheme which had existed for some 30 years. It was that amendment which I lost. I lost it so that the Home Secretary could carry out that which he had done in a manner which had been condemned by this House as unconstitutional and an abuse of Parliament. But much more important; it was condemned as being grossly unfair.

Our failure to ask the House to think a second time would have resulted in that grossly unfair action taken by the Home Secretary being now in force, with the result that large numbers of people seriously and grievously injured would have received around one-tenth of the compensation to which they were

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entitled before the Home Secretary decided, without consultation with either Chamber, to bring in a tariff scheme designed essentially to save money.

But for the courage and the initiative of a number of trade unions who took judicial review proceedings, that would have been the result of our failing to ask the other place to think again. It was only because the Court of Appeal and subsequently the House of Lords found that the Minister had acted unlawfully in what he did in regard to that tariff scheme, that we now have the advantage of there being put before the House the new Bill which clearly concedes the gross injustice which the Home Secretary was intent on perpetrating. In the new Bill those who are seriously injured will no longer take the burden of saving money for the Exchequer. Questions involving loss of earnings, medical treatment and in regard to necessary alterations to their homes to enable them to live with comfort will be taken into account.

That was one reason why I decided that this was a proper case in which to ask that Members in another place think again. In reminding myself of what took place in the debate on 25th October I noticed these words of my noble and learned friend Lord Simon of Glaisdale. He said:

    "It has been said a number of times in your Lordships' House today that we are a revising Chamber. That is true. However, that does not mean merely a Chamber making suggestions which the Government are able to brush aside, and that we shall then run away with our tail between our legs. We are a revising Chamber and not a suggesting Chamber".—[Official Report, 25/10/94; col. 505.]

I also reminded myself of what was stated very recently on the Third Reading of this Bill, again by my noble and learned friend Lord Simon. He said:

    "It would be extraordinarily foolish if the Government encouraged the other place, using their Whip, to challenge your Lordships' view carried so strongly in numbers".

He further said:

    "I can conceive of no reason why your Lordships should change their view after such cogent argument and after such consideration".—[Official Report, 3/7/95; col. 954.]

Those views were supported by my noble and learned friend Lord Hailsham of Saint Marylebone, when he said:

    "It is extreme folly on the part of the Government to disregard professional opinion to this extent".—[col. 954.]

He went on to say:

    "I believe that the Government should approach the judiciary with a greater degree of respect than they have shown in this case. I do not think I have ever known such unanimity to be expressed from the noble and learned Benches as has been expressed in these two debates".—[col. 955.]

Your Lordships may remember that the stimulus for this amendment was the case of Queen v. Leaney. In that case Leaney was convicted of murder. The trial judge made a recommendation that he should serve at least 20 years in order to satisfy the demands of retribution and deterrence. Leaney appealed on the basis that that was an excessive recommendation. He satisfied the Court of Appeal (Criminal Division) that it was excessive but the court concluded that it had no power to intervene in any way because the recommendation by the trial judge was not a sentence or order within the meaning of the relevant Act. However, the Lord Chief

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Justice who presided said that he thought this was a matter which should receive Parliament's urgent attention.

Your Lordships will recall that when the matter was first raised by me by way of an amendment at the Committee stage of the Bill I informed the House that Leaney had put in an application for leave to appeal to the Judicial Committee of your Lordships' House and that as that application was still pending it was not possible for any sitting Law Lord to take part in the debate because he might be involved in hearing the application and, if the application was successful, hearing the subsequent appeal. I said that for that reason I did not divide the Committee on that occasion but would do so when the matter returned on Report, by which time I hoped that the position in regard to Leaney would be determined one way or another. It was determined in the interval. His application was rejected.

The result was that nine retired Law Lords voted for the amendment and eight sitting Law Lords, if one includes the Lord Chief Justice under that title, also voted in favour of the amendment. That is 17 Law Lords. I include in that number the former Master of the Rolls. There were no judges, past or present, who voted against the amendment, except, of course, my noble and learned friend the Lord Chancellor. Not only did those judges vote in favour but the Lord Chief Justice, in addressing the House, said:

    "The amendment certainly has the support of every judge with whom I have discussed it".—[Official Report, 26/6/95; col. 538.]

The Lord Chief Justice, in a memorable address to the House at the Report stage, said:

    "The amendment assumes that the mandatory life sentence for murder remains. Its aim is to administer the operation of that mandatory life sentence more fairly, more effectively and more openly".—[Official Report, 26/6/95; col. 537.]

I propose to address your Lordships under those three headings. With regard to "more fairly", it would involve the same procedure being gone through by the same judges in relation to life sentences imposed in non-murder cases—the discretionary life sentence. It would involve the trial judge hearing mitigation before he made a recommendation. It would involve the trial judge giving his reasons for his decision with regard to the recommended period to be served as a minimum. It would enable, with leave, the prisoner to appeal to the Court of Appeal. It would enable the Court of Appeal to hear his representations, to know the reasons given by the trial judge, and itself then to give a decision with regard to the merits of the appeal. The Court of Appeal (Criminal Division) would be presided over by the Lord Chief Justice.

As to "more effectively", the noble and learned Lord the Lord Chief Justice said this with regard to the part he plays at present:

    "And may I make it clear that when I give my views under the present convention I have very little information. I have not been at the trial, I do not have the benefit of hearing representations and I have only a brief report from the trial judge".—[Official Report, 26/6/95; col. 538.]

So his function would be much more effective. The paucity of the part he plays was confirmed by his predecessor, my noble and learned friend Lord Lane, and by the former Lord Chief Justice of Northern

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Ireland, the noble and learned Lord, Lord Lowry. Thus "more effectively" is clearly made out. I should add, under "more effectively", that by this procedure—this point was made by the Lord Chief Justice—guidelines in regard to these recommendations would be laid down by the Court of Appeal so that judges would know openly what are the criteria that they should apply, and consistency would thus be better achieved. "More openly" was the noble and learned Lord's third point. Although it is disclosed ultimately to the prisoner, what goes on now takes place behind the scenes with confidential letters being written to the Home Secretary. The noble Baroness, Lady Blatch, conceded that there was a case for wider or broader transparency. On Report, my noble and learned friend Lord Lowry said:

    "I suggest that openness in the administration of justice is one of the main foundations of public confidence".—[Official Report, 26/6/95; col. 546.]

The odd situation is that the Minister in the other place yesterday, when commenting upon openness which would result from the new procedure, said:

    "The issue of openness was dwelt upon by the hon. Gentleman and the right hon. Member for Berwick-upon-Tweed (Mr. Beith). I do not believe that the amendment has anything to do with that".—[Official Report, Commons, 17/7/95; col. 1361.]

In the letter which the Minister was kind enough to write to me informing me that he was taking such action, he said:

    "I would just add that I regard the present arrangements as both sensible and effective".

As I have quoted the views of lawyers, perhaps I may invite your Lordships to consider the observations which were made by the noble Lord, Lord Windlesham, who is a former Minister of State at the Home Office and former Leader of this House. He said on Report:

    "How is that fixed term set? It is set by recommendation of the trial judge, subject to review, as we have just heard from the noble and learned Lord, Lord Taylor, by the Lord Chief Justice who has little more new information available to him. Indeed, all he can rely on is the fact that he sees a number of such cases. Therefore, he can introduce an element of consistency if he feels that the recommendation is out of line. There is very little else that he can do. Then his minimum term to be served is decided in private by a Minister who has not seen the defendant, who is not aware of the particularities of the case, and who may have other, possibly political, considerations in mind".—[Official Report, 26/6/95; col. 542.]

Why has there been such resistance throughout to what has been properly characterised as a modest improvement in the just determination of such issues? I have indicated all along that it is Executive convenience—the Executive convenience of saving potential embarrassment. If the Court of Appeal lays down guidelines which are publicised, and the Court of Appeal says in a given case after hearing argument and considering the views of the trial judge what should be the appropriate tariff, as it is called, part of the sentence, then, because all would be in public, the Home Secretary would have great difficulty in justifying any major departure from the decision as to what is the right punishment.

That view was corroborated by the reaction of the Government to a suggestion of a further amendment which I made purely as a result of the noble Lord, Lord

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Monson, inquiring what could be done if the trial judge's recommendation was an under-recommendation. I looked into the matter and discovered that the Attorney-General (whose function it is to interfere where sentences are excessively lenient) would have no power in a recommendation because it was not a sentence or an order. Consequently, I drafted the necessary amendment.

As your Lordships will recall, the amendment was moved on Third Reading and was strenuously resisted by the Government. The strenuousness of the resistance was made clear by a letter which was sent to me by the noble Baroness and from which I quoted on Report (in Hansard at col. 949). The letter said:

    "Extending the power of reference in the way you propose would also have potentially serious implications for the workload of the Attorney-General. We could not extend the power without very careful consideration with him and a careful weighing of the merits of such an addition to his role".

Since 1991, four years ago, the Attorney-General has had the power in law to intervene in every recommendation made in life sentences in non-murder cases. That is because they are orders and, therefore, he has the authority to intervene: same type of sentence, sentence for life, and same judges imposing the sentence. All it needed—and, as I told the House, this I carried out—was a simple telephone call to the Registrar of the Court of Appeal Criminal Division, Master McKenzie, with the query, "How many times has the Attorney-General intervened in the past four years?" Back came the answer, none.

Why that anxiety to ensure that the Attorney-General did not come on to the scene? The amendment drafted by the Government to improve my amendment provided that the Court of Appeal Criminal Division on an appeal should have the power to put up a recommendation, it being pointed out that it would be wrong for a recommendation to go out publicly which was an invalid one. Why that anxiety? It was for the self-same reason of potential embarrassment. If the Attorney-General is involved, that might of course pre-empt what the Minister for good political reasons may wish to do. The Attorney-General goes before the Court of Criminal Appeal and says to the court that he considers that a proper recommendation is "X" and the Court of Appeal Criminal Division accepts it. Of course, that makes it very difficult for the Home Secretary to intervene in any markedly different way. That is the reason.

Again, one should refer to what the noble Lord, Lord Windlesham, said on Report:

    "For many years it was highly unusual for the Home Secretary not to accept, or to vary, the judicial tariff. But that practice began to change some years ago and now we know, through Answers to parliamentary Questions and judicial reviews in the courts, that the Home Secretary may, and quite frequently does, alter the tariff if he feels that circumstances justify it".—[Official Report, 26/6/95; col. 542.]

As I pointed out, one has the demands of justice versus the demands of Executive convenience. It is for that reason and where there is that sort of clash that one has the quite unusual situation where, in my respectful submission to the House, we are wholly justified in exercising the power which this House undoubtedly has of asking Members of another place to think again. I invite your Lordships to stand firm. I beg to move.

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Moved, That this House do insist on their Amendment No. 1B, to which the Commons have disagreed for their reason numbered 1A.—(Lord Ackner.)

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