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Lord Simon of Glaisdale: My Lords, there is no need to go over the merits of the matter. They have been cogently argued by my noble and learned friend. I desire to make only two points. First, if your Lordships had stood firm on this issue, there is no doubt in my mind that the Government would have given way, because, if they had not done so, they would have lost the Bill for the Session.

Secondly, the noble Lord, Lord McIntosh, took up a perfectly consistent attitude constitutionally, consistent with what he has said before and what he believes. It may not be altogether consistent with the constitutional ideas that are being peddled by some of his colleagues, but I think that he recognises that. However, what I found pathetic was that the noble Baroness, a Tory Minister of State, should appear to be adopting the theory of single Chamber government—and that of a Chamber tightly under the control of the Government, any government, exercising its powers through the Whips and through the constituency associations.

Having said that, there is the question of whether my noble and learned friend should carry his Motion to a Division. That is a matter for him, but I have been conscious that outside the Chamber are quite a number of fresh-faced strangers, windswept and seemingly straight from the brushwood. It would be idle, I think—although it would be attractive—to compare those who have listened to the debate with those who appear in the Division Lobby. My noble and learned friend may well feel that it would be a stultifying exercise, particularly in view of the fact that there are a number of amendments to an important Bill which are still awaiting consideration by your Lordships.

Lord McIntosh of Haringey: My Lords, two issues are before us. The first is the merit of the original amendment which was moved and carried by the noble and learned Lord, Lord Ackner, and the second is the question: what shall we do about it? On the first issue, I am unequivocally in support of the noble and learned Lord. Indeed, I encouraged my noble friends to support him in the Division Lobby and we were pleased when he was successful—though not, I must say with due personal respect to both noble and learned Lords, because it was supported by all of the learned judges. I think that the House must make decisions on legislative matters on their merits as we see them, even those of us who are not lawyers—indeed, perhaps especially those of us who are not lawyers. If I find myself in total opposition to 17 present and retired noble and learned Lords, that will not cause me to lose a moment's sleep. It is not the argument from authority which is important.

The noble and learned Lord's argument with which I agreed was one of political judgment. It seemed to us that in this Bill, of which we thoroughly approve and which we want to see on the statute book—indeed, we want to see it on the statute book before the end of this week—is a defect which, because of the peculiarity of the passage of the Bill which abolished capital

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punishment in 1965, put the mandatory life sentence for murder on a different footing from other sentences. It seemed to us wrong that those who are convicted of murder and given a mandatory life sentence should be denied the right to appeal which is available to all other convicted prisoners. It was on that basis and on that basis alone that we supported the noble and learned Lord both in argument and in the Division Lobby. There is nothing between us on the issue.

Now we come to the question of what we should do about it. I acknowledge the force of what the noble and learned Lord, Lord Simon, said to me half an hour ago. He said that we were not faced with a situation where the House of Commons had made a judgment with which we disagreed and on which the other House reaffirmed its judgment. The noble and learned Lord was right to say that because the amendment was introduced for the first time in this House. Therefore, the House of Commons considered it only once. I acknowledge that there could be circumstances under which the fact that the amendment was considered on only one occasion could justify us saying to the Commons, "Please think again". That is not the normal circumstance and I would not normally agree with such a view because, as I said earlier, I believe in the supremacy of the elected Chamber. I am not terribly impressed by arguments about the subordination of this House. I take a minimalist view of the responsibilities, if not of the honour, of this House. So, I acknowledge that this case is different from that which commonly arises.

However, having said that and having said that under certain circumstances this might be an occasion when I would wish to go against the expressed view of the House of Commons, I do not think that this is such an occasion. I believe that the merits of this Bill so greatly outweigh what is an important but second-order defect that it would be in the interests of best political judgment of any party and any part of Parliament that the Bill should go through. In those circumstances, I agree with the advice which the noble and learned Lord, Lord Simon, gave to his noble and learned friend. Much as we support the latter on the merits of the issue and much as we admire his tenacity in bringing it forward again, I think that it would be a pity if he sought the opinion of the House on it.

Lord Rodgers of Quarry Bank: My Lords, the Minister said that the House of Commons was entirely within its rights to reject a Lords amendment. One cannot disagree with that. However, it is entirely within the rights of this House to continue to pursue the matter in the way that has been considered.

I do not agree with the use of language of the noble Lord, Lord McIntosh, when he referred to the "supremacy" of the other place. That is not my understanding of the constitution of this country. We have parallel and different responsibilities. Although the elected House is in a special position, there is no reason why this House should not use its powers when they exist.

I shall say nothing about the substance of the matter, which was referred to on Second Reading, discussed in Committee, carried on Report and discussed again

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tonight. I do not think that there is any doubt about the will of the House on that matter. For that reason, I am sorry that the Government chose to reverse in the other place the position that was adopted here.

I should like to make two further points about the occasion and the appropriateness of the proceedings. First, this is not a narrow party issue. I rather agreed with the noble Lord, Lord McIntosh, when he said that 17 Law Lords would not always persuade him of the rightness of a cause. However, it was not only 17 Law Lords, but over 100 other Members of this House on all sides—

Lord McIntosh of Haringey: My Lords, if the noble Lord will allow me, I said that I was persuaded of the rightness of the cause.

Lord Rodgers of Quarry Bank: My Lords, I did not deny that the noble Lord was persuaded of the rightness of the cause. I understood him to say that 17 Law Lords would not necessarily persuade him because of their weight and stature. That is what I was agreeing with. However, the vote went very much wider than that and I think that that is the first reason why we should consider carefully whether the matter should be pressed further.

The second is this: I see the Government Chief Whip on the Front Bench. From time to time he loses votes by bad management, if I may say so, and occasionally by bad luck. There are occasionally ambushes in this place. We all play games from time to time. But this was not an ambush; this was not bad luck; it was not, with respect to the Chief Whip, bad management; it was a proper expression of the view of the House. That is why a great deal more force should be attached to it than if it were in that other category.

There are times when the House should stretch its convictions to the extent of its powers. If the noble and learned Lord, Lord Ackner, chooses to do so, we on these Benches will be with him.

8.30 p.m.

Baroness Blatch: My Lords, this amendment relates to a clause which was inserted into the Bill at Report stage. As the House will recall, the clause was added by a majority of 16 against the Government's advice. I can assure the House that my right honourable friend the Home Secretary and I have considered very carefully indeed the arguments which were advanced in this House by the noble and learned Lord, Lord Ackner, and other noble Lords who spoke in favour of the clause. I have to say that we continue to believe that the new clause is unnecessary and indeed, as has been said at other stages of the Bill, could give rise to anomalies of its own.

Where I do agree with the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Rodgers of Quarry Bank, is that it is of course possible for the House to send back this amendment to another place to ask it to think again, but, like the noble Lord, Lord McIntosh of Haringey, I hope that the House will not choose to do that.

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My right honourable friend the Home Secretary explained why the Government reached that conclusion in the other place last night. I should like to explain briefly why the Government do not feel able to accept the proposal put forward by the noble and learned Lord, Lord Ackner.

The clause in question relates to the mandatory life sentence for murder. As the House knows, it is open to the trial judge, when passing sentence, to make a recommendation to the Secretary of State as to the minimum period of imprisonment to be served. The judge is not obliged to do so and in practice formal recommendations are made only in a minority of cases. The new clause would provide a right of appeal against a recommendation made in open court.

At Report stage the noble and learned Lord, Lord Ackner, argued that a right of appeal was necessary to rectify an anomaly as between discretionary and mandatory life sentences. In the case of discretionary life sentences, the judge is required to specify the "relevant part", which is the minimum period of imprisonment the prisoner must serve. There is a right of appeal against the judge's order as to the relevant part, but there is no right of appeal against a formal recommendation in mandatory life sentence cases.

The reason for that apparent anomaly is straightforward. In the case of discretionary life sentence cases, my right honourable friend the Home Secretary has no part to play in setting the tariff. He has no power to modify the trial judge's order as to the relevant part. It is therefore necessary that there should be a right of appeal, otherwise the judge's order would go without challenge.

On the other hand, a formal recommendation in mandatory life sentence cases is just that—a recommendation. The role of the judiciary in relation to the tariff in mandatory life sentence cases is advisory only: the decision on tariff is taken by my right honourable friend the Home Secretary.

Since the trial judge's recommendation is only advisory, and in no way binding on my right honourable friend, I can see no reason why there should be a right of appeal against it. It is only one part of the tariff setting process, and it does not constitute the final decision. That is wholly different from the effect of the relevant part in discretionary life sentence cases. The perceived anomaly does not therefore exist.

Much of the discussion about the right of appeal proposed by the noble and learned Lord, Lord Ackner, has focused on the question of openness. It is claimed that if recommendations were made in open court, with a right of appeal against them, that would provide greater transparency than the present procedures.

I should like to clarify one issue. As I said at Report stage, it is entirely a matter for the judiciary whether or not to make recommendations in open court. Judges already have discretion to do so, and the Government would have no objection if recommendations were made in open court as a matter of course in mandatory life sentence cases. If the noble and learned Lord, Lord Taylor, thinks it appropriate to issue guidance on that point, that is entirely a matter for him. In short, if judges

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consider that greater openness would be achieved by making recommendations in open court, they are free to do so. No change in the law is required.

As regards the procedures for setting the "tariff" in mandatory life sentence cases, I should point out that these procedures were thoroughly overhauled in 1993 to reflect the judgment of this House in its judicial capacity in the case of Doody. I believe that the present arrangements are anything but secretive, and I should like to take a moment to explain them.

In every case where an offender is convicted of murder, the trial judge completes a detailed report on the background to the case. Whether or not he had made a formal recommendation in open court, the judge sets out his advice on the minimum period which should be served for retribution and deterrence. This report goes first to the Lord Chief Justice, who adds his own comments.

The whole of that report, apart from opinions about future risk, is disclosed to the prisoner together with any other relevant papers, such as details of previous convictions, which will be put to Ministers in due course. That means that in practice the prisoner sees everything that is relevant to the setting of the tariff.

The prisoner is given the opportunity to make any representations he or she wishes on the judicial recommendations and the other contents of the report. It is, however, made clear to the prisoner that the judicial views are advisory and the tariff will be set by the Secretary of State. The prisoner's representations, along with the judicial report, are then submitted to my right honourable friend, who makes the decision on tariff. That is communicated to the prisoner.

If, after considering the judicial advice and the prisoner's representations, my right honourable friend decides that a higher tariff is required for deterrence and retribution than was recommended by the trial judge, the prisoner is given detailed reasons for that decision. And those reasons are, of course, open to scrutiny by the courts by way of judicial review.

To summarise, the prisoner is aware of the judicial view and has the opportunity to make representations. He or she is then told of the tariff set. If there is any departure from the judicial advice, he or she is given detailed reasons. Once the prisoner has been informed of the tariff, we are prepared to disclose both the tariff and the judicial recommendation in individual cases to anyone who asks. The process cannot be described as secretive; it could hardly be more open.

Perhaps I may give the statistics, because they are revealing. Of the 130 tariffs set from 1994 through to February 1995, 89 were set in line with the trial judge's recommendation; 32 were set in line with the Lord Chief Justice's recommendation where his recommendation was different from that of the trial judge; six were set between the two judicial recommendations (the trial judge and the Lord Chief Justice) and only three were set higher than either judicial recommendation. Of the 140 tariffs set between 1994 and approximately April of this year, in 86 cases the Lord Chief Justice's recommendation was broadly in line with that of the trial judge; in 34 cases the Lord Chief Justice's recommendation was higher than that of the trial

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judge—that is, approximately 25 per cent. of the cases where the Lord Chief Justice took a different view—and in 20 cases the Lord Chief Justice's recommendation was lower than that of the trial judge (approximately 14 per cent. of the cases).

It seems to me that the present procedures are fair, open and sensible. They ensure that proper weight is accorded to the advice of the trial judge, who has heard all the evidence, and that of the Lord Chief Justice, who can bring his wider experience to bear either to confirm the trial judge's advice or, as has been the case, to offer a different view. The prisoner has every opportunity to make informed representations before a decision is taken on tariff. And the final decision rests with my right honourable friend the Secretary of State, who has been entrusted with that responsibility by Parliament as the guardian of the public interest.

The noble and learned Lord, Lord Ackner, referred to the criminal injuries compensation scheme and the Government's proposals which were found to be unlawful. There is nothing unlawful, unfair or unreasonable about the arrangements for setting the tariff in life sentence cases. Indeed, the present arrangements were drawn up following the judgment of the House in the Doody case, and are fully in line with that judgment. They have also been scrutinised by the European Court of Human Rights and not found to be in any way in breach of our international obligations.

As I said, we regard the present procedures as fair, sensible and effective. We do not consider that they would be improved by the right of appeal proposed by the noble and learned Lord, Lord Ackner, against what is only a piece of advice at the start of the process. The arrangements for setting the tariff in mandatory life sentence cases were substantially overhauled. They are working well. They ensure that proper weight is attached to judicial recommendations on tariff but recognise that the final decision rests with my right honourable friend the Home Secretary. Perhaps most importantly, they appear to command public confidence in this highly sensitive and controversial area of criminal law.

I believe that it would be wrong to disturb these arrangements by introducing a new appellate procedure into one aspect, and not the most significant part, of the tariff-setting process. For those reasons, I hope that your Lordships will agree that the case for the right of appeal proposed by the noble and learned Lord, Lord Ackner, has not been made out.


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