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Lord Ackner: My Lords, the noble Baroness said that the Government wanted the position to remain as it is. Now that the Home Secretary no longer has any part to play in determining the time that an individual prisoner spends in prison, how will the procedure in court relating to what the judge says and does differ between murder and discretionary life sentences?

Baroness Scotland of Asthal: My Lords, if a person is convicted of murder and the life sentence imposed, that person will, whatever tariff the judge alights on, remain on licence for the remainder of their life, once the tariff has been served and the person released into the community. With a discretionary sentence, the sentence imposed in terms of years would, unless the court determined that that person should be subject to a life sentence, be the total period served by the defendant. Such a person would not, I imagine, thereafter be on licence.

Lord Ackner: My Lords—

Lord Renton: My Lords—

Baroness Scotland of Asthal: My Lords, I remind the House that we are on Report—

Noble Lords: Third Reading.

Baroness Scotland of Asthal: Third Reading—even worse. At Third Reading, the constraints on your Lordships are even more rigorous, and the scope for questions more limited.

17 Nov 2003 : Column 1809

Lord Ackner: My Lords, I am entitled to ask a question. I have not had an answer to my question. How will the procedure in court differ, now that the Home Secretary has no part to play? Does the judge say, "The period that I consider that you should serve by way of the penal part is X. After that, you will be subject to the Parole Board"? Or, will he say, "I make no recommendation, because life should mean life". How will the position differ, if at all?

Baroness Scotland of Asthal: My Lords, at the moment, we do not have the rules that will apply to such matters. With regard to the procedure for murder and discretionary life sentences, we believe that the murder tariff will be set by the court with reference to the principles that we outlined, while, with discretionary life sentences, the court will set the tariff but not on those principles.

I anticipate that the court, in one sitting or two, will, first, give the nature of the sentence—life imprisonment. Secondly, it will say what the tariff should be. Thirdly, it should describe to the defendant what the proposals are for the role of the Parole Board. Fourthly, it should say that a life sentence, if imposed, will be life on licence for the remainder of the person's life. I cannot tell your Lordships the precise details. The rules relating to how the system will work in practice have not been set. However, it will certainly be for the court to set the tariff.

That will not impinge in any way on the fact that, if a life sentence is imposed, all that the judge will be doing is indicating the part of the sentence that must be spent in custody. Whatever remains, after the custodial sentence is served, will be on licence. The defendant will remain on licence, whether released by the Parole Board on conditions or otherwise, for the remainder of his life.

It is a matter of concern. I join the noble Baroness, Lady Anelay of St Johns, in saying that we must do better in helping people to understand that life means life. It may be that the whole of the life sentence will be served in prison or that part of the sentence will be served in prison and part will be served in the community.

The document produced by the Law Commission is very helpful. I should like to take the opportunity to thank the Law Commission for its valuable work and analysis in this area. The paper refers to the relationship between the partial defences to murder and the mandatory penalty. It argues that were the mandatory penalty to be abolished, there would be less need for the partial defences, which is an issue that will be looked at.

The document is an initial consultation paper that sets out options for reform. In due course, the Government will consider the final report. However, I must make it clear that we have absolutely no intention to abolish the mandatory life sentence. That is our firm policy and an understanding of our position is reflected throughout the Law Commission report. It is clear from the consultation document that the Law

17 Nov 2003 : Column 1810

Commission would not claim that these matters are simple or that the abolition of partial defences and mandatory life is the only option.

I hope that I have made clear why the Government consider this an appropriate matter to retain and why it would not be right to accept the amendment. I invite the noble Lord to withdraw. I make it plain that if the amendment is pressed, the Government will resist it.

Lord Renton: My Lords, before the noble Baroness sits down, for the sake of the record, would she tell us the present position with regard to the Royal prerogative of mercy?

Baroness Scotland of Asthal: My Lords, the Home Secretary had, until the Anderson case, an ability to set the tariffs. The Parole Board exercised the judgment on behalf of the public in relation to when it is safe and satisfactory to release those persons. The noble Lord will remember that the Royal prerogative of mercy was of particular importance when we still had the death penalty. I know that the new shadow Home Secretary would like to reintroduce lethal injection as a means of dealing with murderers, but it is not a view with which we concur.

Lord Ackner: My Lords, my noble and learned friend Lord Lloyd is a very busy person. I anticipated that there could be a possibility of his not being available when the amendment was called. It was not out of any desire to put the position on the basis of alphabetical merit, but in order to know where I stood. In fact, when the amendment was called on Report, he was not there.

Lord Lloyd of Berwick: My Lords, nor were you.

Lord Ackner: My Lords, I was. My noble and learned friend was not there to protest about the situation. I accordingly managed to get it stood over; I did not know how it would be today.

I should like to make two points. First, the noble Baroness spoke as if the discretionary life sentence does not involve imposing a life sentence when it is appropriate. One imposes, at one's discretion, a life sentence. Subsequently, all the questions about remaining on licence for the rest of one's life come into being. The only difference is that, under my amendment, the prisoner gets his "just deserts". It is a fair sentence.

Secondly, I want to refer to what happened in 1991 when there was a ping-pong arising out of the success in this House of a majority vote of nearly 100. The noble Lord, Lord Waddington, Leader of the House and former Home Secretary, according to The Times dated 4th July 1991, said to the House:


    "I am certainly not saying baldly to you that the Commons has spoken and you must agree. I am very well aware of how often you have shaped public opinion and attitudes and I would not be surprised if, at some future date, policy on this matter does change as a result of a change in public opinion which you have influenced".

I say that that date has arrived.

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Finally, I refer to what Lord Hailsham said when he described the reasons given in the Commons for insisting as,


    "frankly and intellectually ridiculous".

He continued:


    "One day people will see sense, even in the House of Commons, and the hairy heel of populism which they have followed will ultimately disappear".

I think that we should have the opportunity of showing that is the case today.

5.6 p.m.

On Question, Whether the said amendment (No. 73) shall be agreed to?

Their Lordships divided: Contents, 92; Not-Contents, 116.

Division No. 1

CONTENTS

Ackner, L.
Addington, L.
Alexander of Weedon, L.
Ampthill, L.
Avebury, L.
Bagri, L.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Bledisloe, V.
Borrie, L.
Brennan, L.
Brittan of Spennithorne, L.
Campbell of Alloway, L.
Chalfont, L.
Chan, L.
Colville of Culross, V.
Craig of Radley, L.
Craigavon, V.
Dahrendorf, L.
Dholakia, L.
Donaldson of Lymington, L.
Eden of Winton, L.
Elles, B.
Elton, L.
Fearn, L.
Geraint, L.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Holme of Cheltenham, L.
Hooson, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hurd of Westwell, L.
Hussey of North Bradley, L.
Hylton, L. [Teller]
Kennedy of The Shaws, B.
Laird, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Listowel, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Maddock, B.
Mallalieu, B.
Mar, C.
Mar and Kellie, E.
Masham of Ilton, B.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Monson, L.
Morris of Aberavon, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Newby, L.
Northover, B.
Palmer, L.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Prashar, B.
Quinton, L.
Rawlinson of Ewell, L.
Rennard, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roll of Ipsden, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Strange, B.
Swinfen, L.
Thomas of Gresford, L.
Tordoff, L.
Walmsley, B.
Weatherill, L.
Wedderburn of Charlton, L.
Williams of Crosby, B.
Wilson of Dinton, L.
Wright of Richmond, L.

NOT-CONTENTS

Acton, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. (Lord President)
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Blackstone, B.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fowler, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haskins, L.
Hodgson of Astley Abbotts, L.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mishcon, L.
Mitchell, L.
Nicol, B.
Orme, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rooker, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Skelmersdale, L.
Stewartby, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Warner, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

17 Nov 2003 : Column 1812

5.16 p.m.

Baroness Scotland of Asthal moved Amendment No. 74:


    After Clause 270, insert the following new clause—


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