§ 6.13 p.m.
§ Consideration of amendments on Report resumed.
§ Clause 26 [Savings for mitigation and mentally disordered offenders]:
§ Earl Ferrers moved Amendment No. 61:
Page 19, line 18, at end insert:
("(2A) Any mitigation of a fine the amount of which falls to be fixed under section 16 above shall be effected by determining under subsection (2) (a) of that section a smaller number of units than would otherwise have been determined.").
§ The noble Earl said: My Lords, this is a minor technical amendment. I beg to move.
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 62:
§ Page 19, line 20, leave out ("a custodial sentence for any particular term") and insert ("any particular custodial sentence").
§ The noble Earl said: My Lords, this is a drafting amendment. I beg to move.
§ On Question, amendment agreed to.
§ Clause 27 [Effect of previous convictions]:
§ [Amendment No. 63 not moved.]
§ Clause 29 [Interpretation of Part I]:
§ Earl Ferrers moved Amendment No. 64:
§ The noble Earl said: My Lords, this is a consequential drafting amendment which we discussed with Amendments Nos. 30 and 31. I beg to move.
§ On Question, amendment agreed to60
§ Lord Windlesham moved Amendment No. 65:
§ After Clause 29, insert the following new clause: ("The Life Sentences Review Tribunal
§ .—(1) There shall be a tribunal, to be known as the Life Sentences Review Tribunal ("the Tribunal"), for the purpose of exercising the functions conferred on it by this Part of this Act.
§ (2) Schedule (Life Sentences Review Tribunal) to this Act shall have effect with respect to the Tribunal.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 65 and to speak also to Amendments Nos. 66, 68, 71, 72 and 73. While this series of amendments is not directly consequential upon the amendments carried in Committee, they complete a detailed plan: the introduction of reforms in sentencing for murder and release decisions as recommended by your Lordships' Select Committee on Murder and Life Imprisonment in 1989.
§ The key proposal was that the sentence for murder should be at the discretion of the court, not fixed in advance as now, so that all the circumstances of the offence might be taken into account before deciding upon the proper penalty. That was the subject of the amendment of the noble Lord, Lord Nathan, which was carried in Committee on 18th April by a large majority. The amendment did not abolish life imprisonment for murder; indeed, the Select Committee specifically recommended its retention, but aimed to remedy the inflexibility of its application.
§ A second amendment carried in Committee on the same date required the judge, when sentencing a person to life imprisonment, to state in open court the reasons for passing that sentence and to specify a penal term currently known as the "tariff', that is, the irreducible minimum period to be served in custody in the interests of retribution and general deterrence before questions of risk come into play in reaching a decision on release. The penal term would be appealable to the Court of Appeal in the same way as the sentence itself.
§ Those amendments now form Clauses 23 and 24 of the Bill. The remaining amendments again stand in the names of the noble Lords, Lord Nathan, chairman of the Select Committee, the noble and learned Lord, Lord Lane, Lord Chief Justice of England, the noble Lord, Lord Richard, leading for the Opposition, and myself, speaking from the Government Benches. I make clear at the outset the context of which these amendments form part in the hope that the Government may regard them as contributing to a uniform scheme, the main features of which have already obtained the consent of the House in Committee.
§ These amendments deal with the remaining, but contentious and difficult, matters of how decisions on the release of life sentence prisoners who have been convicted of murder or other serious offences should be reached. The proposal before the House this evening in Amendments Nos. 65 and 66 is modelled closely on the precedent of the mental health review tribunals which, since 1983, have had the responsibility of deciding when it is safe to release restricted patients. I remind your Lordships that some of those who are confined in the special hospitals at Broadmoor, Rampton and elsewhere have been 61 convicted of manslaughter on the grounds of diminished responsibility and made subject to a hospital order with restrictions. Since the Mental Health Act 1983, the tribunal system has worked satisfactorily without any lessening of confidence in the way in which the decisions on discharge have been taken.
In this series of amendments, notably Amendments Nos. 65 and 66, the proposal is to establish a Life Sentences Review Tribunal to which cases of all life sentence prisoners would be referred towards the end of their penal term. In the case of any lifer who has been convicted for murder, the tribunal would only have power to release on licence and subject to recall. In non-murder cases, release would be either on licence or unconditional. When reaching its decisions, the review tribunal, which would be headed by a High Court judge assisted by a registered medical practitioner specialising in psychiatry and a chief probation officer, would have a statutory obligation to,
have regard to the risk of the life prisoner's committing further serious offences and the need to protect the public against that risk".
§ Your Lordships will find those words in subsection (3) of the proposed new clause which is printed as Amendment No. 66.
§ From this short outline it will seen that the crucially important decision on the release of a life sentence prisoner will be transferred from Ministers (and from the civil servants who advise them) to an independent tribunal with the characteristics of a court. So why is this provision necessary? As the Select Committee probed the administrative procedures which have grown up around this category of prisoner, we found that the proper functions of the executive on the one hand and the judiciary on the other hand had become confused. It was no one's fault, for no one had ever designed the complex procedures in the first place. They had simply evolved piecemeal over many years and in response to a number of unrelated pressures. Because of the rigidity imposed by the mandatory life sentence a measure of fairness was sought by asking the trial judge to recommend how long should be spent in custody in the interests of retribution and deterrence— the basis of the so-called tariff— and a measure of consistency was sought by asking the Lord Chief Justice to add his own recommendation on what that tariff should be. Yet in the Select Committee we found that these judicial recommendations could be, and in a majority of cases over a sample period were, adjusted by a junior Minister. In almost every case they were adjusted in an upward direction.
§ On what grounds were such decisions bearing on the quantum of punishment taken? They were not taken on the grounds of risk, prevention or protection of the public, because those factors do not arise until shortly before the expiry of the tariff, when consideration is given to release. In practice the decision on how long a life sentence prisoner must serve in prison— the tariff period— which is not the same as how long he may serve before he is released, is decided in private and for reasons that are never disclosed. The unavoidable conclusion is that in the past few years a habit has formed of Ministers 62 frequently increasing the judicially recommended tariffs whenever it was felt necessary to do so to reflect their own view of the gravity of the crime. Unlike the trial judge, who had seen the offender in court, the Minister lacked any first hand knowledge of the offender or what he had done. Thus the process depended on written reports from prison officers, doctors, the probation service or the police. For the most part the reports were written in good faith, but they were not open to challenge by the prisoner and they were not made known to him or his legal representative. If error crept in, it would go uncorrected. If facts open to more than one interpretation were before Ministers, contrary views would not be reflected.
§ If the prisoner wished to make representations before the tariff period was set, there was no facility for him to do so. Even the length of the tariff, once fixed by Ministers, was not communicated to the prisoner. It is true that he could in most cases, although not in all, work it out by making a mathematical calculation. But why not tell the prisoner what it was? The same criticisms apply to the decision taken shortly before the expiry of the tariff; that is, whether to release on licence or to continue to detain the prisoner because of the risk of further serious offending. That review is carried out first by the Parole Board and then by the Home Secretary. These procedures— the release mechanisms— have already been found to be unlawful for discretionary life sentence prisoners by the European Court of Human Rights in the case of Thynne, Wilson and Gunnell last year. We shall probably hear more about that case in the course of this debate.
§ It is the greatest mistake— indeed it is a caricature — to shrug off Strasbourg judgments as emanating from some form of alien court interpreting a non-British body of law. It was to check the terrible abuses of power by national governments which preceded the Second World War that the European Convention on Human Rights was signed in 1949. The principles which it enshrined were largely the principles of the common law. Foremost among them was that a person charged with a criminal offence was entitled to be tried and punished by a court of law, and not by the executive. If found guilty and sentenced to punishment, he was entitled to know what was said about him and by whom. He must be given an opportunity to challenge what was said about him, and he was entitled to legal representation. None of those features is present in the current procedures for administering life sentences, or arriving at release decisions.
§ I assure the House that it is not the intention of the movers of the amendments— nor would it be the effect of those amendments— to release potentially dangerous offenders any earlier than at present. Any suggestion to the contrary is unworthy. That has not been the experience with restricted patients convicted of manslaughter and discharged by mental health review tribunals. There is no reason why it should be so with the life sentences review tribunal. Nor is it justifiable to represent the Select Committee's carefully judged proposals as in some way going soft 63 on crime. On the contrary, if the Government are prepared to present these changes in the way indicated, the proposals are capable of commanding greater public confidence than the present system, because of the arbitrary and flawed nature of the mechanisms currently in place.
§ The practice that has grown up in this piecemeal way is as offensive to the traditions of the common law as it is inconsistent with the requirements of the European Convention on Human Rights. It cannot be allowed to continue. I beg to move.
§ 6.30 p.m.
§ The Lord Privy Seal (Lord Waddington)
My Lords, I was not expecting to get to my feet quite so soon, but on reflection it will probably be helpful to the House if I do so.
As my noble friend Lord Windlesham said, the amendments moved by the noble Lords, Lord Nathan, Lord Harris, and others to abolish the mandatory life sentence for murder and to require the judge passing a life sentence to state in court the penal term now appear in the Bill as Clauses 23 and 24. On the same day we debated those matters we considered amendments in the same terms as those now before the House and I invited the noble Lord, Lord Nathan, not to press them because obviously I would have to consider the consequences of the earlier decisions of the Committee and what should be the Government's attitude to the amendments as a whole. The noble Lord, Lord Nathan, was kind enough to agree to that course.
In the debate which took place on that day your Lordships gave extensive consideration to the whole package of recommendations in the report of the Select Committee chaired by the noble Lord, Lord Nathan. The Government accept that the provisions now before the House for reviewing life sentences are part of one comprehensive scheme, or, as my noble friend Lord Windlesham put it, they complete a detailed plan.
It would be wrong for me to pretend that I was convinced by the arguments so far as concerns life sentences for murder. However, that does not imply any disrespect for the view which the House took. It is just that the Government still think that it is necessary to mark a unique crime with a unique penalty, and we believe that the public expect nothing else.
We also still consider that the procedures now applying to the release of offenders convicted of murder properly reflect the public's right to be assured that the state will protect them from offenders of this kind. That responsibility falls upon the Home Secretary of the day as an intrinsic part of his responsibility for the maintenance of the Queen's peace and the protection of the public. He is accountable to Parliament for the way in which he exercises that responsibility and must be answerable to Parliament if he gets it wrong.
It is against that background, and with apologies for dwelling on past discussions, that I believe it will be helpful if I now tell the House how the Government 64 are minded to proceed in dealing with the specific amendments before us. As I understand it, the amendments set out two alternative proposals. The first proposal, which is reflected in Amendments Nos. 65, 66 and 68, is to establish a tribunal whose jurisdiction would include life sentence prisoners convicted of murder. The second proposal, which is reflected in Amendments Nos. 67, 69 and 70, would establish a tribunal whose jurisdiction did not include prisoners convicted of murder.
Your Lordships will appreciate from what I have said that so far as the amendments relate to the procedures for determining the release of prisoners serving what are now mandatory life sentences, namely, those convicted of murder, I have difficulty with them in principle and would prefer it if they were not included in the Bill. However, if they are insisted upon I shall not seek to put the matter to a Division, simply because they form part of the whole package of proposals put forward by the Select Committee and there are obvious attractions in all of them now being considered as a package in another place.
Rather different considerations arise, however, in relation to the discretionary life sentence for offences other than murder. As my noble friend Lord Windlesham said, the European Court of Human Rights has held that in those cases it is appropriate for the prisoner's release to be considered by a body having the status of a court once the period set by the trial judge to punish the offence has been served. Our law will therefore have to be amended on that point. I can assure my noble friend Lord Windlesham that there never was any doubt about that; there never was any intention of shrugging off the effect of that judgment.
While, as I indicated in Committee, we should have preferred to take more time to consider the full implications of the judgment of the European Court of Human Rights, we have decided that it would be right to respond to the views expressed in your Lordships' House by introducing amendments to the Bill during its later stages to deal with that point.
It follows that I agree in principle with much of the alternative set of amendments in the name of the noble Lord, Lord Harris of Greenwich, and others. Clearly, the European Court of Human Rights judgment requires cases involving discretionary life sentence prisoners to be considered by a body having the status of a court. That body should have the power, once the initial term set by the trial judge has passed, to order the prisoner's release if it is safe to do so. Clearly, the body should operate in a judicial manner, giving the prisoner the opportunity to appear before it and to be legally represented.
However, the Government wish to offer alternative proposals on some of the more detailed points. We believe, for instance, that it may be preferable for the tribunal function to be carried out by the Parole Board, operating under a special procedure in the cases concerned rather than that a completely new tribunal should be set up. The relevant panel of the Parole Board would, however, be constituted under 65 the chairmanship of a judicial member of the board, which reflects the proposal in the amendments we are considering.
The present amendments also envisage that a life sentence prisoner might be released unconditionally rather than on licence and that where a prisoner is released on licence the licence might at some future point be lifted. I find it difficult to see, if that approach were accepted, in what sense the sentence would still be a life sentence. It would mean that at some point, perhaps even immediately after release, the prisoner was freed of any restriction or obligation as a result of the life sentence which had been passed on him. I must therefore give your Lordships notice that that particular provision will almost certainly not be reflected in the Government's proposals.
We would also wish to include transitional provisions to enable discretionary life sentence prisoners who have already been sentenced to benefit from the new arrangements.
That is for the future. This afternoon your Lordships will wish to reach a decision on the amendments actually before the House. Therefore, the course the Government propose is this. If the noble Lord, Lord Nathan, wishes to press Amendments Nos. 65, 66 and 68 I shall not ask the House to divide against them, recognising that they are part of a comprehensive package which will send the Bill to another place in proper form. However, I must state that that is without prejudice to the Government's attitude to that package.
If the noble Lord, Lord Nathan, presses Amendments Nos. 65, 66 and 68, Amendments Nos. 67, 69 and 70 in the name of the noble Lord, Lord Harris of Greenwich, will not he put. If they were put as a result of the noble Lord, Lord Nathan, not pressing his amendments I should not object to their inclusion in the Bill either. However, your Lordships will not be surprised if at a later stage we seek to substitute government amendments which will achieve similar ends, but perhaps by rather different means.
I hope that your Lordships find that approach helpful. I hope equally that noble Lords will agree with me that in view of the important principles which are at stake it would be right for the other place to have an opportunity to express its view on the matter. We shall be inviting the Members of another place to do so when the Bill returns there.
Viscount Colville of Culross
My Lords, I was inspired by what I saw in the press last week by way of prophecy to consider what would happen if those journalists were right. The proposals that have now been put forward by my noble friend on the Front Bench prove that, at any rate in part, they were and a role is now proposed for the Parole Board in the resolution of this difficult matter.
I wish to say one or two things, although I must make it plain that I say them entirely for myself, because I have not been able to consult about them. As my noble friend Lord Windlesham said, there will have to he a proper tribunal because, otherwise, the procedure will not comply with Article 5 of the European Convention. If it is a proper tribunal, it is likely that the mental health review tribunals will be a 66 good model. They involve a substantial body of statutory procedure and hearings with witnesses and representation. There is therefore a considerable commitment of time and personnel in any such procedure.
What follows from that, although it would be particular to the Parole Board, is not a matter on which I shall find any difficulty in persuading the Government to do what I hoped they would do, because they would be committed to it in any event by setting up any form of tribunal to deal with the judgments that have come from Strasbourg.
The first point that I should like to make is that, with all due modesty, there probably are among the membership of the Parole Board people of the background, experience, calibre and right disciplines to form exactly the kind of tribunal that is required for those cases. I would not envisage only three people being chosen, but perhaps a panel from which a selection could be made for a particular case.
However, if my noble friend intends to pursue that course, I should tell him that I do not know the amount of time that will be involved in dealing with those cases— that is no doubt one of the reasons why a little more time for preparation might have been a good thing— but it will be not inconsiderable. In persuading people of the necessary seniority and calibre to undertake the task of sitting on the tribunal, Her Majesty's Government will have to consult fairly widely those who otherwise direct the duties of those senior people in order that they may be spared not only for the period of time during which they will be needed to sit on the tribunal, but also for the period of time in which they will enable themselves to acquire the necessary experience of this kind of case by sitting on Parole Board panels and dealing with parallel problems. Unless they have that experience, they will not be uniquely qualified, as they would otherwise be, to deal with the cases that it is now proposed to put before them. My noble friend may like to reflect upon that point because it will be an important ingredient in acquiring people of the required standard.
Secondly, I must tell my noble friend that, on the resources that the Parole Board at present possesses both in terms of money and of staff, that could not be done. As I said, there will have to be a tribunal anyway in order to deal with the cases from Strasbourg— the Gunnell and Wilson cases. It will simply be a matter of putting the funding into the right coffers within the Civil Service machinery. Although we could do it in terms of personnel, we could not do it in terms of resources at the moment. On behalf of my colleagues, I look forward to this as a fairly notable challenge and I think that they will probably share my view.
§ 6.45 p.m.
§ Lord Hailsham of Saint Marylebone
Perhaps I may comment briefly, and I hope within the rules of order, upon the very proper reply at an earlier stage in the debate made on behalf of the Government by my noble friend. I should first like to thank him for obviously having made a serious attempt to cope with 67 the situation with which we are now faced without knowing the Government's final determination upon the matter that we discussed last week.
I was one of those who felt it impossible not to support the Nathan amendments last week and I want to make it quite clear that I have not changed my opinion. However, I should like to put one thought into my noble friend's mind which would arise only if he takes the course, which I hope he will not take, of sticking to the view that murder is a unique offence demanding a unique penalty, which I believe to be contrary to the position in law. He could mitigate some of the evils if he would realise that the substantive law of murder as it presently stands is nonsense because of the mental element that it involves following a series of decisions, for some of which I was responsible in a judicial capacity and on some of which I should have liked to come to a different conclusion had I not been bound by what I regarded as a long series of authoritative decisions which had preceded my own.
Ultimately, the horrible grey area that exists at the moment between murder and manslaughter is not tolerable. It had its ridiculous origin in a by-product of the Reformation which I explained in one of my judgments. I shall not elaborate on that in order to save the House time, but it went on in the insertion into the law of murder of the doctrine of diminished responsibility. As a matter of sheer history, that was put into the law, imported from Scotland, only as a kind of sugaring of the pill when Parliament and the Government of the day made their unsuccessful attempt in 1957 to reintroduce the death penalty for a limited number of kinds of murder.
There is also the horrible grey area of provocation, which makes it impossible to define murder in its substantive sense as a unique offence. On the contrary; the jury has it in its power to make decisions which are quite rightly unpredictable, as the law at present stands. If they intend to stick to their decision, which I hope that they will not, I hope that they will look at the awfulness into which the substantive law of murder has got itself. I hope that they will perhaps look at the decision of the House of Lords when it was split three to two in its judicial capacity in the case of Hyams, which illustrates what I said about the motivation. If it had not been for the long set of what I thought were binding precedents subject to what is called the practice direction in the jargon of the trade, I should have joined with Lord Diplock in saying that murder should be confined to cases in which there is an intention to kill. I thought that in that case Lord Kilbrandon was of the same opinion as myself when he joined Lord Diplock, but I regarded myself as bound not to legislate and I joined the other two. That is how the case came to be decided. The substantive law of murder is part of the difficulty with which we are faced and I hope that my noble friend will take that point on board.
We must now decide what we do next. I was grateful to my noble friend for making it clear that if, as I understood it, it is intended to put the first set of proposals to the opinion of the House, he would not 68 seek to divide on this occasion. The matter will have to be decided because the Government have to refer it to another debate in the Commons.
I was also glad that in certain other events my noble friend was good enough to say that he would accept the "Harris of Greenwich" line of country on non-judicial life sentences, because something of the kind has to be done in order to satisfy the European convention and the decisions of the European Court. I do not pretend for a moment that with two large pages of print these amendments are necessarily the last word. But I hope that, at any rate in principle, my noble friend and the Government will find it possible to accept the view that, whether one keeps the mandatory life sentence for murder or not, it is not possible to leave the period of time which that actually means very often to a junior Minister, or sometimes the Home Secretary himself, when it is part of the judicial function and part of our constitution that the period that is required— whether one calls it the tariff, the penal term or whatever— should be decided in public, communicated to the accused and decided for reasons which are given and which do not depend entirely on the whim of the Executive clothed in impenetrable mystery.
§ Lord Richard
May I say how much I agree with a large part of what the noble and learned Lord, Lord Hailsham, had to say. I am bound to say that, in talking to members of the public about this issue, the proposition that unintentional killing can nevertheless in law be murder and therefore the subject of a mandatory life sentence is one which many people outside the law, and perhaps outside these two Houses, would find very difficult indeed to accept. As we all know, an intent to commit serious bodily harm which results in death, even if there is no intent to kill, is in law murder and attracts a mandatory life sentence.
I do not think there is any necessity to go into the arguments rehearsed at Committee stage on this issue. I simply make two points. First, I thank the noble Lord, the Leader of the House for, so to speak, taking us into the Government's confidence, at least to a certain extent, as far as these amendments are concerned. Secondly, I hope that my noble friend Lord Nathan will not be induced, seduced, or whatever verb one likes to use, into merely moving the fall-back amendments so far as discretionary life sentences are concerned. For the structure to be presented to the other place as a whole, it must clearly include both discretionary and mandatory life sentences.
Finally, perhaps I may leave this thought with the Leader of the House. Are we really going to end up in a situation, which seemed to be the implication if not the express statement of the Leader of the House, in which two people sentenced to life imprisonment, one a mandatory life sentence for murder and the other a discretionary life sentence for another crime, are treated differently under the British system depending on whether it is a murder or a non-murder conviction? The most absurd anomalies may arise from that.
I merely give one example. The mercy killing carried out by a loving spouse would be murder. There 69 would be an intent to kill. There would be very little that a jury could do other than return a verdict of guilty of murder in those circumstances. He or she in those circumstances would not have the advantage of the tribunal system proposed in these amendments. On the other hand, somebody convicted of 27 rapes and therefore sentenced to imprisonment for life would have the advantage of the tribunal system referred to in the amendments. That makes no sense. I merely serve notice on the noble Lord the Leader of the House that if the proposals come back to this House in that state he should not expect to have the suppport of Her Majesty's Opposition.
§ Lord Campbell of Alloway
My Lords, on a point of clarification, my name is to the alternative amendments, Amendments Nos. 67, 69 and 70. With respect to the noble Lord, Lord Richard, those amendments are of limited application and exclude life sentences for murder. The issue is not whether it is mandatory or discretionary. Therefore those alternative amendments are in effect subsumed by the first set of amendments moved by my noble friend Lord Windlesham and may not, with respect to the noble Lord, be moved during the passage of this Bill in your Lordships' House in view of the most helpful attitude taken by my noble friend the Leader of the House. But in this somewhat delicate situation it would be seriously unwise to anticipate the attitude of another place. Much depends upon the manner in which the Government intend to propose implementation of the essential reasoning of the European Court of Human Rights and set up some appropriate judicial machinery not only as regards release of those serving mandatory life sentences and discretionary life sentences but also long-term prisoners. That may well become involved in this concept. It will serve no useful purpose to restate the arguments today, and I would only thank my noble friend the Leader of the House for his conciliatory attitude taken on behalf of the Government.
§ Lord Harris of Greenwich
My Lords, I begin by agreeing with the course of action proposed by the noble Lord, Lord Richard. I think we should accept the amendment moved by the noble Lord, Lord Windlesham, with whose speech I very much agreed. That being so, we should not proceed with the amendment in my name, Amendment No. 67, dealing with the position of discretionary life sentence prisoners.
The only comment I make in relation to what the Leader of the House said is one which takes up the point made by the noble Lord, Lord Richard. Apparently, we are going to have a position in which a man who kills his wife, she having begged him to kill her because she has a terminal illness, will have his case examined exclusively by Ministers in exactly the same way as is now the position. Obviously in such a case there is an intent to kill. On the other hand, a man who is convicted of manslaughter on the grounds of diminished responsibility and on the grounds that he is a dangerous and unpredictable man will have his case heard by the tribunal, with the right of legal representation and the right to give evidence on his 70 own behalf and to call witnesses before that tribunal. I am bound to say I can think of nothing stranger than for the Government to recommend a policy of that kind to the House of Commons. But that is apparently their intention.
We shall have a further opportunity to discuss this matter if Commons amendments come down to us. Therefore one reserves some of the arguments for that occasion. All I say to the Leader of the House in terms of the position of discretionary cases is this. The noble Viscount, Lord Colville of Culross, who is chairman of the Parole Board, raised one or two quite substantial issues. Let us suppose that the tribunal which the Government will accept in this category of cases is to be established within the Parole Board, as apparently is the Government's view. I am sure that, having held the office of Home Secretary, the noble Lord will recognise that this will change the character of the Parole Board to a very substantial extent. The Parole Board does not and never in its lifetime has had oral hearings. It has not given people the right of legal representation.
I do not argue that that is a bad idea. Manifestly it is highly desirable, given the judgment of the European Court of Human Rights. But although I agree with the noble Viscount in terms of the constitution of the tribunal, I hope that the Government will persist in their intention to have a High Court judge as the chairman, a consultant psychiatrist (who in my view will be absolutely essential) and a chief probation officer, and I emphasise the word "chief-. In my view those three must be members of the tribunal. I do not have a view as to whether or not there should be other members.
Finally, I hope that the noble Lord the Leader of the House heard the noble Viscount's powerful arguments to the effect that these changes will require additional resources for the Parole Board. It will be quite impossible to establish a tribunal of this sort without reviewing the resources currently available to the Parole Board.
I have made only the essential points that I wanted to make in the course of this brief debate. I had the opportunity to speak in Committee stage on the two amendments carried against the Government. I have not the slightest intention of repeating those arguments tonight. For the moment we reserve our position on this matter until the Commons amendments return to this House.
§ 7 p.m.
§ Lord Nathan
My Lords, I am grateful to the noble Lord the Leader of the House for the manner in which he has dealt tonight with these difficult matters. But I am bound to say that I wish to press the amendments which stand in my name and the name of the noble Lord, Lord Windlesham and other noble Lords. I want to refer to one or two matters that strike me as being of particular importance which have not been mentioned this evening. However, I do not intend to go over the ground covered in the previous debate on 18th April. I shall refer only briefly to some of the issues with which I dealt then.
71 As noble Lords said, it is quite right that the proposals that we put forward in the report of the Select Committee constituted a set of measures of reform and those were embodied in the amendments put forward, two of which have already been passed overwhelmingly by your Lordships' House and one falls for consideration this evening. However, I point out that the present group of amendments relating to the release procedures has merit and could and should be adopted even if your Lordships had not agreed by an overwhelming majority to the abolition of the mandatory life sentence for murder.
It does not seem to me that there is any contradiction between the question of whether or not a mandatory life sentence should be abolished and the procedures relating to release. When they were last debated on 18th April, I spoke of the provisions in the amendments relating to the rights of the prisoner and particularly the right to make representations to the tribunal, the right of legal representation, the right to receive copies of documents and relevant information relating to the case, subject to the very limited restriction on those rights, to enable him to exercise those rights effectively. As noble Lords are aware, under the release procedures presently in force the prisoner has none of those rights.
When I first looked at this matter it seemed to me remarkable that prisoners are not at present entitled, as of right, to be given reasons when not recommended for release on life licence. I found it significant that the Prison Officers' Association told the Committee that it felt particularly strongly on this issue and said that when a prisoner received a "knock-back" it was the prison officer who was on the receiving end of the prisoner's wrath. We received much evidence on the question of whether there should be open reporting— that is, allowing the prisoner access to all reports on the basis of which decisions on whether or not to release would be made. Both the Carlisle Committee and the Kincraig Committee in Scotland came down firmly in favour, subject to a reservation in Carlisle in the following terms:There will be highly exceptional cases where disclosure will need to be denied to prevent specific harm, particularly to a third party or even&to the inmate himself.The Select Committee agreed with both open reporting and the limited reservations to which I referred.
So far as the prisoner is concerned, the sense of injustice arising from a "knock-back" without reasons and the fantasising as to the reasons that often results would be avoided. Resentment against prison officers which they presently suffer, based on the false assumption that they have maliciously submitted an adverse report, would also be avoided. So the introduction of the recommended procedures relating to the tribunal would be entirely consistent with the evidence that we received on these matters, and with the recommendations of Carlisle on reporting.
I believe that the House should go forward with these amendments— namely, the main amendments, Amendments Nos. 65, 66 and 68— omitting the reasons mentioned by the noble Lord, Lord Harris, 72 both limited to the discretionary life sentences as they have hitherto been, because those matters are subsumed in the larger one which we put forward.
§ On Question, amendment agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.