§ 1 After Clause 2, insert the following new clause:
§ Recommendation in case of life sentence for murder
(". After section 11 of the 1968 Act insert—
§ "Appeal against recommendation in case of life sentence
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:
§ 1A Because 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.
§ 1B Lord 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 193 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 194 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 195 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 196 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.
§ Moved, That this House do insist on their Amendment No. 1B, to which the Commons have disagreed for their reason numbered 1A.—(Lord Ackner.)
§ 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 198 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 199 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.
200 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 201 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 202 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.
§ Lord Ackner
My Lords, during the course of the debate on Report the noble Baroness stated that the Home Secretary takes very seriously the views expressed by the noble and learned Lord the Lord Chief Justice. The noble and learned Lord the Lord Chief Justice, supported by his predecessor and by the former Chief Justice of Northern Ireland, has said that he cannot currently contribute anything of great significance when it comes to expressing his view because he does not have the material.
If the Home Secretary takes very seriously the views of the Lord Chief Justice, why on earth does not he want those views to be wiser and better informed so that when 203 he receives them he has better material on which to make his decision? That would the result of an appellate provision. As I have indicated, the Lord Chief Justice will have heard the reasons of the trial judge; he will have heard mitigation advanced before the Court of Appeal; and he will have had the advantage of discussing the matter with his two brothers on the Court of Appeal.
The noble and learned Lord the Lord Chief Justice confirms that that will be a far more efficient process. Why is it being rejected? There seems to be no sensible reason. The Minister says that it is all working very well but the stimulus for coming to your Lordships was a case that did not work well. It was the case of Leaney where there was an over-recommendation which the court could do nothing about. In future, it will be apparent that there will be no question of being able to get an over-estimate or an under-estimate dealt with because there is no right of appeal and therefore no leave will be given.
The anxiety about the Court of Appeal is worrying because the noble Baroness says, "Of course, the trial judge can do it. We don't mind if he does it regularly. We have no objection to that". But, if it is to be done regularly, why the resistance to improving the nature of his decision by adding to its quality by process of a potential review on appeal? No answer has been given to that question.
Perhaps I may comment on the remark made in answer to my reference to the strong judicial support which was particularly emphasised by my noble and learned friend Lord Hailsham. I am not concerned with the weight and the status of the Law Lords. I am concerned with the subject matter of the debate. The subject matter of the debate was justice. When that number of judges from your Lordships' House comes here and says what is the just and proper procedure they are addressing your Lordships as experts. That is the significance; the unanimity of experts and an unusual turnout of experts.
I have noticed among my brother Law Lords no great enthusiasm to take part in the activities in this Chamber. It involves a great deal of extra work out of, so to speak, office hours. In fact, I intervened some years back only because my noble and learned friend Lord Brightman chided me because there were constant debates on sentencing and no judge ever turned up to give the view of the judiciary, to answer some of the criticism and to provide the explanations. Therefore, it is not a question of weight and status.
As regards the tactics of bringing this matter back, I have clearly been out-manoeuvered. I did not understand the coded message in the forthcoming business for Tuesday—that is, today. It reads:Criminal Appeal Bill: Consideration of any message which may be brought from the Commons".That is why I telephoned the Whips' Office to discover what was going on. I was told that there would be an application or an amendment would be moved in the Commons. I asked what it was and I was told that the Whips' Office then did not know. I asked whether it 204 was a secret and I was told that they did not think so. I said, "Well, perhaps I could be informed". Thus I learnt what might be involved.
On Friday came the letter. It gave me no opportunity to inform Cross-Benchers at our Cross-Benchers meeting on Thursday of this subject in which they were interested. I understand that it gave the Opposition and the Liberal Democrat Party no opportunity to put out a whip to discuss the matter. Which day is chosen? Tuesday, which is scheduled for a train strike. That is a happy situation in which to expect people to be here at 8.30 p.m. And when? It is during the dinner hour. Right from the outset I appreciated that the possibility of getting sufficient steam behind the Motion was doubtful, but at least I thought it right for the House to hear criticisms of what has been done and the meritlessness of what has occurred in another place.
I do not propose to drag people away from the terraces, where they are enjoying themselves, or from the dining rooms, where they are happy enough to be eating, in order to establish that the score of your Lordships who are present in the Chamber will be swamped by those who come in anxiously inquiring what it is all about and which way they should go. In those circumstances, I ask your Lordships' leave to withdraw my Motion.
§ Motion, by leave, withdrawn.
§ Baroness Blatch
My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for the reason numbered 1A.
Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed for the reason numbered 1A.—(Baroness Blatch.)
§ On Question, Motion agreed to.