Criminal Justice Bill

HC Deb 16 July 1991 vol 195 cc307-24

Lords Amendments to Commons Amendments in lieu of a Lords Amendment and a Lords Amendment in lieu of one of their Amendments to which the Commons have disagreed, considered.

`.—(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if—

1. (a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and
2. (b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order.

(2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account—

1. (a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and
2. (b) the provisions of this section as compared with those of section 27(2) above and section 28(1) below.

(3) As soon as, in the case of a discretionary life prisoner—

1. (a) he has served the part of his sentence specified in the order ("the relevant part"); and
2. (b) the Board has directed his release under this section,

it shall be the duty of the Secretary of State, subject to subsection (7) below, to release him on licence.

(4) The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner unless—

1. (a) the Secretary of State has referred the prisoner's case to the Board; and
2. (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(5) A discretionary life prisoner may require the Secretary of State to refer his case to the Board any time—

1. (a) after he has served the relevant part of his sentence; and
2. (b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and
3. (c) where he is also serving a sentence of imprisonment for a term, after he has served one-half of that sentence;

and in this subsection "previous reference" means a reference under subsection (4) above or section 32(4) below made after the prisoner had served the relevant part of his sentence.

(6) In determining for the purpose of subsection (3) or (5) above whether a discretionary life prisoner has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952 ("the 1952 Act").

(7) The Secretary of State may defer a prisoner's release under this section for a period not exceeding six months if he is satisfied that exceptional circumstances exist which justify such a deferment in the public interest.

(8) In this Part "life prisoner" means a person serving one or more sentences of life imprisonment; but—

1. (a) a person serving two or more such sentences shall not be treated as a discretionary life prisoner for the purposes of this Part unless the requirements of subsection (1) above are satisfied as respects each of those sentences; and
2. (b) subsections (3) and (5) above shall not apply in relation to such a person until after he has served the relevant part of each of those sentences.'

with the following amendment:

The Lords agree to the Amendments after Clause 22 proposed by the Commons in lieu of the Amendment made by the Lords to insert a new Clause (Court's duty on passing sentence of life imprisonment), namely:

Insert the following new clause—Duty to release discretionary life prisoners—

No. 1, in line 2, leave out subsection (1) and insert ("(1) This Part applies to a person sentenced to—

1. (a) life imprisonment, whether or not for an offence the sentence for which is fixed by law; or
2. (b) during Her Majesty's pleasure or for life under section 53 of the 1933 Act; or
3. (c) custody for life under section 8 of the 1982 Act;

where the Court by which he was sentenced ordered that this section should apply to him as soon as he had served a part of his sentence specified in the Order.")

9.51 pm

The Minister of State, Home Office (Mrs. Angela Rumbold)

I beg to move, That this House doth disagree with the Lords in the said amendment.

Mr. Deputy Speaker (Sir Paul Dean)

With this it will be convenient to take Lords amendments Nos. 2 to 6, and the Government motions to disagree thereto; Lords amendment No. 7; and Lords amendments Nos. 8 to 18, and the Government motions to disagree thereto.

Mrs. Rumbold

The House will recall that when it first considered the Lords amendments to the Bill on 25 June, the Government tabled amendments on discretionary life sentence procedures in substitution for amendments which had been proposed by the Lords. These amendments were accepted by the House. While the other place has also accepted these amendments, it has sought to amend them further, in the ways shown on the amendment paper.

The main question raised in these Lords amendments is whether the new procedures that we have proposed for the review of discretionary life sentences should also extend to prisoners who receive the mandatory life sentence—that is, those who are convicted of murder. The House will recall that the new procedures for discretionary life sentences have been proposed in order to respond to the judgment of the European Court of Human Rights in the case of Wilson, Gunnell and Thynne.

Under the new procedures, when the judge passes a discretionary life sentence, he will announce in open court the period of time for which the prisoner should remain in custody to punish the offence. After that period has expired, the grounds for the prisoner's continued detention will be solely that the offender continues to pose a danger to the public. He will be entitled to have his case reviewed periodically by the Parole Board, acting under the special procedure, and the Home Secretary will be required to release the prisoner if the Parole Board decides that he is no longer a danger to the public.

Mandatory life sentence cases, however, raise quite different issues and the Government do not agree that it is appropriate to extend a similar procedure to these cases. In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so.

The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the state for the rest of his days. If necessary, he can be detained for life without the necessity for a subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention. In exercising his continued discretion in that respect, the Home Secretary must take account not just of the question of risk, but of how society as a whole would view the prisoner's release at that juncture. The Home Secretary takes account of the judicial recommendation, but the final decision is his.

It is within that framework that it has been possible for Ministers to adopt and apply policies to ensure that those who murder police officers will serve at least 20 years in prison.

Mr. David Trimble (Upper Bann)

May we have an assurance that it is still the policy of the Government that people who murder police officers shall serve at least 20 years in prison? If so, why is it that the average period served in prison by a person involved in the murder of police officers in Northern Ireland released within the last five years has been not 20 years but 13 and one third years? Does the Minister believe that it has been appropriate for only that amount of time to be served in prison in a situation where the danger is greater and where the need for detention is also greater than in the circumstances with which she has been dealing?

Mrs. Rumbold

As I said, in cases where police officers have been murdered, it is very much the Government's belief that the Home Secretary should have accountability and should be able to ensure that such people spend at least 20 years in prison. To transfer that responsibility to the Parole Board or to some other body would represent a fundamental departure from the principle that major decisions of public policy and the public interest should be taken by Ministers who are accountable to Parliament.

We do not agree that the ECHR judgment in the Wilson, Gunnell and Thynne case contains any implication that our procedures on mandatory cases should be changed. If anything, that judgment suggests the contrary, because it is based on the argument that if risk is the only factor in a prisoner's continued detention, that continued detention is lawful only for so long as the prisoner continues to be a risk, as determined by a court-like body.

Mr. Bowen Wells (Hertford and Stortford)

My right hon. Friend said that Ministers were accountable to Parliament for the decision about how long a life sentence should be served. Where does the Home Secretary announce his decision and how is that transparently made available to the House for debate?

Mrs. Rumbold

This is not a case where the Home Secretary announces his decision at a given time. When the judiciary passes sentence in court, that sentence is passed as a life sentence or as life imprisonment, which means that anyone who commits murder will for the rest of his or her days be subject to the judgment of the court that it is a life sentence. When that person comes out, or if they do not come out, is for the Home Secretary to decide when he takes into account, not just the usual elements, but the public interest element, and that element is the most important part of a rounded and larger decision.

Mr. Wells

How do we know that?

Mrs. Rumbold

It is not a question of how one knows that. It is a matter which Parliament has decided. That decision is that the Home Secretary shall be accountable, and if my hon. Friend permits me to develop the point further he may understand precisely the reasoning behind it.

As I said, it is not the same for mandatory sentences. I am reinforced in that view by the decision of the European Court on Human Rights in the case of Bamber, a mandatory life sentence prisoner. Like Wilson, Gunnell and Thynne, Bamber claimed that the lawfulness of his continued detention needed to be considered by a court-like body, but the commission decided that in that mandatory case the lawfulness of detention was incorporated at the outset in the original trial. We believe, therefore, that the court would accept that different considerations apply in mandatory cases and that such different considerations should be reflected in a different set of procedures.

Were Parliament ever to consider another method, it would require the most serious study of how it would be otherwise discharged. Parliament would have to be satisfied that its influence in these matters was not lost because the Home Secretary was no longer accountable to it for the decisions involved. That might involve far-reaching changes in the way in which sentencing for murder was conducted, perhaps including statutory guidelines on the length of time that those convicted for different kinds of murder should serve. Such an exercise would, of course—

It being Ten o'clock, MR. DEPUTY SPEAKER interrupted the proceedings.

Ordered, That, at this day's sitting, the Lords Amendments relating to the Criminal Justice Bill may be proceeded with, though opposed, until any hour.—[Mr. Kirkhope.]

Lords Amendments to Commons Amendments in lieu of a Lords Amendment and a Lords Amendment in lieu of one of their Amendments to which the Commons have disagreed, again considered.

Mrs. Rumbold

Such an exercise would, of course, be fraught with great difficulty. The Government are therefore firmly of the view that no substantive change in the arrangements for mandatory life sentences for prisoners should be made at present; nor could that be contemplated in the future without a great deal of further thought being given to its implications.

Mr. Roy Beggs (Antrim, East)

Does the Minister accept that it is an offence to those of us who are fully committed to and fully support capital punishment for murder to have to accept inconsistency in the United Kingdom? The murder of a policeman or member of the security forces in Great Britain seems to be treated in a different manner from the murder of a policeman or member of the security forces in Northern Ireland. When will the Government ensure that there is consistency of treatment of those guilty of such murders?

Mrs. Rumbold

During my time in Parliament we have had a number of votes on exactly those matters and, on each occasion, Parliament has voted not to reinstate capital punishment. I think that the hon. Gentleman knows that those debates are taken seriously and hon. Members consider, as a matter of conscience, where they stand on that issue. It is a matter for Parliament, and Parliament has decided, which is exactly the right way for us to conduct ourselves in this country.

Of the other Lords amendments, No. 2 would require the judge to state a term in every discretionary life sentence case, after which the prisoner would be entitled to be released if the Parole Board concluded that he was no longer a risk. The amendment does not, however, take account of the possibility that a discretionary life sentence might be imposed not because the offender is judged to be a danger to the public, but solely because the offence that the offender has committed is so serious as to justify a life sentence on that account. In other words, this would be a discretionary life sentence passed in accordance with clause 2(2)(a) of the Bill, rather than clause 2(2)(b).

A discretionary life sentence based purely on the seriousness of the offence would of course be very rare. The vast majority of discretionary life sentences are passed because there is an element of mental instability which means that the prisoner will be a risk to the public for a period which cannot be predicted in advance. But occasionally discretionary life sentences are passed not because the offender is perceived to be a risk to the public, but because of the nature of the offence which he has committed. In such cases, it would be inappropriate and illogical to require the court to state a term within the sentence which was appropriate to the seriousness of the offence. In those circumstances, the whole of the life sentence is there to punish the offence, not just part of it.

I should emphasise once again that it will, of course, be entirely at the discretion of the judge whether to pass a discretionary life sentence of this nature. I am sure that it would be most exceptional, but I do not consider that it would be appropriate to limit the judge's discretion in this matter in the way that the Lords amendment does.

Amendment No. 3 would permit the Parole Board to direct that the licence of a discretionary life sentence prisoner should be lifted after a certain period. That would mean that the offender involved was no longer subject to any form of supervision, and could not be recalled to prison if he showed signs of reverting to his former ways. It seems that the amendment makes nonsense of the whole concept of a life sentence. If a life sentence is passed, surely that must mean that the offender is subject to some restriction for the rest of his life, whether he is in custody or out on licence.

The offenders whom we are talking about in this context will have been given life sentences because there has been judged to be an element of mental instability in their behaviour. It seems to me to be quite wrong to get into the position where no action could be taken if, for example, someone had received a life sentence for sexual assaults on young children, then showed signs—even some years after his release on licence—of wanting to put himself in a position to commit similar offences again.

So long as the licence remains in force, steps can be taken, through tighter supervision, the attaching of new conditions of the licence or, ultimately, the offender's recall to prison, to ensure that potential victims are not exposed to danger from him. I am sure that the House will agree that it would be quite wrong to deny the public the protection that is conferred by the existence of the licence for the remainder of the offender's life.

Finally, I refer briefly to Lords amendment No. 7, which would remove the power that my right hon. Friend the Home Secretary would have to keep a discretionary life sentence prisoner in custody for up to six months after his release had been ordered by the Parole Board, if he considered it to be in the public interest to do so. That very limited power was sought to cater for the exceptional circumstance where the prisoner's release at a particular moment might, for example, exacerbate a public order situation or complicate the handling of some sensitive terrorist incident.

We believe that such a limited residual power for my right hon. Friend would be in accordance with the recent ECHR judgment, which referred to the possibility of the Executive's being able to detain the prisoner further on grounds of what it termed "expediency". However, having reflected on the views expressed on this matter in another place, my right hon. Friend has come to the conclusion that the kind of situation which this power is intended to cover could be handled without recourse to the exercise of that kind of reserve power. The Government are not, therefore inviting the House to disagree with Lords amendment No. 7.

The remaining Lords amendments are consequential on the ones to which I have referred.

Mr. Barry Sheerman (Huddersfield)

The Minister of State made a brilliant job of a very bad brief. The principal Lords amendments provide that, in all cases where a life sentence is imposed, the trial judge shall fix in open court the minimum period that a life sentence prisoner should serve, rather than make a private recommendation to the Home Secretary, as happens at present.

We have debated that subject at length. I was astounded that, even when the hon. Member for Hertford and Stortford (Mr. Wells) intervened in the speech of the Minister of State to ask about accountability, the Minister's response was unconvincing. The hon. Gentleman seemed to be trying to get her to say something more fully about the disparity between the judiciary and the Executive. When most of us learnt about the British constitution at school we thought that there was a healthy separation between the judiciary and the Executive, and that when the Executive nakedly interferes with the judiciary it can only be at the cost of justice.

The Lords amendments also provide that the Parole Board, operating under a special review procedure, shall take decisions on the release of life sentence prisoners and their recall on release, and not merely make a recommendation to the Home Secretary.

The Lords amendments are more detailed than that and I shall go through them briefly, one by one. Lords amendment No. 1 extends the Government's proposals to. prisoners serving mandatory life sentences. Lords amendment No. 2 removes the power of the courts to determine that the new release procedures for discretionary lifers should not apply to the case before them. Lords amendment No. 7 removes the power of the Home Secretary to defer release for up to six months.

We are delighted that the Government have seen the light on one of those amendments. I suppose that that is a 25 per cent. success rate. If the Lords keep up the process of attrition, even more enlightenment may come to the Government. However, I suspect that that may be our last small victory.

Lords amendment No. 3 gives the Parole Board the option, in discretionary life sentence cases, of ending the licence after a period of time, rather than its having to remain in force until the offender's death.

I do not intend to make any arguments about the case that we have won, so I shall concentrate on the three remaining amendments. We take extremely seriously Lords amendment No. 1, which extends the provisions for mandatory life sentences. The insight displayed in the House of Lords was a textbook example for this House. The clarity and perception of that insight were remarkable, as one would expect of Members of the other place, who often have more experience in matters judicial.

In accepting the need to change the operation of discretionary life sentences, the Government are attempting to comply—reluctantly, as we all know—with the decision taken last October by the European Court of Human Rights in the case of Thynne, Wilson and Gunnell. While the European Court's findings in that case were restricted to discretionary sentences, the procedures for those serving mandatory life sentences for murder are just as objectionable.

Whenever a convicted murderer is sentenced to life imprisonment, a simple but astounding process is set in train. Until I got involved in this Bill, I did not realise what happened and I feel that many hon. Members still do not realise that. The trial judge informs the Home Secretary, via the Lord Chief Justice, who adds his own views, of the minimum period of imprisonment that he considers necessary to meet the requirements of retribution and deterrence. Taking those views into account, a Home Office Minister—not the Home Secretary—lays down the minimum level of time that the prisoner will actually serve, otherwise known as the tariff. When that minimum time has lapsed, the decision on when to release the offender is based on an assessment of his or her risk to the public. That decision is made by the Home Secretary following a recommendation by the Parole Board.

Figures on the operation of the procedure, prepared by the Home Office for the House of Lords Select Committee, show that in most cases Home Office Ministers required prisoners to serve longer minimum periods than their trial judges considered appropriate. Between 1 April and 30 September 1988, minimum periods were set for 106 persons sentenced to life imprisonment for murder. In 63 of those cases, Home Office Ministers laid down longer minimum periods than the trial judge had recommended. In 34 cases, Ministers accepted the trial judges' recommendations, and in nine cases they set lower minimum periods.

More recently published figures show that, of the 274 mandatory life sentences considered in 1990, Ministers set a longer period than that recommended by the trial judge in 90 cases and a shorter period in 43 cases. We believe that it is wrong in principle for Ministers to lengthen sentences by executive influence and decree. Unlike the judge, the Minister makes his decision without having heard the evidence in court; in effect, it is a sentencing decision taken behind closed doors and against which the prisoner cannot appeal.

We feel that it is contrary to justice for the Executive to interfere in the judicial process in that way. Some Conservative Members demand longer sentences—often without thinking through the arguments—but I ask them to consider the problem. We are not arguing for longer or shorter sentences. We are arguing on the principle that it is wrong for the Executive to become involved.

Members on one side of the House or the other might be extremely angry with one Home Secretary for consistently reducing the length of sentence or consider that another was a good Home Secretary because he consistently increased the length of sentences. The problem arises because the Minister involves himself or herself in the judicial process in an arbitrary manner—arbitrary because how can a member of the Executive make such a decision without any experience of the court trial, without having heard the evidence, and without having been able to make a fair appraisal of what went on?

10.15 pm

Similarly, decisions for or against the eventual release of life sentence prisoners and on their recall from licence can result in further lengthy periods of imprisonment. Such decisions are also taken by executive process whereby the Parole Board makes recommendations to Ministers.

The Lords amendments, which the Opposition believe are pure, good, common sense, would ensure that decisions on the release and the recall of prisoners serving life sentence were made by a process which, unlike the current system, would satisfy the requirements of natural justice.

It is difficult to see any logic in retaining the Home Secretary's veto over the release of prisoners convicted of, say, domestic murder in circumstances of extreme stress while relinquishing it in cases where a long sentence had been imposed for a calculated series of rapes or following a manslaughter verdict on an unpredictable and unstable mentally disordered killer. Where is the logic in that?

The Government have argued that Members of Parliament have been willing to support the continued abolition of capital punishment only because of the assurance that the Home Secretary will retain control over the release of prisoners convicted of murder. Opposition Members consider that a highly dubious argument. The case for the reform of the life sentences on the lines proposed by the Lords Select Committee has widespread support from many people and groups within the criminal justice system who are also opposed to the abolition of capital punishment as well as from those who support it. If life sentence procedures were changed, most Members of Parliament would vote on capital punishment in precisely the way that they do at the moment.

Although the case of Thynne applied only to discretionary life sentences, it is widely felt that when the case of mandatory life sentences comes before the European Court of Human Rights it will apply the same principle that is established for discretionary life sentences. We understand that such a case will come before the European Court shortly. Once again, the British Government will be found lacking.

Lords amendment No. 2 involves removing the power of the court to determine that the release procedure should not apply to the case before it. In its wisdom, the other place saw that under the Government's proposals the trial judge had the power to determine that the new release proposals would not take effect in relation to the case before him by not specifying a term after which release can be considered by the Parole Board.

In another place, it was suggested that that power was needed for the exceptional case where the crime was so serious that the trial judge felt that the offence warranted life imprisonment irrespective of the risk to the public. However, in the Bill that power is very wide. I hope that the Minister will take this point. In effect, the court is given the power to opt out of the new release procedures and the circumstances in which it should exercise that power should have been clearly defined in statute.

I am not trying to have my cake and eat it too—that is the other side of the argument that I was putting earlier. It is bad when the Executive interferes with the judicial process. It is also bad when the legislature does not make its legislation clear enough to the judiciary. We want the Bill to make it clear to. the judiciary that only in exceptional cases will the judge have that power. As it stands, we believe that it will be taken as a wide power, in which case the legislation would not achieve its intended objective.

I shall not need to deliver that part of my speech dealing with amendment No. 2, in view of the Government's change of mind, but I will delay the House a little longer to comment on Lords amendment No. 3 which in the case of discretionary life sentences gives the Parole Board the option of ending the licence after a period of time.

The Thynne judgment made it clear that when it comes to a discretionary life prisoner, a court or the Parole Board must have the power to bring the licence to an end. That argument was well made by hon. Members on both sides of the House in our debate on 25 June. The debate during the long progress of the Bill has not been party political. Right hon. and hon. Members in all parts of the House have agreed or disagreed with one another—it has been that kind of Bill. The argument for providing such a power is accepted not only by Members on both sides of this House but by the majority of their Lordships.

In the debate on 25 June, the Minister of State said that the Government would make statutory regulations specifying that the Parole Board should follow a judicial process in such cases. Can she say when we shall have sight of those regulations? It seems odd that we are reaching the end of the Bill's passage through the House without knowing the content of the regulations that are to flow from it. It is impossible to judge whether or not they are acceptable without having sight of them. We hope that they will be available when the Bill returns to another place.

We feel strongly about the central, constitutional arguments that we have made concerning the nature of the relationship between the judiciary and the Executive, and between the legislature and the judiciary. We have taken a consistent line on both. We are unhappy with the Government's reaction to their Lordships' amendments on that matter of principle, and that is why we shall eventually divide the House on the amendments.

Mr. John Greenway (Ryedale)

I sense that the mood of the House is not to delay our consideration of the Lords amendments.

When moving the amendments before us, Lord Nathan argued that, although the European Court judgment related only to discretionary life sentences, in time that court would reach a similar judgment in respect of mandatory sentences. I do not believe that that is the inevitable conclusion to be drawn.

In the Thynne case, the European Court drew a distinction between mandatory and discretionary life sentences in respect of a mandatory sentence for murder involving a premeditated killing. Thynne was not in that category. That is entirely in keeping with our criminal law, which distinguishes between murder, which involves the intentional killing of another, and manslaughter, where the intention is less clear. The premeditated nature of murder singles it out from all other crimes, and provides the justification for a mandatory life sentence, which reflects the heinous nature of the offence alone, without any assessment of the future risk to the public.

Their Lordships argued that some murders are less serious than sadistic or brutal crimes that stop short of murder. Even if that proposition is entirely valid, I cannot see how that can justify the watering down of the mandatory life sentence that the Lords amendments would bring about. In my judgment, the converse is true, and justifies the discretionary life sentence. It also justifies the provision for the trial judge to announce in open court a term within a discretionary life sentence that reflects the seriousness of the offence, and for the prisoner to continue to be detained if he would pose a risk to the public on his release.

Alternatively—my right hon. Friend touched on this —a judge, when passing a discretionary sentence, might choose to reflect the seriousness of the offence by not setting a term. The law should do what the Bill did before it went to the other place, and provide the opportunity for a discretionary sentence to be placed on a par with a mandatory sentence in response to the seriousness of the crime in question. Their Lordships seemed to be suggesting the opposite. The original wording reflected more accurately public anxiety about the rise in violent crime, and public opinion about the most appropriate sentence for murder.

Mr. Gerald Bermingham (St. Helens, South)

Will the hon. Gentleman give way?

Mr. Greenway

No, I will not. I want to be brief, and we have now discussed this matter on four occasions.

Mr. Bermingham

On a point of order, Mr. Deputy Speaker. If the hon. Gentleman is talking about mandatory sentences, that must be outside the terms of the Lords amendment. The Lords failed to reach a conclusion on mandatory sentences; we are now discussing discretionary sentences.

Mr. Deputy Speaker

That is a matter for debate, not a point of order. I remind the House, however, that we are now dealing with a group of Lords amendments.

Mr. Greenway

The hon. Member for St. Helens, South (Mr. Bermingham), whose opinions I normally respect, has shown appalling ignorance of the issues, which are of considerable importance to the British people.

Now is not the time to rehearse again arguments about whether sentences have a deterrent effect. Let me say, however, that the increase in the number of murders and in the use of firearms in crime—and the total disregard for human life displayed by the criminal fraternity—demand that, at the very least, we adopt a cautious approach to changes in sentencing. The other place has now accepted that this is no time to abandon the mandatory life sentence. Nor is it the time to extend the Bill's new procedures in regard to discretionary sentences to mandatory sentences. It is on that point that the House must disagree with the Lords.

Mr. Trimble

I, too, will try to be brief—if only because I was in the House until 3.30 this morning, and have no wish to repeat the experience.

The Government are drawing a distinction between mandatory life sentences and what they call discretionary life sentences. They are establishing a procedure for discretionary sentences that they believe will be sufficiently judicial to satisfy the requirements of the European convention, while retaining the existing system for mandatory sentences—that is, leaving matters entirely to their own discretion, which will be exercised in the manner described by the hon. Member for Huddersfield (Mr. Sheerman). The Lords would have extended to mandatory life sentences the quasi-judicial procedure that the Government propose to confine to discretionary life sentences.

I support the view taken in the other place. I do not approve of leaving the matter to the Government's discretion. That would be bad, partly for the constitutional reasons mentioned by the hon. Member for Huddersfield —reasons of principle. It is also bad because it can lead to policy changes that produce alarming results.

10.30 pm

We have had confirmed this evening the Government's present policy for part of the United Kingdom, which is that people who murder police officers should serve 20 years. That may have been the Government's policy for another part of the United Kingdom during the first few years of the previous decade. Between 1981 and 1984, no person sentenced to life imprisonment for the murder of members of the security forces was released on licence in Northern Ireland. For some reason, which we can explore at another time, there was a change of policy in 1985. From 1985 to 26 June 1991, 51 persons convicted of murder of members of the security forces—policemen, prison officers, regular soldiers and members of the Ulster Defence Regiment—were released, and not one of them had served 20 years. The longest sentence served was 17 years and that was served by only one person. The shortest sentence served was seven years and that was served by three people. The average length of sentences is interesting. I mentioned one such average to the Minister during an intervention, but I did not receive a reply. I hope that the right hon. Lady will reply during the wind-up.

For persons released between 1985 and 1991, the average term served by those sentenced to life imprisonment for murder of members of the Ulster Defence Regiment was 13.55 years. For persons sentenced to life imprisonment for murder of members of the Royal Ulster Constabulary, the average period served was 13⅓ years. In the same period, for those sentenced to life imprisonment for murder of members of the Regular Army, the average sentence served was 12 years. That demonstrates the exercise of Government policy.

We have been told about the Government's policy for this part of the United Kingdom and I have demonstrated what a change of Government policy produced elsewhere. It is objectionable that we have a system that can accommodate such changes of policy and that such changes can occur surreptitiously, without the necessary public debate. For that reason, together with the reasons of general principle adduced by the hon. Member for Huddersfield, it is objectionable for such decisions to be made by the Executive. There should be a form of judicial procedure—one could argue about its exact nature—that is more open and more accountable and not subject to the whims of changing policy. That would be much more desirable.

I should have liked an opportunity to expand on this. At an earlier stage of the Bill I should have liked to deal with the concept of mandatory life sentences, which I think is objectionable. It would have been better if the Government had accepted the earlier Lords amendments to dispense with mandatory life sentences. Unfortunately, due to having to attend somewhat abortive discussions some distance away from this building, I was unable to participate in such a debate. We want to register our support for the Lords amendments and the hope that, at some time in the near future, we will see Government and ministerial discretion over periods served in prison replaced by a more open, logical and accountable system that more closely reflects the gravity of the offences.

Mr. Ivan Lawrence (Burton)

I do not blame the House of Lords, but these amendments are an attempt to get by the back door what they have conceded should not be given by the front door—the abolition of the mandatory life sentence and the introduction of an element of discretion by someone other than the Home Secretary. That cannot possibly be acceptable to the House, and we should reject it if there are no better arguments.

Only one argument has been suggested. It has been said that this will result in an appeal to the European Court and the inevitable rejection of what we are deciding today. I doubt very much whether that confident assertion made by Opposition spokesmen here and by the movers of the amendments in another place would be upheld. In the case of Thynne in the European Court of Human Rights, a clear distinction was drawn between the mandatory and the discretionary life sentence. The court said: the principles underlying such sentences [i.e. discretionary sentences], unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release. It could not be clearer that making that distinction is what the court is doing. Therefore, I believe that the confident assertion made by the Opposition and their Lordships is invalid and should not weigh with us. Accordingly, there is no reason for us to accept the Lords amendments on this matter.

The amendment dealing with the removal of the court's right to make a decision about life sentences is puzzling, because it is contrary to the argument advanced by their Lordships and advanced relentlessly by the Opposition during our previous debate on the subject—that the judiciary should have the final say. Now they do not want the judiciary to have the final decision in the matter and are therefore standing on their collective head. That shows the total insubstantiality of the Lords amendments, and the Government are right to reject them.

Lord Natham said that accepting the amendments would enable the matter to be considered in this place. We have considered them, and we should reject them.

Mr. Bermingham

What I have—

Mr. Sheerman

rose—

Mr. Deputy Speaker (Mr. Harold Walker)

Order. The hon. Member for St. Helens, South (Mr. Bermingham) has not started speaking yet, so how can the hon. Gentleman intervene?

Mr. Bermingham

I was, as ever, being courteous to my hon. Friend.

What I have just heard from the hon. and learned Member for Burton (Mr. Lawrence) amazes me. He has not a little knowledge of the courts and of how the judiciary thinks. He must have heard—as I have over the years—what the judiciary thinks about mandatory sentences: it does not like them. It does not like the idea that it can send a recommendation to the Home Secretary in respect of a murder case that the sentence should be six, eight or 10 years only to find that a junior Minister at the Home Office who has absolutely no knowledge of the case—

Mr. Sheerman

He might be a geography lecturer.

Mr. Bermingham

As my hon. Friend says, he might be a geography lecturer or a part-time car mechanic, but even if Mr. Justice So-and-So believes that the sentence should be 10 years, he can say that it should be 18 years.

I am a tired old lawyer who must declare an interest as a barrister. I notice that the once-striker-out of judges' comments—the Minister of State, or goodness knows what he is called nowadays since he has been promoted —once crossed a line through—and I declare yet another interest—a sentence passed on some constituents of mine. He increased the sentence passed by the judge but knew nothing about the case. That worries me, and when the hon. and learned Member for Burton says so glibly, "Never mind the European Court or anything else", we must remember that we are talking about people.

I remember a comment made by the common serjeant, the senior judge at the central criminal court. It was made to a jury not so long ago. It was something like, "Members of the jury, you have found the man guilty. I will write a letter to the Home Secretary recommending the sentence. What I say will in all probability be ignored." That is a tragedy. As the common serjeant rightly said—and I was there when it was said—"What I know about this case, what members of the Bar who were present in the court know about this case and what police officers know about this case will never be known by the civil servants will advise the Minister in years to come. Those civil servants will know nothing about the case." That is secret justice, and it is anathema.

When the judiciary said in the House of Lords that mandatory sentences were wrong, they were right. The Government, for reasons which must be known to their heart and which are political because they seek to strive in the face of adversity to win an election, think that the idea of being punitive is in their political interests. They destroy justice.

As a practising lawyer, I say that there are those of us who believe that justice should be above political thinking. We say gently, "Wait a moment. We are talking about real human beings and about the sentencing of people who should serve a sentence for the crime that they have committed. We are talking about the courts of tomorrow."

I look at my own Front-Bench colleagues and I say to them as gently as I say to the Opposition—[HON. MEMBERS: "You are the Opposition."] I say to the Opposition of tomorrow that, when the Lords made a series of decisions, they were talking from experience. If we fly in the face of experience in the interests of expediency, the real sufferers are human beings—the people outside.

I ask the House, please, to accept the Lords amendments. They do not go far enough, but at least they will go some way down the road to reaching justice. Justice is precious and we must not sacrifice it on the altar of political expediency for any part. I ask the Government to listen to the other place because it has something to say.

Dr. John G. Blackburn (Dudley, West)

My intervention will certainly be short, but I pray that it may be saturated with intelligence. I say that because I oppose the Lords amendment. I had the opportunity of speaking on the Bill on Second Reading and I made clear my views on the subject. I have also had the opportunity as a constituency Member, like all other Members, of mourning the terrible deaths that have been caused in my constituency by murder.

One thing has been forgotten in this short debate. If I do nothing else, I want to speak about the sanctitity of human life. Every contribution this evening has concerned justice—which I applaud, and of which I am a disciple —towards those who are guilty of the offence. However, I take the view that it is about time that we discussed in the House the sanctity of human life and the question of protecting human life.

I hold the view that the Lords amendments do nothing that will in any way enhance the sanctity of human life, and I oppose them. I oppose them for another reason, which I hope the House will find acceptable.

We have spoken about the judiciary and the Executive. I want to speak about the practical experience of murder and of people being brought to justice before the courts. What mandate do I have to speak on that? Probably like no other hon. Member, I had the task of serving as a police officer on five murder inquiries. In addition, I have had the opportunity—and I found no pleasure in it—of arresting somebody for the capital offence of murder. I hold the view that this House should consider the sanctity of human life and that, saturated with common sense and justice, we should oppose the Lords amendments.

10.45 pm

Mr. Sheerman

With the leave of the House, Mr. Deputy Speaker, I do not wish to prolong the debate, but having served for so many months on the Bill I thought that a last word—or at least, a penultimate word—might be appropriate.

We have made the argument clearly. We agree with all four of the Lords amendments, and we are glad to see that the Government have accepted one of them. We have done so not because we believe, as the hon. and learned Member for Burton (Mr. Lawrence) believes, that this is a way of getting our own way by the back door, but because, as usual, the House of Lords has confronted the issues of principle head on and brought them back to us. It is the Lords' job in our constitution to do that, and I applaud the way in which they have done it.

Having said that, we propose to divide the House because we believe that it is wrong for the Executive to interfere with the judiciary in this way.

Mrs. Rumbold

With the leave of the House, Mr. Deputy Speaker, like the hon. Member for Huddersfield (Mr. Sheerman), I shall be brief.

I am grateful to the House for the views that we have heard. I share the view of my hon. Friend the Member for Ryedale (Mr. Greenway) and my hon. and learned Friend the Member for Burton (Mr. Lawrence) that the Wilson, Gunnell and Thynne decisions in the European Court of Human Rights did not confirm anything other than that we were talking about discretionary cases. Quite clearly, the decision on discretionary life sentences is a matter for the Parole Board to consider from the point of view of risk only, whereas in relation to mandatory life sentences, which are life sentences for murder, the court gives a whole life sentence, the discretion lies with the Home Secretary and the decision is to be considered on much wider issues than simply those of risk.

In answer to the query raised by the hon. Member for Huddersfield about the rules for setting up the Parole Board, I should explain that those rules will be drawn up in consultation with the board and will fully meet the ECHR requirements.

I will pass the comments made by the hon. Member for Upper Bann (Mr. Trimble) to my right hon. Friend the Secretary of State for Northern Ireland, as the hon. Gentleman is clearly worried about certain disparities between the two countries.

I ask the House to disagree with the Lords in their amendment, but to accept Lords amendment No. 7.

Question put, That this House doth disagree with the Lords in the said amendment:—

The House divided: Ayes 153, Noes 52.

Division No. 215]	[10.48 pm
AYES
Ashby, David	Hargreaves, Ken (Hyndburn)
Atkins, Robert	Harris, David
Baker, Nicholas (Dorset N)	Haselhurst, Alan
Bellingham, Henry	Hawkins, Christopher
Blackburn, Dr John G.	Hayes, Jerry
Boscawen, Hon Robert	Hill, James
Bowden, Gerald (Dulwich)	Hind, Kenneth
Bright, Graham	Hordern, Sir Peter
Brown, Michael (Brigg & Cl't's)	Howarth, G. (Cannock & B'wd)
Burt, Alistair	Hughes, Robert G. (Harrow W)
Carrington, Matthew	Hunt, Rt Hon David
Cash, William	Irvine, Michael
Chapman, Sydney	Jack, Michael
Chope, Christopher	Jackson, Robert
Clark, Rt Hon Sir William	Janman, Tim
Coombs, Anthony (Wyre F'rest)	Jessel, Toby
Coombs, Simon (Swindon)	Jones, Gwilym (Cardiff N)
Cope, Rt Hon Sir John	Jones, Robert B (Herts W)
Cran, James	Kilfedder, James
Currie, Mrs Edwtna	King, Roger (B'ham N'thfield)
Davies, Q. (Stamf'd & Spald'g)	Kirkhope, Timothy
Davis, David (Boothferry)	Knapman, Roger
Devlin, Tim	Knight, Greg (Derby North)
Douglas-Hamilton, Lord James	Knight, Dame Jill (Edgbaston)
Dover, Den	Knowles, Michael
Durant, Sir Anthony	Latham, Michael
Emery, Sir Peter	Lawrence, Ivan
Favell, Tony	Lennox-Boyd, Hon Mark
Fenner, Dame Peggy	Lester, Jim (Broxtowe)
Field, Barry (Isle of Wight)	Lightbown, David
Fishburn, John Dudley	Lilley, Rt Hon Peter
Fookes, Dame Janet	Lord, Michael
Forman, Nigel	Lyell, Rt Hon Sir Nicholas
Forth, Eric	Maclean, David
Freeman, Roger	McLoughlin, Patrick
French, Douglas	Mans, Keith
Fry, Peter	Marshall, Sir Michael (Arundel)
Gale, Roger	Martin, David (Portsmouth S)
Gill, Christopher	Mawhinney, Dr Brian
Goodlad, Alastair	Mayhew, Rt Hon Sir Patrick
Gorst, John	Mills, Iain
Greenway, John (Ryedale)	Miscampbell, Norman
Gregory, Conal	Mitchell, Andrew (Gedling)
Griffiths, Peter (Portsmouth N)	Moate, Roger
Grist, Ian	Morrison, Sir Charles
Ground, Patrick	Moss, Malcolm
Hague, William	Neubert, Sir Michael
Hamilton, Neil (Tatton)	Newton, Rt Hon Tony
Hargreaves, A. (B'ham H'll Gr')	Nicholls, Patrick

Nicholson, David (Taunton)	Summerson, Hugo
Norris, Steve	Taylor, Ian (Esher)
Onslow, Rt Hon Cranley	Taylor, John M (Solihull)
Oppenheim, Phillip	Taylor, Sir Teddy
Page, Richard	Temple-Morris, Peter
Paice, James	Thompson, D. (Calder Valley)
Patnick, Irvine	Thompson, Patrick (Norwich N)
Patten, Rt Hon John	Thorne, Neil
Pattie, Rt Hon Sir Geoffrey	Thurnham, Peter
Peacock, Mrs Elizabeth	Trippier, David
Porter, David (Waveney)	Trotter, Neville
Powell, William (Corby)	Twinn, Dr Ian
Raffan, Keith	Vaughan, Sir Gerard
Raison, Rt Hon Sir Timothy	Walker, Bill (T'side North)
Rowe, Andrew	Waller, Gary
Rumbold, Rt Hon Mrs Angela	Wardle, Charles (Bexhill)
Sackville, Hon Tom	Watts, John
Shaw, David (Dover)	Wells, Bowen
Shaw, Sir Giles (Pudsey)	Wheeler, Sir John
Shepherd, Colin (Hereford)	Widdecombe, Ann
Shersby, Michael	Wiggin, Jerry
Sims, Roger	Wilkinson, John
Smith, Sir Dudley (Warwick)	Wilshire, David
Smith, Tim (Beaconsfield)	Wolfson, Mark
Speller, Tony	Yeo, Tim
Spicer, Michael (S Worcs)
Stern, Michael	Tellers for the Ayes:
Stevens, Lewis	Mr. Tim Boswell and Mr. Timothy Wood.
Stewart, Allan (Eastwood)
Stewart, Andy (Sherwood)

NOES
Alton, David	Hood, Jimmy
Anderson, Donald	Howells, Geraint
Barnes, Harry (Derbyshire NE)	Hughes, John (Coventry NE)
Beggs, Roy	Hughes, Simon (Southwark)
Bermingham, Gerald	Illsley, Eric
Campbell, Menzies (Fife NE)	Jones, Barry (Alyn & Deeside)
Carr, Michael	Kilfoyle, Peter
Cox, Tom	Loyden, Eddie
Cryer, Bob	McAvoy, Thomas
Cunliffe, Lawrence	McCartney, Ian
Darling, Alistair	McMaster, Gordon
Dixon, Don	McWilliam, John
Fearn, Ronald	Mahon, Mrs Alice
Flynn, Paul	Meale, Alan
Forsythe, Clifford (Antrim S)	Michael, Alun
Foster, Derek	Michie, Bill (Sheffield Heeley)
Fraser, John	Morley, Elliot
Golding, Mrs Llin	Nellist, Dave
Gordon, Mildred	Parry, Robert
Graham, Thomas	Pike, Peter L.
Griffiths, Nigel (Edinburgh S)	Redmond, Martin

Ross, William (Londonderry E)	Welsh, Michael (Doncaster)
Salmond, Alex	Wise, Mrs Audrey
Sheerman, Barry	Wray, jimmy
Skinner, Dennis
Steel, Rt Hon Sir David	Tellers for the Noes:
Taylor, Mrs Ann (Dewsbury)	Mr. Allen McKay and Mr. Frank Haynes
Trimble, David

Question accordingly agreed to.

Lords amendment disagreed to.

Lords amendments Nos. 2 to 6 disagreed to.

Lords amendment No. 7 agreed to.

Lords amendments Nos. 8 to 18 disagreed to.

Committee appointed to draw up reasons to be assigned to the Lords for disagreeing to their amendments Nos. 1 to 6 and 8 to 18 to the Bill: Mr. Carrington, Mrs. Golding, Mr. Greg Knight, Mr. John Patten and Mr. Barry Sheerman; Three to the be the quorum.—[Mr. Sackville.]

To withdraw immediately.

Reasons for disagreeing to Lords amendments Nos. 1 to 6 and 8 to 18 reported, and agreed to; to be communicated to the Lords.