THE COMMISSION: HER MAJESTY'S PREROGATIVE OF MERCY (Hansard, 26 April 1995)

§ Mr. Michael
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Mr. Michael Morris)
With this, it will be convenient to discuss also Government amendment No. 31.

§ Mr. Michael
The new clause and the amendment deal with the exercise of the royal prerogative of mercy in respect of cases that might come to the commission for consideration. The problem with the Bill as drafted is that the reference in clause 15 is extremely limited. Indeed, the notes on clauses provided by the Government make it clear just how limited it is. They state that the clause is intended to enable the Secretary of State to take account of the Commission's consideration of a matter where the Secretary of State has been petitioned to recommend exercise of the Royal Prerogative of Mercy in relation to a conviction … In this way the role of the Commission in considering alleged wrongful conviction cases should not be undermined by petitions to the Secretary of State. Therefore, the intention clearly is to ensure that there is no alternative to the commission for dealing with such matters.
There may be circumstances in which the exercise of the royal prerogative of mercy is the straightforward and simple way of dealing fairly with a specific case. That is acknowledged by the Bill itself, which enables the Home Secretary to ask the commission to consider whether it would be appropriate to exercise the royal prerogative. That is helpful. The amendment to require the commission to state its reasons for any such recommendation is also sensible. But what is the situation when the commission is considering a straightforward claim of miscarriage? It is not so clear.
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As the Bill stands, the commission can consider reference to the Court of Appeal but not decide on the alternative course of recommending the exercise of the royal prerogative. Surely that anomaly could be circumvented by common sense—for example, the commission telling the applicant, "Why don't you appeal to the Home Secretary, and then he can ask us to look at it and make a recommendation to him?" Or it could be left to cause bureaucratic delay and frustration, albeit in a small number of cases.
Surely it is better to accept new clause 6, which puts clearly on the face of the Bill the power for the commission, in appropriate cases, to say, "We have had a look at this case. It does not seem to be one in which 894 reference to the Court of Appeal is appropriate, but the royal prerogative of mercy does seem appropriate. Let us simply make that recommendation to the Home Secretary." That will provide a sensible safety valve. How often it is used would depend on the assessment that is made by the commission of the cases it considers—cases can reach it through a wide range of means—but it would mean that common sense and simplicity is introduced in this part of the Bill.
Ministers have at various times pointed out that the Law Commission is preparing a report on hearsay evidence, which is likely to contain recommendations for reform. Pending that, it proposes that cases that rest on hearsay should be dealt with by the use of the royal prerogative of mercy as an alternative to the Court of Appeal. The exercise of the prerogative as an alternative is something that Ministers accept. It is a fairly simple suggestion.
The new clause would therefore give the commission the power, when appropriate, to refer cases that it has investigated to the Secretary of State rather than to the Court of Appeal. That would include cases that rest heavily on evidence that is inadmissible in court, as well as findings of exceptional compassionate circumstances that might justify the use of the prerogative on those grounds alone.
As the Bill stands, the commission would be entirely within the requirements of the Act—as it will be by the time it is enacted—to say, "It is not a matter for us." It seems silly, when the commission will have looked at the circumstances in a variety of cases, not to say simply and explicitly on the face of the Bill that the commission will have the power to make reference to the Secretary of State, with a recommendation where appropriate. If the Secretary of State considers that the case raises matters that should properly be dealt with by the court, he will be able to return the case to the commission, with his views.
The new clause simplifies matters and would avoid the creation of an anomaly. For those reasons, I commend it to the House.

§ The Party Under-Secretary of State for the Home Department (Mr. Nicholas Baker)
I certainly understand the concern that has prompted the new clause tabled by the hon. Member for Cardiff, South and Penarth (Mr. Michael). We were all set to offer to consider the matter further when it appeared on the list in Committee. In the event, it was not selected, and no opportunity arose for the Government to express their views and intentions in that area.
As hon. Members know, the Government believe that the proper place for wrongful convictions or sentences to be corrected is in the courts; hence the provisions of the Bill that provide for the commission to investigate and, where appropriate, refer to the courts possible miscarriages of justice. But in working out those provisions, we looked closely at whether the royal prerogative of mercy should continue to be available.
We came to the conclusion, as did the royal commission, that, as there may be cases, albeit exceptionally, of the kind to which the hon. Gentleman referred—for example, where there is compelling new material that is inadmissible—the royal prerogative should continue to be available.
895 The Government have always intended that, where the commission finds such a case, it should be able to refer it to the Secretary of State for him to consider whether to recommend the exercise of the royal prerogative. We initially took the view that it was open to the commission to do that under the Bill as drafted, but, on reflection and further to our discussions in Committee, we believe that we can make that rather clearer on the face of the Bill. We believe that the wording of amendment No. 31 is clearer, and preferable to new clause 6. I hope that, in the light of what I have said, the hon. Gentleman will not press his new clause, but will accept amendment No. 31 in due course.

§ Mr. Michael
With the leave of the House, I should like to probe a little further the difference between the result of the new clause and that of amendment No. 31.
New clause 6 makes it absolutely explicit that, in consideration of any matter before it, the commission could conclude that it wished to make a recommendation to the Home Secretary.
Amendment No. 31, to which the Minister referred, is not quite so clear, because it inserts, at the end of line 38, the words
'(2) Where in any case the Commission are of the opinion that the Secretary of State should consider whether to recommend the exercise of Her Majesty's prerogative of mercy in relation to the case they shall give him the reasons for their opinion.'. I am open to correction by the Minister, but it seems to me that the amendment therefore refers to the type of case that is dealt with in clause 15. In other words, it gives the commission the discretion to recommend the exercise of the royal prerogative in cases where the Home Secretary has made reference to the commission. New clause 6 goes slightly wider than that, and I believe that it fits what the Minister has suggested. If I understood him correctly, there is no difference between us on the outcome that would be achieved as a result of this short debate.
Am I correct in saying that amendment No. 31 would extend the powers of the commission only in relation to cases that have been referred to the commission by the Home Secretary, not the generality of the commission's work? I see an urgent necessity to speak slowly for a moment or two, but that seems to be the way in which the amendment is phrased. It is in effect an addendum to clause 15 as it currently stands, and therefore can apply only to cases that have been referred to the commission by the Home Secretary, which are dealt with by clause 15. I should be grateful if the Minister would clarify that position now that he is in a position to do so.

§ Mr. Baker
I can relieve the hon. Gentleman of his agony. Amendment No. 31 does say, "Where in any case", and subsection (2), as it will be, will be quite separate from subsection (1). I appreciate why he asked the question, but I can confirm that his worries are groundless.

§ Mr. Michael
I am grateful to the Minister for that reply. If that is so, and the amendment means that the extended power of the commission applies not only to cases referred to the commission by the Home Secretary but to any case that the commission considers, I am happy indeed to withdraw the new clause and to support 896 amendment No. 31. I am grateful to the Minister for responding constructively in this short debate. I beg to ask leave to withdraw the motion.