§ 3.8 p.m.
§ Read a third time.
§ Clause 9 [Order for return to requesting state]:
Lord Mishcon moved Amendment No. 1:
Page 9, line 46, at end insert (", and shall include the facts and the law relied upon as justification for making such an order.").
§ The noble Lord said: My Lords, the House will remember the debates that took place on the provisions which were necessary under this new Bill for the obtaining of an extradition order. They relate to the removal of one of our subjects or the subject of another country to a foreign land in order that he might he tried on a criminal charge.
§ Your Lordships will also remember that after debates in this House at the previous stages of Committee and Report the prima facie rule was removed. The protection that was given to an accused who was required by a foreign state to be taken to another country was the requirement that a court of our land should be satisfied that a prima facie case existed against him. That protection is no longer to be part of our law if the Bill goes through in its present amended form.
§ At the moment the procedure under the Bill is covered by Clause 9, which provides in subsection (1) that the Secretary of State—it is now an administrative matter—makes an order. Before he makes that order subsection (2) is brought into play. Under subsection (2) the Secretary of State is required to give a notice in writing that he is contemplating making such an order.
§ Then one comes to subsection (3), which says that the person who is the subject matter of these proceedings is entitled to make representations to the Secretary of State. The last subsection, which is subsection (4), says that a notice shall explain in ordinary language the right confirmed by the subsection to which I have just referred; namely, the right to make submissions.
§ There is a gap and the gap is that this notice in writing—and I again remind your Lordships that there is now no question of the prima facie rule existing—can, as the Bill at present stands, be a bland notice in writing merely informing the person concerned that the Secretary of State is considering making an extradition order and that if he wishes to (and this must be in the plain ordinary language of our land) he can make representations.
When the amendment was dealt with on Report in order that the clause should be in its present form the noble and learned Lord, Lord Ackner, raised a most important point, as one would expect whenever he rises in your Lordships' House. I am delighted to see that the noble and learned Lord is in his seat. He would be able to read these words in a much more resounding and clear voice than mine. The noble and learned Lord said:
I raise one matter for clarification. Should there not be spelt out, either in the amendment or elsewhere, a specific obligation on the Secretary of State to provide not only notice that he is contemplating making an order but the facts and the law relied on for the making of that order? There has been removed, by virtue of the previous amendments, the phrase: 'facts upon which and the law under' and in its place we have only the word 'offence'. Unless there is a specific obligation spelt out, all that the defendant (if I may call him that) will get is a notice of the intention of the Secretary of State which will no doubt fill him with gloom but no wisdom. I suggest that there ought to be a specific provision, either continuing on from subsection (1A) in the amendment or elsewhere, that he is to be given particulars of the facts and the foreign law relied upon in support of the application."—[Official Report, 17/11/87; col. 131.]
Your Lordships will note that in the amendment we have followed the precise wording suggested by the
noble and learned Lord, Lord Ackner. With that meritorious and learned support, I beg to move the amendment.
§ Lord Harmar-Nicholls
My Lords, my objection to the noble Lord's excellent presentation of his case is the way in which he downgraded the improvement that this House was able to bring about. He downgraded the power that is now given to the subject of possible extradition to submit his case to the person who has to make the final decision as to whether or not it should be carried out. He suggested that it is a "bland statement", but there is nothing bland about the fact that we now have the power for the subject of the extradition to ensure that his case and his reasons for opposing extradition are known to the person who has to make the final decision. I am sorry that the noble Lord downgraded that because I believe we made a great advance and that it makes all the difference in the world to the fairness of the decision which will now be the procedure in this matter.
§ Lord Mishcon
My Lords, before the noble Lord sits down—and I shall not weary the House by jumping up again until I reply to this debate—I should like to say that he has completely misunderstood me. I merely referred to the notice that he now gets under the Bill. I was not vilifying any amendment which had previously been made when I said that the notice at the moment is a bland notice. The noble Lord is right to think that there is a right of reply but before one replies to something one has to know what one is answering.
§ 3.15 p.m.
§ Lord Campbell of Alloway
My Lords, I support this amendment. It is a fundamental principle of natural justice between the individual and the state, save in wholly exceptional circumstances such as state interest or state security, that the individual, who by virtue of an administrative decision may be disadvantaged, should be entitled to know the broad substance—no more—of the case he has to meet both in fact and in law.
Why should that be so? It is quite simply so that he may be given a fair opportunity of making the representations which are envisaged by subsections (3) and (5). In broad principle—and I hesitate to disagree with my noble friend—I wholly support the amendment. The reason I cannot support it as drafted is that it appears to ignore state interests and state security. Those are not taken into account and are most important and delicate matters which lie within the province of the Home Secretary. Although I support this amendment in principle, and have done so consistently throughout, I cannot support it as drafted.
§ Lord Denning
My Lords, I hope your Lordships will leave the Bill as it is because in a way the words are quite clear:A notice … shall explain in ordinary language the right confirmed by subsection (3)".Surely the Secretary of State can be trusted to carry out that duty and explain, not merely in a bland 936 notice, so that the man can understand. I do not think we need any more.
§ Lord Hutchinson of Lullington
My Lords, I support the amendment but if it is accepted by the Government I should like the amendment to use the words, "shall include the evidence". I am rather sad that this amendment has fallen into the trap of referring to "facts" and not to "evidence". This matter goes back to some questions which I asked the noble and learned Lord the Lord Chancellor during our earlier debate on this matter. We are continually told that it is the court that decides whether or not a person will be sent back. If it is the court that decides, then one refers to Clause 6 to see what the court considers. Clause 6(4), which we debated at length and tried to get rid of without success, states:the court of committal shall not consider whether the evidence would be sufficient to warrant the trial of the arrested person".Equally, if there is not an Order in Council, subsection (8) states:Where an authority to proceed has been issued … where that person is accused of the offence, unless an Order in council giving effect to general extradition arrangements otherwise provides, that the evidence would be sufficient to warrant his trial".So it is the evidence which the court is apparently supposed to be considering. Therefore, in this amendment the words should be:shall include the evidence and the law relied upon as justification for making such an order".That would make it perfectly clear throughout the Bill rather than attempt to avoid the word "evidence" by always putting "the facts". Surely "evidence" is the word we ought to have. Otherwise, I support this amendment.
§ Lord Ackner
My Lords, it was a unique pleasure hearing the noble Lord, Lord Mishcon, reading out that which sounded so much more persuasive from him than from me. Perhaps I may make it perfectly clear where I and the noble Lord, Lord Hutchinson, disagree. What is rightly provided in the clearest of terms is the opportunity for who I refer to as the defendant to have the right to make representations. It is obviously intended that he should have a proper right to make representations. The obligation as it stands at the moment under subsection (4) is merely an obligation to explain his entitlement under subsection (2).
The entitlement under subsection (2) is merely to make representations. There is no obligation to give the accused person the facts—I would add the word "matters" to avoid any confusion as to what "facts" could mean—and matters relied upon in support of the application so that he can make an effective representation. On the one hand, the Bill emphasises the right to judicial review which carries with it clearly the obligation to comply with the rules of natural justice. On the other hand, it does not place an obligation upon the Minister to enable him effectively to answer the allegations made. That is why I thought that the matter would be spelt out. I do not suggest that the evidence should be provided, but merely the material facts and matters relied upon in support of the application, including, of course, the relevant law.
§ The Lord Chancellor
My Lords, the House, as the noble and learned Lord, Lord Ackner, has said, has to some extent already discussed this matter. With regard to the principle, on Report the House decided on the basic form that extradition proceedings should take, assuming that the Bill becomes law, in situations where the Government consider that the law and legal system operating in some other country are ones in which sufficient confidence can repose to enable such an arrangement to go ahead. As we have heard, it is not easy to be sure that we are getting the precise detail absolutely right.
As I understand it, the principle behind this amendment and Amendment No. 3 is to provide that the Secretary of State in giving his decision in pursuance of the duty which the Bill lays upon him will give a decision that will mean something to the person who receives it. It is to be remembered that at the beginning, before any court proceedings of any kind in this country, a statement, as required by the Bill, will he given to the person accused to enable him to understand the basis upon which the extradition application is made. Towards the end of the proceedings, the Secretary of State will notify his intention to the accused person, if he intends to make an order for his extradition.
It is that order with which we are concerned in Amendments Nos. 1 and 3. I regard these amendments as having a good deal to commend them. The precise form in which the amendments should be cast is not by any means easy, as the debates have shown. I hope that the noble Lord will be content if I say that we undertake further to examine this matter in the light of your Lordships' views, and that if the further consideration brings forward an amendment we should seek to deal with it in another place. I shall of course write to the noble Lord who moved the amendment and to those of your Lordships who have spoken upon it, to communicate the decision, as that may be appropriate.
I hope that that meets the concern, which we recognise is a genuine concern, that we get this new procedure, which is considerably different from the present procedure, right not only in principle but in every possible detail.
§ Lord Mishcon
My Lords, I at once express my appreciation to the noble and learned Lord for the distance that he has travelled towards those who moved the amendment. I was possibly too optimistic when I thought he would travel the whole distance and say that, as the spirit of the amendment is one that commends itself to him, the amendment could be accepted, obviously with the proviso that wording which he deemed to be wiser and more apt would find its way into the Bill as it travelled its normal passage.
If I sat down at this moment, I wonder whether the noble and learned Lord could indicate whether he is prepared to take that course, in which case my gratitude would be even greater than it is at the moment.
§ The Lord Chancellor
My Lords, at the risk of going for second best, I must say that if the noble 938 Lord felt able to accept the undertaking I have given, I should prefer that course.
§ Lord Mishcon
My Lords, then I shall try, if I may, only for the clarification of my mind if no one else's, to spell out what I understand the undertaking to be. Incidentally, I express my gratitude to all the noble and learned Lords who spoke, even the one who spoke against me. I give him the title of "learned" because his utterances seem that way, even though I could not accept them as such. As I understand it, the undertaking is that it is realised that the whole basis of the notice to the respondent to that notice—the accused person, if I may call him that—has to spell out the case against him both in fact and in law.
I pause here only to tell the noble Lord, Lord Hutchinson, that the reason "evidence" is not included is that I anticipate that it would be deemed by the Government to be bringing in the prima facie rule by the back door. Since I would never he party to such a subtle move, the word "facts" or the words "facts and matters", as the noble and learned Lord, Lord Ackner, suggested, would obviously he a better alternative.
The spirit of the amendment is that the content of the notice must include the case that the respondent is supposed to answer. If the noble and learned Lord is undertaking that an amendment will be formulated to deal with that point, then I not only readily accept the undertaking but I again express my gratitude.
§ The Lord Chancellor
My Lords, with the leave of the House, the undertaking that I have given is carefully to consider this matter. There are difficulties which I did not feel it necessary to enter into, but which I can elaborate. One must remember that this is a stage. assuming that the extradition goes ahead, in a criminal process which will carry on in another place, and therefore there are serious questions about how far it is proper to go in an intermediate stage where one might prejudice the accused.
I am undertaking, in a spirit of understanding clearly the purpose of the amendment, to see whether we can achieve, in the formulation of the notice, a proper result taking account of what the noble Lord has said. Coupled of course with the notice with which the whole proceedings start is the initial warrant from the foreign country and the statement which is required by the provisions of the Bill. I do not think that I can commit my right honourable friend the Secretary of State any further than that, but I know that this is a matter which he would like further to consider in the light of the arguments that your Lordships have heard, and in a genuine attempt to reach a proper result. Whenever the decision on that is taken, if an amendment seems to be called for it would, as I have said, appropriately be made in another place.
§ Lord Mishcon
My Lords, I readily accept the spirit in which that undertaking and the explanation of it were given, and ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.939
§ 3.30 p.m.
Lord Elwyn-Jones moved Amendment No. 2:
Page 10, line 2, at end insert (", including but not limited to, representations as to and evidence tending to establish the innocence of the person exercising the right.").
§ The noble and learned Lord said: My Lords, I wonder whether the noble and learned Lord can be persuaded on Amendments Nos. 2 and 3 to go further, more precisely and with more commitment than he has so far, gracious and helpful as he has been on the first amendment.
§ It has been common ground in the debates that we have had on the question of extradition that it is a very grave matter to send a man or woman from this country in custody to be tried in a foreign country on a criminal charge which may be of a most serious character. The House by its vote has decided to dispense with what we on this side of the House thought was an essential requirement: that a prima facie case against the accused should be made in a magistrates' court in this country before the extradition process could proceed. That decision has added greatly to the responsibility which Parliament is giving to the Secretary of State if by warrant he can order the accused to be taken to the state by which the extradition request was made, there to be tried and dealt with. We are therefore on a very important matter governing the decision of the Secretary of State.
We have discussed the first amendment, which was moved by my noble friend Lord Mishcon, and the noble and learned Lord on the Woolsack has agreed to go a good deal of the way with him. This amendment adds to subsection (5) of Clause 9 of the Bill, which reads:
It shall be the duty of the Secretary of State to consider any representations made in the exercise of that right".
to make representations,
including but not limited to, representations as to and evidence tending to establish the innocence of the person exercising the right".
We want the position with regard to the examination of the accused's case to be as broad as is just and right in the circumstances.
I have in mind that it should be open to him, for instance, to represent and bring such evidence as he can that someone else was the author of the alleged crime or that the motivation of the foreign state in seeking his extradition was more related to a political view than to the merits or gravity of a particular case. But to illustrate the matter in somewhat more detail it is interesting to note, when the Bill considers the position on an application for habeas corpus, what matters the High Court may consider in dealing with such an application. In Clause 8(3) of the Bill, one sees that
on any such application",
for habeas corpus,
the High Court may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that
The amendment is therefore directed to representations of that kind to make certain that it would not only be open to the accused person to draw such matters to the notice of the Secretary of State but that the Secretary of State should have a duty to consider them in coming to his decision.
§ In this matter, where we have put so much responsibility governing the liberty of the subject in this country into the hands of the Secretary of State, it is vital that he should be seen to be exercising what will then be a quasi-judicial role fairly and sensibly. It is desirable in our view to spell out the important duty of the Secretary of State to inform himself fully of the accused's case and all the circumstances relating to the alleged offence.
§ We are dealing with a vital matter affecting the liberty of a subject of this country or indeed of a foreigner who might he in this country. In the light of what has been provided for in relation to habeas corpus, I hope that the noble and learned Lord will feel disposed to accept the amendment. I beg to move.
§ Lord Campbell of Alloway
My Lords, perhaps I may very briefly oppose the amendment in principle. It envisages a kind of pre-trial, a mini-trial, on issues for which guilt or innocence will in the long run be established judicially.
Apart from that objection, this lies wholly beyond the competence of the exercise of an administrative decision. It would take it beyond what is envisaged by the considerations of subsection (14), which include good faith and motivation, which were referred to by the noble and learned Lord, Lord Elwyn-Jones. This type of exercise would not lie within the province of the executive at all to assess guilt or innocence. I respectfully suggest that the proposal is not practicable.
§ Lord Renton
My Lords, my noble friend Lord Campbell of Alloway has opposed Amendment No. 2 on grounds of principle. I would oppose it on the much simpler ground of drafting. Subsection (5) is plain in its tones and about as wide and comprehensive in its effect as we could possibly imagine or require to have. The amendment elaborates some of the factors which necessarily could he put before the Secretary of State in the terms of the provision as it stands.
The noble and learned Lord has been very careful to try to get round the rule of interpretation, that when we express one thing we are deemed to exclude others unless we are very careful. If I may say so with deep respect to him, because his standing in law far exceeds mine, he used the expression,including but not limited to, representations as to and evidence tending to establish the innocence,and so on a little clumsily. It is quite unnecessary for us to be so over-zealous as to legislate in that way when we have a subsection which confirms fully and clearly the rights that are intended.
§ Lord Hutchinson of Lullington
My Lords, perhaps I may differ slightly from the noble Lord, Lord Renton, and congratulate the mover of this amendment. We have here the word "evidence", which is what we have been looking for all along. It is rather surprising that the notice which was to be received from the Secretary of State was to include only the facts on which the man was being sent away. When it comes to representations on behalf of the person, he will be asked to look at evidence tending to establish the innocence of that person. That goes further than mere representations, I suggest, and that is why the amendment should be supported by everybody.
§ Lord Harmar-Nicholls
My Lords, it is easy for me to be intimidated on this Bill by the strength and authority of all noble Lords with legal backgrounds. I am interested only in this part of the Bill, because one has had some experience of seeing decisions given in the past which have not at the end of the day seemed to be just. I cannot see any need for the amendment. If I understand the concession given by the Government—that is, that the defendant can make representations before the ultimate decision is made—is there anything in the Bill which will prevent him from including in his representations the point that is set out in the amendment?
Why do we have to spell out in the amendment what he or his representative can say as part of his defence? To go so far as to tell defendants how they have to make their representations, and to set out the parameters in this sort of detail, to some extent weakens the concession that I thought we were given by the Government; that is, that the defendant gives his reasons why he does not think he should be extradited from the country. Laymen in this country, on matters such as this—we see it happening in other countries—get a hit weary of the legal purity of some of our eminent legal leaders. As a layman, it seems to me that in their eagerness to justify every dot and comma of the legal side of the presentation they extend the time given to such matters and the extra time sometimes brings more cloud than light.
I feel that on this matter we should arrive at a speedier and a more just decision by not spelling out the parameters for the representative and the defendant. As the Bill stands at present (I shall read this and then finish),It shall be the duty of the Secretary of Slate to consider any representations made in the exercise of that right".Surely under that wide umbrella they can say anything they like, including the matters set out in the amendment.
§ Lord Havers
My Lords, I agree with my noble friend Lord Harmar-Nicholls. We always complain about statutes being too big. Here we are adding yet another sentence. I should have thought that subsection (5) covers everything perfectly well. I have spent eight years considering statutes in draft. Subsection (5) imposes a duty that is quite clear and will be well understood by the Secretary of State and the Home Office, whatever government are in power. The addition of these 15 words is unnecessary.
§ Lord Irvine of Lairg
My Lords, the position is that Hansard, which reports what we say in this House, and what the noble and learned Lord the Lord Chancellor undertakes in this House, may not be cited in court. When the courts come to construe this legislation they will look at the language of the Bill and nothing else. Further, it will be a breach of duty for counsel if he even refers to what has been said in this House or any undertaking as to the meaning of any piece of legislation passing through this House in support of a particular construction of the legislation.
That is the short and simple reason that we cannot say that an undertaking given in this House as to what something means will necessarily rule. The House has already decided that the prima facie safeguard has gone. That is a battle which is lost. We do not seek to re-open it. We know that the courts may not now consider evidence in these cases. The concern that has prompted these amendments is that the duty of the Secretary of State to consider representations may not extend to a duty on his part to consider representations as to the evidence. When we hear that the prima facie safeguard is not to be admitted by the back door then the right to make representations to the Secretary of State does not entail an obligation on him to behave as if he were a court to consider whether there is a prima facie case.
The purpose of the amendment is to ensure that the Secretary of State will consider as part of the representations evidence that the individual brings forward. To give the simplest of all examples, if the allegation against a person is that he committed a particular offence on a specific day in Paris and he submits impeccable evidence that he was not there and did not commit the offence, we wish to be satisfied that the Secretary of State will then be duty bound to consider his representations, which are in essence his alibi evidence.
If the Secretary of State simply says, "I have considered your representations but nonetheless you must go away" the proponents of the amendment desire to be able to argue in the courts that the Secretary of State's decision in that regard was irrational. We want to be satisfied that an answer to that will not be that he is under no obligation to consider evidence. If it is so clear that the general words bear that meaning, what harm is there in spelling it out?
§ 3.45 p.m.
§ Lord Harris of Greenwich
My Lords, I make just two brief points. First, the noble Lord, Lord Harmar-Nicholls, has on two separate occasions this afternoon announced that one of the great victories won by this House is that as a result of the debates we have had a person who is facing the prospect of extradition will have the right to make representations. The noble Lord implied that that was not in the Bill when first drafted; indeed, that is so. He indicated that he thought that we had made major progress. He has said it twice.
The House should be aware that people who have been at risk of extradition have always had a right of making representations to the Secretary of State. That is the position in the existing law. It did not even 943 cross the minds of many Members of this House that the Government were seriously proposing to withdraw that right. I welcome the fact that the right will now be spelt out, but there is no major concession there.
As I have indicated, I do not wish to make a major point, but the noble Lord, Lord Harmar-Nicholls, has raised the matter twice and therefore I thought that he would find it helpful to be aware of the existing situation.
Secondly, I shall deal with one matter concerning which the noble and learned Lord the Lord Chancellor will be aware. An issue which worried me and others was whether there would be a right to make oral representations from a person who now no longer has the safeguard of the prima facie rule before the Chief Metropolitan Magistrate, or whether oral representations could be made. It is only right to say that I have had a helpful letter from the noble and learned Lord the Lord Chancellor saying, first, that the existing practice is that oral representations, as far as he is aware, are always accepted by the Home Office and that that will continue to be the position.
Indeed, he has gone further and has indicated—I quote his letter—that:if, in an appropriate case, it is thought that it will be in the best interests of the fugitive to allow him to make oral representations in person and this can be arranged within a reasonable time then Douglas Hurd sees no reason why this should not he done".That is useful and, as regards that aspect of the matter, it meets the point I raised on Report.
§ The Lord Chancellor
My Lords, I am grateful to the noble Lord, Lord Harris of Greenwich, for making that clear. I am glad that we were able to meet his concern.
It is important to remember how this matter stands in the Bill. In subsection (3) of Clause 9, as amended, there is a provision entitling the person to be extradited—the person to whom such an order would relate—to make representations within a time limit as to why he should not be returned to the foreign state. That strikes me as a very plain, full, complete and comprehensive account of the subject matter of representations without any restriction whatsoever. Subsection (4) goes on to say:A notice under subsection (2) above"—a notice from the Secretary of State—shall explain in ordinary language the right confirmed by subsection (3) above".That is the right to which I have just referred.
I agree wholeheartedly with the noble Lord, Lord Renton, that it is highly important that in a matter of this kind people should be able to understand in clear language what their rights are. I cannot conceive of anything clearer than the words I have read out about the scope of the representations. Subsection (4) requires that that be expressed in "ordinary language". Perhaps that is a good reason why noble Lords such as my noble friend Lord Harmar-Nicholls should feel at home in this debate. We are in the business of trying to make this as simple as possible consistent with the nature of the matters that are in hand.
944 The strange thing is that the noble and learned Lord's amendment does not come in subsection (3) but, for a reason which so far I have not completely understood, comes later on in subsection (5), which says:It shall be the duty of the Secretary of State to consider any representations made in the exercise of that right".It seems an inappropriate place to seek to explain for the first time that the right to make representations includes representations that are clearly within the scope of the short words anyway. I say with the greatest possible respect that, far from making this simpler, more direct and easier to explain in ordinary language to the person affected, the noble and learned Lord's amendment appears to introduce an unnecessary additional complication.
Noble Lords who are familiar with the problems of statutory interpretation will have been faced with questions as to why apparently general words are followed by particular words of this kind, sometimes in an inappropriate place in the statute. The explanation very often is that it has been suggested in the course of debates in this House and in the other place that to make plainer what is already plain does no harm. However, if one looks closely at the words of the statute in order to answer a question upon them, one is sometimes considerably puzzled as to what precisely Parliament had in mind. Why did it need to say that? Is it intended to exclude something else? Far from being an improvement to the Bill, in my view, which I humbly commend to your Lordships, this amendment does nothing to further the interests which the noble and learned Lord seeks to advance.
§ Lord Elwyn-Jones
My Lords, this debate must be considered against the background of the position which now prevails in regard to the rights of an accused person. The House decided to remove the prima facie rule; the duty to produce evidence against a person for whom the application to extradite has been made. It has taken away any obligation in a public court or in a judicial proceeding to produce evidence to justify what is proposed. It is because of the absence of that requirement that it is essential now to emphasise that the Secretary of State at any rate should consider what the evidence is. That view has been strongly supported.
It is because of the new position, with the absence of any necessity in judicial proceedings for proof to be given of evidence to justify what the accused is charged with, that it is vital to attempt to fill the gap by such language as is included in the amendment. It is therefore desirable that there should be a specific requirement to deal with evidence,tending to establish the innocence of the person exercising the right".We are dealing with a stage in the history of the matter where the Secretary of State has to exercise a quasi-judicial decision. That is the burden upon him. He then has to make his own judgment. In the Interests of public confidence in such a decision it is right that there should be certainty and that all the relevant matters in the evidential field should be considered by the Secretary of State. This is the least we can do to reassure the public in a matter affecting the liberty of the subject that full care has been taken 945 by detailed examination of the evidence against someone to ensure that a just and right decision has been made. In the circumstances, I propose to invite the House to take a view on this matter.
§ Lord Goodman
My Lords, before the noble and learned Lord sits down I would venture to ask him a question. Will he comment on the suggestion hinted at by the noble Lord, Lord Renton, that specifying a number of particular matters might, under what I seem to remember is called a ejusdem generic rule, cut down the generality of the matters that could be taken? Let us consider this possibility. The Secretary of State is invited to consider in the representations certain matters to do with the judicial impartiality of the court. It could be represented that in view of the specific matters uttered it is not a matter that he ought to consider.
§ Lord Elwyn-Jones
My Lords, your Lordships will observe—and I note the importance of that intervention—that as it stands the subsection says:It shall be the duty of the Secretary of State to consider any representations made in the exercise of that right".The amendment would add:including but not limited to, representations as to … evidence".Therefore, a wider field is available to cover the very point that the noble Lord has made.
In my submission the particularity, and at the same time the generality, of what is provided for in the amendment meets that difficulty. What I fear is that public confidence in what we are about when we have got rid of the prima facie rule will be diminished if we reject the amendment.
§ 4.1 p.m.
§ On Question, Whether the said amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 107; Not-Contents, 157.947
|DIVISION NO. 1|
|Airedale, L.||Elwyn-Jones, L.|
|Amherst, E.||Ennals, L.|
|Ardwick, L.||Ewart-Biggs, B.|
|Attlee, E.||Ezra, L.|
|Banks, L.||Fisher of Rednal, B.|
|Basnett, L.||Gallacher, L.|
|Birk, B.||Galpern, L.|
|Borthwick, L.||Gladwyn, L.|
|Boston of Faversham, L.||Glenamara, L.|
|Bottomley, L.||Graham of Edmonton, L.|
|Briginshaw, L.||Grey, E.|
|Brooks of Tremorfa, L.||Grimond, L.|
|Bruce of Donington, L.||Hampton, L.|
|Burton of Coventry, B.||Hanworth, V.|
|Callaghan of Cardiff, L.||Harris of Greenwich, L.|
|Campbell of Eskan, L.||Hatch of Lusby, L.|
|Carmichael of Kelvingrove, L.||Houghton of Sowerby, L.|
|Carter, L.||Hunt, L.|
|Cledwyn of Penrhos, L.||Hutchinson of Lullington, L.|
|Cocks of Hartcliffe, L.||Irvine of Lairg, L.|
|Davies of Penrhys, L.||Irving of Dartford, L.|
|Dean of Beswick, L.||Jay, L.|
|Diamond, L.||Jeger, B.|
|Donaldson of Kingsbridge, L.||Jenkins of Hillhead, L.|
|Dormand of Easington, L.||Jenkins of Putney, L.|
|Dowding, L.||John-Mackie, L.|
|Kilbracken, L.||Rathcreedan, L.|
|Kilmarnock, L.||Ritchie of Dundee, L.|
|Leatherland, L.||Robson of Kiddington, B.|
|Listowel, E.||Sainsbury, L.|
|Llewelyn-Davies of Hastoe, B.||Seear, L.|
|Lockwood, B.||Sefton of Garston, L.|
|Longford, E.||Serota, B.|
|Lovell-Davis, L.||Shackleton, L.|
|Mais, L.||Shepherd, L.|
|Masham of Ilton, B.||Silkin of Dulwich, L.|
|Milford, L.||Simon, V.|
|Mishcon, L.||Stallard, L.|
|Molloy, L.||Stedman, B.|
|Monson, L.||Stewart of Fulham, L.|
|Morton of Shuna, L.||Strabolgi, L.|
|Mulley, L.||Taylor of Blackburn, L.|
|Murray of Epping Forest, L.||Taylor of Mansfield, L.|
|Nicol, B. [Teller.]||Tordoff, L.|
|Northfield, L.||Turner of Camden, B.|
|Ogmore, L.||Underhill, L.|
|Oram, L.||Wallace of Coslany, L.|
|Parry, L.||Walston, L.|
|Peston, L.||Wells-Pestell, L.|
|Phillips, B.||Whaddon, L.|
|Ponsonby of Shulbrede, L. [Teller.]||White, B.|
|Prys-Davies, L.||Wilson of Rievaulx, L.|
|Raglan, L.||Winstanley, L.|
|Ackner, L.||Forbes, L.|
|Aldington, L.||Fortescue, E.|
|Alexander of Tunis, E.||Fraser of Kilmorack, L.|
|Ampthill, L.||Gardner of Parkes, B.|
|Annandale and Hartfell, E.||Glenarthur, L.|
|Arran, E.||Goold, L.|
|Auckland, L.||Gray of Contin, L.|
|Beaverbrook, L.||Gridley, L.|
|Belhaven and Stenton, L.||Grimthorpe, L.|
|Bellwin, L.||Hailsham of Saint Marylebone, L.|
|Belstead, L.||Harmar-Nicholls, L.|
|Bessborough, E.||Havers, L.|
|Blatch, B.||Headfort, M.|
|Blyth, L.||Henley, L.|
|Boyd-Carpenter, L.||Hesketh, L.|
|Brabazon of Tara, L.||Hives, L.|
|Brentford, V.||Home of the Hirsel, L.|
|Broadbridge, L.||Hood, V.|
|Brougham and Vaux, L.||Hooper, B.|
|Broxbourne, L.||Hylton-Foster, B.|
|Butterworth, L.||Ilchester, E.|
|Buxton of Alsa, L.||Johnston of Rockport, L.|
|Caithness, E.||Kaberry of Adel, L.|
|Cameron of Lochbroom, L.||Killearn, L.|
|Campbell of Alloway, L.||Kinloss, Ly.|
|Carnegy of Lour, B.||Kinnaird, L.|
|Carnock, L.||Lane-Fox, B.|
|Colnbrook, L.||Lauderdale, E.|
|Constantine of Stanmore, L.||Lawrence, L.|
|Cottesloe, L.||Long, V.|
|Cowley, E.||Lucas of Chilworth, L.|
|Cranbrook, E.||Lurgan, L.|
|Crathorne, L.||Mackay of Clashfern, L.|
|Croft, L.||Macleod of Borve, B.|
|Cullen of Ashbourne, L.||Malmesbury, E.|
|Davidson, V. [Teller.]||Manton, L.|
|De Freyne, L.||Margadale, L.|
|De La Warr, E.||Marley, L.|
|Denham, L. [Teller.]||Marshall of Leeds, L.|
|Denning, L.||Massereene and Ferrard, V.|
|Derwent, L.||Merrivale, L.|
|Dilhorne, V.||Mersey, V.|
|Dundee, E.||Middleton, L.|
|Ebbisham, L.||Milverton, L.|
|Effingham, E.||Montgomery of Alamein, V.|
|Elibank, L.||Morris, L.|
|Ellenborough, L.||Mottistone, L.|
|Elliot of Harwood, B.||Mowbray and Stourton, L.|
|Erroll of Hale, L.||Moyne, L.|
|Fanshawe of Richmond, L.||Munster, E.|
|Ferrier, L.||Murton of Lindisfarne, L.|
|Nelon, E.||Shaughnessy, L.|
|Northbourne, L.||Simon of Glaisdale, L.|
|Nugent of Guildford, L.||Skelmersdale, L.|
|O'Brien of Lothbury, L.||Somers, L.|
|Onslow, E.||Stanley of Alderley, L.|
|Orkney, E.||Stodart of Leaston, L.|
|Pender, L.||Strange, B.|
|Penrhyn, L.||Strathclyde, L.|
|Peyton of Yeovil, L.||Strathcona and Mount Royal, L.|
|Rankeillour, L.||Swinton, E.|
|Reay, L.||Terrington, L.|
|Renton, L.||Thomas of Gwydir, L.|
|Richardson, L.||Thorneycroft, L.|
|Rochdale, V.||Trafford, L.|
|Rochester, Bp.||Tranmire, L.|
|Rodney, L.||Trefgarne, L.|
|Romney, E.||Trumpington, B.|
|Roskill, L.||Ullswater, V.|
|St. Davids, V.||Vaux of Harrowden, L.|
|St. John of Fawsley, L.||Waldegrave, E.|
|Saltoun of Abernethy, Ly.||Ward of Witley, V.|
|Sanderson of Bowden, L.||Whitelaw, V.|
|Sandys, L.||Wilberforce, L.|
|Seebohm, L.||Wise, L.|
|Sempill, Ly.||Wynford, L.|
|Shannon, E.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.10 p.m.
Lord Elwyn-Jones moved Amendment No. 3:
Page 10, line 5, at end insert (", and shall include or be accompanied by a statement of reasons which have caused the Secretary of State to reject any such representations.").
§ The noble and learned Lord said: My Lords, Amendment No. 3 requires the Secretary of State to give the reasons if he rejects representations by an accused person and therefore the accused is extradited. The amendment imposes a duty to state the reasons for rejection of the representations.
§ We have had a debate in which we have concluded that there is no necessity to spell out, or give indications to the accused, evidence which may be available to the Secretary of State. We have a proposal that the Secretary of State, should be required to say why he has turned down the representations of the accused particularly against that background.
§ Increasingly judicial bodies are being required to give reasons. In the old days there was positive discouragement but now there is an increasing expectation and requirement that when a decision is made reasons shall be given. It is not a burden that ought to be excessive to place upon the Secretary of State if a positive decision has been made. In my submission, it is important to establish—to use the old phrase—that justice has not only been done but has been seen to be done. The public, which will be greatly concerned in every extradition case, especially after these debates, should know exactly why the representations of an accused person have been turned down by the Secretary of State. It is in those circumstances that I move this amendment.
§ Lord Havers
My Lords, in principle I have great sympathy with this amendment. I think that it will concentrate the minds of the civil servants and the Minister very well. It may be of great assistance in considering whether there should be a judicial review, 948 and if sensible reasons are given it ought to reduce the number of judicial reviews.
However, I am concerned where there is a question of security behind it. To say, "I am not going to give reasons because there is a security aspect" (which would need an amendment to this amendment) might be difficult. I look forward with interest to hear what either my noble and learned friend the Lord Chancellor or the Minister say in reply. I think it is impossible to have an amendment of this kind which requires the Minister to give reasons when there may be reasons which he is unable to give.
§ Lord Grimond
My Lords, I am sure that your Lordships will be greatly encouraged in regard to this amendment by the speech made by the noble and learned Lord, Lord Havers. As I understand the matter, he will support the amendment except that he has reservations with regard to security. The question of security will be covered by the normal rules governing security and which safeguard Ministers from being cross-examined on these matters. After the Wright case, I do not have any great confidence in the Government's handling of security. Nevertheless, I do not think that one would be justified in turning down the amendment simply on the ground that there may be difficulties over security.
There is one issue which seems to be at the back of discussions on this part of the Bill and which perhaps has not been mentioned for good reason. Here we are handing over to the Government, particularly the Home Office, semi-judicial responsibilities. As someone who has had considerable dealings with governments for a great number of years, (though never having been in one) I do not have complete confidence in the Government, let alone the Home Office, to discharge semi-judicial responsibilities. That is not to say that there have not been many admirable Home Secretaries; indeed, I have just introduced a former Home Secretary.
However, I do not share the view, if it exists, that the Home Office and the Government in general are a body fitted, without reservation, to be trusted with semi-judicial responsibilities. If we are to remove the right of people to have any prima facie examination of the case against them, I think that the least we can expect is that the Secretary of State shall give his reasons.
Furthermore, after listening to the debate, I am not certain as to the possible position of judicial review and natural justice. As I understand the matter, the decisions are subject to judicial review. Surely it would be easier to make that effective if we know the reasons upon which the Home Secretary rejected the application. I trust that noble Lords will not be bemused if I talk about security, and I very much support the amendment.
§ 4.15 p.m.
§ Lord Denning
My Lords, I should like to support the amendment. I remember that some years ago, on the appointment of a new colonial judge, Lord Mansfield said, "Give your decision but never give your reasons. The decision may well be right but your reasons are almost certain to be wrong". Nowadays it is important that everyone giving a decision should 949 give his reasons, especially if there is a possibility of a judicial review because it can be more properly exercised if reasons are given.
§ Lord Campbell of Alloway
My Lords, I believe that I suggested at Committee stage, and assuredly at Report, that the Secretary of State should give reasoned decisions. I wholly accept and wish to support the reasoning of my noble and learned friend Lord Havers, in particular on the security angle. Therefore the amendment would require redrafting, in my view, although the spirit of it is clearly sound. In particular, it is sound because there is always scope for argument as to whether on the construction of any particular statute the executive must give a reasoned decision, or as to whether, in the absence of a reasoned decision, the court can quash a decision as unreasonable in the sense in which that term is understood in administrative law.
Looking at subsection (13) your Lordships will see at once the importance of spelling out on the face of the statute that a reasoned decision should be given, because that is in accordance with natural justice. That is clear and totally plain language; and, with respect, it is a fair resolution as between the individual and the state.
§ Lord Renton
My Lords, I have a greater difficulty with this amendment than some noble Lords who have spoken in support of it—even my noble and learned friend—because there is likely to be a security factor in some of the decisions. If we require the Secretary of State to give reasons where there is no security factor and not to give reasons when there is one, to put it bluntly, it is letting the cat out of the hag. I speak from having spent three and a half of the most interesting years of my life advising the Home Secretary when I was in charge of what was then called the aliens department of the Home Office. I can foresee real difficulty affecting the interests of the country if we are not very careful about how we phrase this provision. Speaking for myself, I think that it could be better to leave the Bill as it is.
§ Lord Harris of Greenwich
My Lords, I very much hope that we shall not leave the Bill as it is. I do not have the same suspicions as my noble friend Lord Grimond about the attitude of Home Office officials. I think that they care as much about civil liberties as do Members of this House.
That said, if we are talking about extraditing someone who in many cases will be a British citizen to undergo what may be one or two years of custody in a foreign prison, it seems to me incumbent upon the Secretary of State to give his reasons for rejecting those representations.
To take up the point of the noble and learned Lord, Lord Havers, I think that in some cases questions of British national security may well be involved. However, we must be hesitant about this catch-all phrase "security". Whose security? British national security I understand of course, but we are talking about extradition and so are talking of what may be said by, let us say, the Greek Government, the French Government or the Italian Government to be a question of their national security. I am not sure that 950 the adoption of language of this kind by a foreign government, however friendly our relations with that government, is by itself adequate to prevent the Secretary of State from giving his reasons.
I am perfectly prepared to be convinced by argument that my position on this matter is unreasonable, but I have found the constant repetition of the phrase "national security" slightly disquieting when most of us are well aware that in the overwhelming majority of cases we are now discussing no conceivable question of security will be involved.
§ Lord Boyd-Carpenter
My Lords, I believe that the noble Lord has overlooked one point in his speech; namely, that sadly we live in an era of international terrorism. As I understand it, an appreciable proportion of extradition cases has a relationship to that problem. It is surely not enough to say, as the noble Lord appeared to say, that one must make a concession where British national security is involved. There is the case of the security of friendly powers who are in the same boat as us in this dangerous international situation.
The problem—it has been well stated so I repeat it in one sentence only—is that the Home Secretary cannot give the facts where either our own security or, I suggest, the security of friendly powers is involved. If the amendment is accepted we shall put him in a position of labelling a case as having security implications by his refusal to give reasons. One then alerts everybody to the fact that it is a security case. The press, naturally and very properly, will pick it up; so, naturally but rather less properly, will the international terrorists. I therefore think that we are running an unnecessary irsk—although I understand the arguments for something of this kind in other cases—if we put this provision into the Bill. I hope that your Lordships will not do so.
§ Lord Mishcon
My Lords, I wonder—and I say this with all due humility—whether we are not making unnecessary problems for a very just solution. Your Lordships seem to be in general agreement that in the ordinary run of cases reasons should be given before we rob a fellow citizen or even a stranger in our land of his freedom and, as the noble Lord, Lord Harris of Greenwich, was saying a moment ago quite correctly, possibly subject him to some two years' imprisonment before he even gets his trial. We all know that that kind of condition exists in some places.
If it be right that in the majority of cases there will be no difficulty in giving reasons, is Parliament justified in deciding that it will pass a Bill enabling the Home Secretary to say, have decided to grant this application—I give no reasons at all"? Except for the point about judicial review, that is what the Home Secretary could say if he wanted and that would be the strictly legal advice that he could be given—"Look at the Act; you have no need to give reasons".
With regard to practicalities, let us take the few cases that may arise where security is at stake. As one would expect, the noble and learned Lord, Lord Havers, was absolutely right to bring the point before the House. Would the Secretary of State, because 951 Parliament instructed him to give reasons, be required to give details that might comprise a very important secret of a foreign power? Since there has to be a charge for the man to face in the foreign court, upon which the Secretary of State would be giving a view before the extradition order was made, would it not be sufficient for the Secretary of State to give as his reason that sufficient facts had been put to him to make him believe that a criminal offence of the nature mentioned in the warrant had been committed? Where is the security risk in that? Who envisages that the reason the Secretary of State has to give will be in the following terms? "I have before me evidence that the accused was in fact mixing with IRA terrorists on the blank day of blank, the names of the said terrorists being …? That is not a reason.
§ Lord Havers
My Lords, I am concerned about what the noble Lord has told your Lordships. The amendment says,shall include or be accompanied by a statement of reasons".What the noble Lord has suggested the Home Secretary should say could never be described as a statement of reasons.
§ Lord Mishcon
My Lords, with due respect, I wonder whether the noble and learned Lord is right. Even if he is right and I am wrong, obviously it should not be difficult to cover the security point without throwing out what is a very necessary amendment. The greater evil in my submission is not the security risk; it is that we shall be leaving the Secretary of State in a position where he need give no reason at all.
Perhaps I may persist briefly in my alternative argument. I do not see why it is failing to be a reason when the Secretary of State, on the facts that he has—and no one anticipates this—says, "I have compared the evidence of A and B and I think that the evidence of A is more reliable". All that he has to do by way of reasoning is to say that, on the facts before him and by reason of what he has been shown, the submissions made by the respondent in his view are not sufficient to stop him from issuing the order for extradition. I repeat that the argument must be right. You cannot throw out a very proper principle because there happens to be an exception in a minority of cases which obviously can be covered in an appropriate manner.
§ 4.30 p.m.
§ Lord Harmar-Nicholls
My Lords, my instinct is that this amendment would be really dangerous. The practical issues, I think, as spelt out by my noble friend are there. The security element is real. We have seen the dangers that flow from not paying proper attention to what can flow from a breach of security. So there are practical reasons. But the reason my instinct is against it is this. This amendment really means, at the end of the day. that we have no confidence in the ability or the impartiality of future Secretaries of State so to act.
If we do not think we can produce Secretaries of State whose stature, impartiality and ability is such that they can come to these decisions, then we ought 952 not to have this amendment in the Bill at all. If we feel it is not possible to have a Secretary of State who can be given the freedom to come to his own genuine judgment—as he sees it—having had the evidence on one side and the representations from the defendant on the other, we should not agree to it.
I believe that now on the fundamental issue, if we have come to the conclusion—whether it is for administrative reasons or because it is a better way to apply justice, as the lawyers would like it—that we are going to alter the law to the point where the decision is to be made by the Secretary of State. then we must have enough confidence that in this country, whoever are the government, we will be able to throw up the quality of person capable of being given that freedom to do it.
The minute you ask for explanations in detail you are opening up the subject again for an extension of the argument and for delaying the eventual decision. That is a very dangerous thing as we have seen with some of the problems we have with Southern Ireland. I believe that one of the important things that can flow from this is that we can have a quick decision from people who have every reason to wish to be impartial and objective. Should it be that they have to give reasons, with all the dangers that flow therefrom, the old rule of which the noble and learned Lord, Lord Denning, reminded us should apply. I think it has served us well.
The first instruction that the Lord Chancellor has given in the past to the local magistrate is: "Give your decision but do not explain why". That is where the trouble starts for disrupting the whole of the community. If the Secretary of State has to give decisions on an issue as important as this when he agrees to the extradition, will he then have to give reasons if he does not agree to it? A lot of people—whether people in other countries or in our own—will no doubt feel that he ought to agree to it in the interests of wider international justice, particularly in these days of terrorism. This terrorism frightens all of us or. if it does not. it ought to, because it is growing to proportions which are perhaps more dangerous than in any other international field today.
Therefore, my instinct is that it would be too dangerous to implement this amendment if we can produce, as I believe we can—we have in the past and we will in the future—people to hold the office of Secretary of State and to whom we can confidently give the final decision. That is why—it is an instinct and not an argument in support of the practical points that have already been made—I hope that the Government will not agree to this amendment, because I think they will be agreeing to something that is dangerous.
§ Lord Wigoder
My Lords, if I may point this out quickly, the argument put forward by the noble Lord, Lord Harmar-Nicholls, has already been abandoned by the Government themselves at an earlier stage of this Bill. The Government themselves have introduced the machinery for judicial review. That implies (does it not?) that it is just conceivably possible that every now and again the Home Secretary may make an error. All this amendment 953 seeks to provide is that if that machinery is to mean anything there should be some opportunity given to the person sought to be extradited to exercise that machinery in order to know exactly what is going on.
I should like just to add this. The amendment does not require the Home Secretary to give his reasons for extraditing somebody. The amendment requires the Home Secretary to give his reasons for rejecting the representations of the defendant. That is a totally different matter. I join the noble Lord, Lord Mishcon, in saying that I find it very difficult to conceive of a case in which a Home Secretary could not reject representations being made by a defendant—however great the security issue was in that case—without revealing the security issue itself.
§ Lord Somers
My Lords, is this not a principle which applies from the very beginning of life? If one punishes a child one invariably gives him a reason for doing so. Later in life nobody finds himself in court without being told the reason he is there. It seems to me that this is the principle of justice which this House ought not to avoid merely by imagining hypothetical difficulties in administering it.
§ The Lord Chancellor
My Lords, when I spoke in relation to Amendment No. 1, I intended also to cover this amendment. Perhaps your Lordships will remember. I think Amendment No. 1 was in essence part of the same philosophy that some form of reason should be given, with a certain amount of basic material to support it. My position as regards this amendment is the same as it was in relation to Amendment No. 1—namely, that I undertake, on behalf of the Government, that it will be given sympathetic consideration.
However, there are difficulties which have been adverted to by various of your Lordships who have spoken. These are practical difficulties which have to be taken into account. There is also a further difficulty that I should like to mention, in a sense brought out by the argument of the noble Lord, Lord Mishcon, where he was seeking to counter the argument put forward by my noble and learned friend Lord Havers. He gave an illustration of the kind of reason that the Secretary of State could give. The more he gave it, perhaps the less informative it was.
There is not much point in having an obligation to give reasons unless there is something additional that, by the reasons, the Home Secretary can communicate to the person affected. If the person has all the information on which the extradition warrant is based—the statement that is required under the Bill to accompany the warrant—it is not always easy to think of what additional informative reasons the Secretary of State can give. I am sure your Lordships would not wish to impose a duty on the Secretary of State to give reasons which could be dealt with in a merely formal, rubber stamp way applying to every case that he wished to go forward. I am sure the House would have in mind, were this duty to be imposed, informative reasons—reasons that informed the person of something he did not already know; reasons that would inform the judicial process if and when a judicial review was required. This 954 would be in the sense that my noble and learned friend Lord Scarman used in connection with the disciplinary proceedings before the medical authorities which are the subject of appeal to the Privy Council where there is no statutory obligation to give reasons. Nevertheless, the board has on occasion felt—although not always—that if the disciplinary committee had given reasons it would inform the judicial process on appeal. I have no doubt that in some circumstances on judicial review such informative reasons would be helpful. But, the question is by no means free from difficulty.
I hope that the noble and learned Lord who moved this amendment will, with his usual grace, allow my right honourable friend the Secretary of State some further time to consider this matter in the light of all that your Lordships have contributed in a very informative debate.
§ Lord Elwyn-Jones
My Lords, for my part I am grateful for the gracious manner in which the noble and learned Lord has dealt with this matter. There has been powerful opinion expressed from all quarters of this House—oddly enough on this—that reasons ought to be given.
I should like to be clear in what I am pleased to call my mind as to what exactly the noble and learned Lord has in mind, whether it is conceded that there ought to be given reasons for turning down the representations made by the potential accused in extradition proceedings. As I understand it, it is agreed that reasons ought to be given but in certain circumstances there should be room for qualification by the Secretary of State. I do not know whether that is the way in which the noble and learned Lord thought this matter should be approached.
§ The Lord Chancellor
My Lords, much as I like the elegant phraseology of the noble and learned Lord, on this occasion I prefer my own, which is that I undertake that my right honourable friend will give the amendment sympathetic consideration. If he is persuaded that it is possible to amend the Bill to advance the matter in an appropriate way, then he will propose such an amendment in the other place and I shall inform noble Lords who have taken part in the debate by letter of the result of that consideration when he arrives at it. But I am not in a position to commit him at this stage to the principle of the amendment, and I think that is perhaps what the noble and learned Lord is seeking to push me to do. I am not prepared to go to that length. I am prepared to say that my right honourable friend will give sympathetic consideration to this amendment in the light of all that has fallen from your Lordships and his further consideration of it, and if he is persuaded in the light of all that that some amendment on these lines is appropriate he will endeavour to bring that forward in the other place.
§ Lord Elwyn-Jones
My Lords, it would be ungracious of me to say no to the suggestion of the noble and learned Lord. It would be quite improper for me to express any lack of confidence in another place—of course I should not dream of doing so—but I greatly hope that the mood that has emerged, as I see it, from this House will be communicated by him to the Secretary of State. In 955 those circumstances, and in view of the undertaking that has been given, I hope that those who have supported my submissions until now will take the view that it would be less than gracious not to accept the wish of the noble and learned Lord to do the best he can to meet the views that have been expressed in the House. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.45 p.m.
Lord Silkin of Dulwich moved Amendment No. 4:
Page 10, line 13. leave out subsection (9).
The noble and learned Lord said: My Lords, up to now in these debates we have sought to clarify this rather difficult clause by adding words to it. Amendment No. 4 seeks to clarify it by taking words out of it; that is to say, subsection (9). In order to understand the point one ought to go back to subsection (1), which provides for the warrant by the Secretary of State. We have dealt with the subsections thereafter up to subsection (6), and when we come to subsection (7) we have the provision that,
A person shall not be returned in pursuance of any such warrant until the expiration of the period of 7 days commencing with the date on which the warrant is issued or such longer period as rules of court under section 84 of the Supreme Court Act 1981 may provide".
So under that subsection, the warrant having been served, a person shall not be returned in pursuance of it for at least seven days, and it may be longer than seven days.
In subsection (8) we have the provision that,
At any time within that period"—
that is to say, seven days, or a longer period as the case may be—
the person to whom the order would relate may apply for leave to seek judicial review".
Then we come to subsection (9), which is the one dealt with in this amendment, and that provides as follows:
Unless the person to whom the order relates waives the right conferred on him by subsection (8) above"—
that is to say, the right to seek judicial review—
he may not be returned to the foreign state before the end of that period'".
That period plainly means the period of seven days or the longer period referred to in subsection (7).
§ So we have the same provision as subsection (7) but with the qualification that subsection (7), absolute as it is in its terms, is not to apply where the person concerned waives the right conferred on him. We appear to have not so much an otiose provision as one which conflicts with the earlier provision of subsection (7). I put the point to the noble Earl the Minister as I saw it. It looked as though it may simply have been a drafting error. He has been good enough to explain to me that it is desired to ensure that a person who does not wish to take advantage of his right to seek judicial review should, if he wishes to do so, be able to go back to the state in question straight away, without having to wait until the period of time laid down in the Bill has elapsed.
§ I entirely understand and sympathise with that principle, but I am bound to say that I do not see how the conjunction of subsections (7) and (9) gives effect 956 to what the Minister intends. It seems to me that subsection (9) is in conflict with subsection (7), and the wording does not rule out the provisions of subsection (7) in the case where the person in question wishes to go back because of the absolute terms of subsection (7).
§ I think that some amendment is necessary to reconcile these two criteria and I accept entirely, as I said, the wish of the Government to give that possibility of going back earlier. I assume that the Government on their side do not wish to force somebody to go back before the seven days or the later period referred to in subsection (7) have elapsed. They are only concerned with the person who wants to go back.
§ Therefore I suggest that they look at these words again. It may be that simply removing subsection (9) does not meet their objective, although it meets the objective that I saw when I read the clause as it stands. In those circumstances, I shall be most interested to hear what the Minister says. In the meantime, I beg to move.
§ The Lord Chancellor
As I understand the noble and learned Lord there is no point of principle between the Government and himself. I had, I must say, understood at one stage that there was a desire on his part to remove the option to a person who wanted to go away immediately, but I understand from his statement that that is not so. I noted carefully his submission and I must say with great respect that it seems to me there is some substance in the point. We shall certainly have that looked at.
The desire is to give a strong right to the person who wishes to avail himself of judicial review to remain for the relevant period, but to make it possible for a person who does not wish to avail himself of that right but wishes to go away immediately to waive the right and go immediately if he wants to. But I can see that subsections (7) and (9) standing together may not be the happiest way of expressing that. I am grateful to the noble and learned Lord and we shall certainly re-examine the drafting of these provisions.
§ Lord Silkin of Dulwich
My Lords, for my part I am grateful to the noble and learned Lord the Lord Chancellor. To use some foreign words we appear to be ad idem on this. I hope that by the time the Bill reaches another place this little difficulty will have been resolved. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elwyn-Jones moved Amendment No. 5:
Page 10, line 26, leave out subsection (13)
§ The noble and learned Lord said: My Lords, I am most grateful to have received an intimation from the noble and learned Lord the Lord Chancellor that he would not be not-content if I were to move the amendment. He has graciously allowed me to do so.
§ I am tempted to do what I venture to think the noble and learned Lord, Lord Hailsham of Saint Marylebone, might be tempted to do on this occasion and that is to talk about the sinner who repenteth. But of course I should not think of addressing such a comment to the occupant of the Woolsack. We 957 discussed subsection (13) at very great length at an earlier stage. The consensus of opinion that clearly emerged was that a denial of judicial review in the circumstances was quite unacceptable. Accordingly I am delighted to have put my name to the amendment. Perhaps I should say that the historical order of events is that the amendment was originally tabled in the name of myself and my noble friends. Later the noble Earl, Lord Caithness, added his name. I am not claiming any great virtue because of that but that is how it happened. In the circumstances I am very content to move the amendment which stands in the name of the noble Earl, my own and others. I beg to move.
§ Lord Denning
My Lords, without a word of welcome and gladness it would be very wrong for Parliament or anyone to dictate to the judges how they should exercise judicial review. Therefore I am very glad to see this subsection removed.
§ Lord Hutchinson of Lullington
My Lords, we should not let this matter go by with everyone congratulating themselves on it without saying that this subsection was a nonsense from the start. It did not make the slightest difference to the Bill. It was put in quite obviously as window-dressing, as a cosmetic in order to ensure that the matter went through the Lobbies and received the necessary votes. It is now being scrubbed out. However the fact still remains that of course in judicial review it will be quite impossible for the court to review the evidence in any event.
§ The Lord Chancellor
My Lords, when we proposed amendments on Report there was reference to a subsection which now appears as subsection (13). That in itself perhaps has some significance. At an earlier stage it came under the heading (m). It was criticised by a number of noble Lords including the noble and learned Lords, Lord Denning, and Lord Ackner, my noble friend Lord Campbell of Alloway and the noble Lords, Lord Mishcon, and Lord Irvine of Lairg.
There is no question that that criticism and my attitude to it was clearly expressed before your Lordships were invited to vote upon the amendment. If I may say so, the idea propounded by the noble Lord, Lord Hutchinson of Lullington, is perhaps a little less than worthy of him. There is no question of it being window-dressing. I explained at the time why it was put in. Your Lordships criticised it. We have looked carefully at the criticism and decided with the noble and learned Lord who has moved the amendment that the Bill was better without it. That seems to me to be part of the proper processes of this House which we have endeavoured to apply properly.
I had hoped by inviting the noble and learned Lord, Lord Elwyn-Jones, to move the amendment to indicate that we had managed to secure agreement in this way. I believe that he put the amendment down first and I thought it only right that he should have the credit for it. But it is credit of course in which we hope to join. As I have said I found the observations of the noble Lord a little less than up to the usual high standard which we expect of him.
§ On Question, amendment agreed to.958
Lord Hutchinson of Lullington moved Amendment No. 6:
Page 11, line 1, leave out ("may decide not to") and insert ("shall not").
The noble Lord said: My Lords, I beg to move Amendment No. 6 and I wish to speak to Amendments Nos. 7 and 8. Amendments Nos. 6 and 7 make it incumbent on the Secretary of State not to return a person to a foreign state:
if that person could be…sentenced to death
unless he receives a satisfactory undertaking that such a sentence would not be carried out.
§ Article 11 of the European convention which the Government cite as the basic reason for their new executive extradition procedures specifically gives signatory nations the right to ask for such an undertaking. A number of what we now know as respectable European countries have done exactly that. As we have abolished the death penalty should we not now do the same? Indeed as became clear in our discussions on Report the Government appear to take the view that if it were possible to ask for such an undertaking we certainly should ask for it. The only reason that the Government put forward and have put forward for that measure being impossible is our relations with the United States of America. Because of the federal nature of the American constitution, it is said that federal government cannot give such an undertaking in relation to a trial in one of the states.
§ I have persisted in putting down these amendments again for four reasons. First, the noble and learned Lord the Lord Chancellor gave an undertaking on Report that the powerful views which were expressed in support of this amendment would be given consideration by the Secretary of State and that the Government would continue to look for a solution to this problem. He said that the Government were not giving up. I hope that that quest has perhaps by this time been concluded.
§ The second reason is that the noble Lord. Lord Allen of Abbeydale, said on Report that he could not see why the federal government should not tell the state concerned that it would not get the person sent back unless it gave this undertaking. If a former Permanent Secretary at the Home Office says that, then speaking for myself I find it difficult to accept that the Government cannot find a way of achieving what the noble and learned Lord the Lord Chancellor described as the prevention of this dreaded result. Perhaps some of your Lordships would agree with that.
§ Surely it is for us to put into our law what we think is proper and appropriate and for the Americans to find a solution to their problem. Surely it is not for us to try and resolve their difficulties. That is the submission that I put before your Lordships on those two amendments.
§ I hope that I shall not be told that my next comment is not a worthy observation to make in such a debate. I say that the views of the Foreign Office may unduly influence the Secretary of State in a matter which in the end—it may well be one day a very sticky end—must remain plainly for the Home Secretary and the Home Office.959
§ Finally and less seriously, the putting down of the amendment may enable the noble and learned Lord, Lord Elwyn-Jones, who has just returned from the United States, to tell the House whether, in the light of the invitation extended to him by the noble and learned Lord the Lord Chancellor in the last debate, he had the opportunity to make any representations to the American Government and to report to the House the outcome of his Welsh wizardry.
§ 5 p.m.
§ Lord Elwyn-Jones
My Lords, I hope that the noble Lord will permit me to say that there was no opportunity for that wizardry to be exercised. In the high-powered discussion on the American Constitution, try as I did the opportunity never arose and I shall therefore not be able to assist the House on that matter.
§ Lord Hutchinson of Lullington
My Lords, I am grateful for the intervention but I am disappointed to hear the answer. It is not often that the advocacy of the noble and learned Lord is not given an opportunity—and when it is it usually succeeds.
As regards Amendment No. 8, I am fearful of the wording, though I will support it if that is all that we can get. However, I can visualise them difficult situation that might arise if someone were to be sent back and executed. I think it would be embarrassing for the Secretary of State to have to get up and say, "I was reasonably satisfied that the death penalty would not be carried out" In the circumstances, I am not sure that the words of the amendment fill the bill. I beg to move Amendment No. 6.
§ Lord Mishcon
My Lords, I observe that Amendments Nos. 6, 7 and 8 are grouped together. Therefore, a short speech may be opportune to deal with the general matters raised by the noble Lord, Lord Hutchinson, and also with Amendment No. 8.
I adopt from these Benches all the arguments advanced by the noble Lord. I merely wish to add that if it be a practical difficulty at this moment when the Bill is before the House at Third Reading that undertakings should be obtained from the United States Federal Government in respect of what a state court or a state legislature may do, I should not want—and I believe your Lordships would not want—the spirit of the amendment to die with the amendment. Therefore, Amendment No. 8 is the alternative, which is the requirement that there should be reasonable satisfaction on the part of the Secretary of State that the death penalty will not be carried out.
That means that we support Amendment No. 7 if the noble and learned Lord the Lord Chancellor is able to say that the procedure has now been eased in the United States and such an undertaking is procurable. If he cannot say that, in order that something may be done, we should then invite the House to vote in favour of Amendment No. 8 unless, as one optimistically hopes, he is able to accept the amendment.
§ Lord Hailsham of Saint Marylebone
My Lords, I make this speech interrogatively and I make it now in 960 order that my noble and learned friend on the Woolsack may reply to my difficulties. I fully appreciate the depth of feeling which reference to a death penalty invariably raises in different parts of the House. I should not wish to say anything which was offensive in connection with that debate. However, I should like an answer to the question which I wish to put.
We have not abolished the death penalty in this country; it remains applicable in matters of treason but I think I am right in saying that it is not applicable as regards anything else. Secondly, international law, so far as I understand it—I am not sure how many people do—is based on the internal sovereignty of international persons; that is, sovereign nation states. The problem is not confined to the United States and I am not sure that the United States is the best example. The arguments which have so far been addressed to the House have related only to the federal nature of its constitution.
Anybody who has had the duty of sitting in the Judicial Committee of the Privy Council knows that it is overcome, either by way of petition for special leave or by way of substantive hearing, with a very large number of murder cases, as regards which we have abolished the death penalty in this country. Those cases come to us from the Caribbean. The accused person has the right of having his conviction quashed because the death penalty, as I understand it, is mandatory there. I believe that to be a very useful service which the Judicial Committee of the Privy Council give to Caribbean countries.
We are not concerned there with the penalty for obvious reasons; we are concerned only with appeals against conviction. However, there are a number of other countries which come to us in the Judicial Committee—for instance, there are countries in South-East Asia which belong to the Commonwealth or which have until recently—and there are some countries which still apply the death penalty in drug cases.
One must face the fact that under international law as I understand it to be—I speak subject to correction from my noble and learned friend—those penalties are mandatory. I think that under international law it is for the sovereign country concerned to decide whether the death penalty applies within its boundaries. I think I am right in saying that until this Bill came before the House, and assuming that the prima facie rule was still in operation, it would have been necessary in the ordinary case under the conventions applying to international behaviour to return a subject, provided that that subject was subject to the law of the state concerned. I may be wrong; I should like to be corrected if I am.
I see real difficulties in that matter and I should like to have them clarified. I do not think that the noble Lord, Lord Hutchinson of Lullington, by brushing aside what he describes as the influence of the Foreign Office, was doing those difficulties intellectual justice. Without trying to enter into the discussion on the merits or otherwise of death penalties, I invite my noble and learned friend to deal with the problem as I see it.
§ The Lord Chancellor
My Lords, my understanding of the general position is that the Secretary of State 961 has a discretion to extradite a person from this country. In exercising that discretion he has a right to take account of every matter bearing on the desirability of the extradition which is at issue. One of the matters might well be the position with regard to the death penalty in the country to which extradition is sought.
From what I have been told on behalf of my right honourable friend, the Home Secretary, my understanding is that the difficulty has been highlighted by these amendments. It is an important matter for the House to consider and I certainly have no intention of suggesting that it is other than a very worthy subject for consideration. The difficulty has arisen in relation to the United States.
The Federal Government of the United States are not in a position to give an undertaking on behalf of the state concerned about whether the death penalty will he carried out. They undertake to convey to the state authorities the feeling and concern of the Home Secretary. That feeling and concern is conveyed to the tribunal in the state on behalf of the government of that state when the fugitive is returned there and is being dealt with. In practice when these views have been expressed, even on conviction there has not been any question of the death penalty being carried out on someone who has been extradited.
My noble and learned friend Lord Hailsham is very likely correct in what he says generally about the position of sovereign states. The complete discretion of the Home Secretary in these matters will normally enable him to deal with these circumstances as they arise.
The difficulty in the United States is compounded by the fact that in a sense the Home Secretary gets the best that he can from the party he is dealing with; namely, the Government of the Federation. But because of the constitution that party is unable to hind in any particular way the state concerned. A practical solution has hitherto been found.
This is a matter which concerns very much my right honourable friend. I think he would share the view of the noble Lord, Lord Hutchinson of Lullington, that the terms of Amendment No. 8, which is an alternative in form to Amendment No. 7, would create an uncomfortable constitutional situation for him in a case where there was a risk involved.
I mentioned last time that the noble and learned Lord, Lord Elwyn-Jones, was going to the United States and that if some solution to this problem arose during the course of his visit it would be extremely welcome. I do not think it surprises any of us that in the very short time at his disposal a problem as difficult as this proved even beyond his powers to resolve immediately.
The situation is that my right honourable friend is concerned about this matter, as I have said, and if your Lordships were willing to leave it with him at present he will endeavour to bring the matter forward. It is not at all an easy matter, as I am sure noble Lords appreciate. He will do his best to advance the situation. He knows the feelings of your Lordships and he will have the opportunity of knowing the amplification of them as given today.
I hope that the noble Lord will feel that this very difficult question can be left in that way.
§ 5.15 p.m.
§ Lord Hutchinson of Lullington
My Lords, I express my gratitude to the noble and learned Lord for the way in which he has phrased his reply. In view of what he says I do not wish to press the amendment.
Let me just say that it appeared until now that the American Government had found a way around the problem and the British Government had found a way to achieve a proper solution in each particular case. It seems to those of us who support this amendment that the proper way would be to put this matter into our law and then the American Government would again find a way of resolving their problem having regard to the legislation which we had passed. if they can find a way in one case it occurs to me that they might be able to find a way in another. The onus should be put upon them rather than upon us.
§ The Lord Chancellor
My Lords, with the leave of the House perhaps I may respond to that. That is an option which my right honourable friend the Secretary of State will have very much in mind as a possibility.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 7 not moved.]
Lord Mishcon had given notice of his intention to move Amendment No. 8:
Page 11, line 6, at end insert (", unless he is reasonably satisfied that the death penalty will not be carried out.").
§ The noble Lord said: My Lords, in view of what the noble and learned Lord has said in addressing some of his remarks to the noble Lord, Lord Hutchinson of Lullington, and obviously meaning them for all those who are interested in this amendment on all sides of the House, I shall not move the amendment.
§ [Amendment No. 8 not moved.]
Lord Harris of Greenwich moved Amendment No. 9:
Before Clause 42, insert the following new clause:
§ (" Right of appeal against minimum recommendations in murder cases.
§ .—(1) A person in respect of whom a court has made a recommendation to the Secretary of State under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 may appeal to the Court of Appeal against the recommendation.
§ (2) On an appeal under this section the Court of Appeal may—
- (a) quash the recommendation which is the subject of the appeal: and
- (b) in place of it make such recommendation as they think appropriate.").
§ The noble Lord said: I beg leave to move this amendment. This is an issue which we debated at the Report stage of the Bill and we are returning to it this evening. The amendment is in a rather different form to the one which we debated on the last occasion. I will deal with that matter in a moment.963
§ The purpose of this amendment is fairly simple and straightforward. It is to give a person sentenced to life imprisonment and who has had a minimum recommendation attached to that sentence by the trial judge the right to appeal to the Court of Appeal.
§ At the last stage of our proceedings the amendment provided in addition that the minimum recommendation could not be increased. The noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord, Lord Simon of Glaisdale, indicated their concern about that aspect of the amendment. When we reflected upon it we came to the conclusion, for a whole variety of reasons which I do not intend to spell out this evening, that there was no necessity to stick to that particular form of words and so we have dropped it. I am sure it will have been observed that following that the noble and learned Lord, Lord Simon of Glaisdale, has attached his name to this amendment.
§ There are two principal reasons why we believe this amendment to be important. The first is because of the decisive significance of these minimum recommendations. This was a matter which was touched on during our last debate. Those who were present on that occasion will no doubt recall the fact that between 1965, which was the year in which minimum recommendations were introduced following the passage of the Murder (Abolition of Death Penalty) Act, and the end of last year there were 244 minimum recommendations and in only seven cases were prisoners released before that recommended period had elapsed.
§ In some of those cases there were special reasons and that was also dealt with on the last occasion. Those special reasons influenced the Home Secretary to disregard the view of the trial judge. There were very unusual characteristics too to some of these cases.
Home Office Circular No. 55 of 1984 stated:
The expectation is that a prisoner in respect of whom a minimum recommendation has been made will be detained for at least that period unless there are good reasons for doing otherwise".
§ As I indicated on Report, my own experience confirms that. As I said on that occasion, having presided over the joint committee between the Parole Board and the Home Office, we considered many hundreds of such cases. We looked at about 800 cases in that period, and I can recall no occasion on which my colleagues did not regard those minimum recommendations as decisive. Therefore, these recommendations have a most powerful influence on the Parole Board. Its role in the matter is critical, because without an affirmative recommendation from the Parole Board, the Secretary of State cannot release a prisoner from custody on life licence. Not only does the minimum recommendation have that effect on the Parole Board, it has an equally decisive influence on the Secretary of State.
§ That brings me to the second reason for our concern. I refer to the report of the Criminal Law Revision Committee in its report Offences Against the Person which was published in 1980. The Committee pointed out that some judges never make minimum recommendations, and that others rarely do so.964
§ If I may break off to remind the House of the view of the Advisory Council on the Penal System, it pointed out that in some of the most notorious cases involving the Moors murderers, the Hosein brothers, the Birmingham bombers and so on, no minimum recommendations were made by the trial judge.
The CLRC said:
The gravamen of the criticism is that its operation, being haphazard, is unjust.
I give the committee's own illustration of this problem. Let us take the case—and this is to some degree the committee's language—of two murderers, A and B. They are tried and convicted in different courts for almost the same kind of killing. Murderer B comes before a judge who will not make a minimal recommendation, whereas A is convicted in exactly the same circumstances but the judge takes a different view and in that case makes a minimum recommendation of 20 years. We now come to the situation when many years later, these two cases are being examined by the Parole Board and possibly by Home Office Ministers. The prison reports show that in neither case is the prisoner concerned likely to commit a further offence. In many other respects the circumstances are still remarkably similar.
§ As the CLRC observed, prisoner A—that is, the man with the 20 year minimum recommendation—is less likely to be recommended for release than B, who had no minimum recommendation. However, the situation is even worse than that. We have the situation in which had prisoner B appeared before A's judge, and vice versa, the roles would have been reversed. In that case, prisoner B would have received the 20 year minimum recommendation and prisoner A would probably have secured an earlier release.
How can we possibly justify such a truly bizarre situation, made all the worse because at present there is no right for those prisoners to have the right to have their cases considered by the Court of Appeal? On Report, the noble and learned Lord, the Lord Chancellor, said:
I wonder whether it is right for us to go ahead and make this change to one part of the present system without making changes to the rest of it
Later, he said:
I wonder whether it is right on the basis of the present system to make this change in isolation. It would be useful to know what those noble Lords with experience of the Parole Board—we are happy and privileged to have the benefit of the presence of no fewer than three of them—may have to say about that."—[Official Report, 19 11/87; cols. 838–339.]
As the noble and learned Lord will recall, it was made clear by all three of us—the noble Lord, Lord Windlesham, my noble friend Lord Hunt and myself—that we see grave problems about the present arrangements. At an earlier part of our proceedings we were joined by the noble and learned Lord, Lord Roskill—a former vice-chairman of the Parole Board, who also has substantial experience on this matter. If the noble and learned Lord the Lord Chancellor is prepared to make an announcement today that he is prepared to have a form of wider review of these matters, we shall be satisfied with such an assurance. However, I do not believe it is possible to allow this legislation to pass in its present form
without these weighty matters receiving the serious attention of the House. I beg to move.
§ Lord Morton of Shuna
This amendment is grouped with Amendment No. 10, which is in my name along with my noble and learned friend Lord Elwyn-Jones and my noble friend Lord Mishcon. This side of the House supports Amendment No. 9. There is a right of appeal in Scotland against such a recommendation. It has been used and, so far as we are aware, has caused no difficulty.
The difficulty that has arisen in this House follows from the private recommendations which are now made in every case in which life sentence is imposed. The noble Lord, Lord Windlesham, told the House of that both in Committee and on Report, (reported in Hansard on 27th October, in col. 420, and 19th November, in col. 326). Therefore, now, in every case in which a life sentence is imposed, whether that life sentence is imposed for murder or some other offence, it is a requirement, to use the words of the noble Lord, Lord Windlesham, that the judge provides a recommendation to the Secretary of State as to the sentence that should be served by the prisoner and that that private recommendation is acted on by the Parole Board in the same way as the public open recommendation which is concerned in Amendment No. 9.
It is to deal with that situation that we have put forward Amendment No. 10. That attempts to give a right to the prisoner serving a life sentence to know what the recommendation is and a right to appeal against that recommendation, in the same way as there should be a right to appeal against the public recommendation dealt with in the Murder (Abolition of Death Penalty) Act.
It may be, as was suggested in Committee, that one way to deal with the matter is to remove the right to make a recommendation, but I am not in favour of that because a trial judge must have a view which is worth listening to on what he means when imposing a life sentence. I suggest the way out of the difficulty is by Amendment No. 10, or some such words.
§ 5.30 p.m.
§ Lord Simon of Glaisdale
My Lords, on Report I supported the purport of Amendment No. 9 but, like the noble Lord, Lord Boyd-Carpenter, I found it difficult to accept the last provision that was then in the amendment as it was inconsistent in spirit with the decision that your Lordships had taken to allow appeal by the prosecution against an over-lenient sentence. Amendment No. 9 now comes forward without what both the noble Lord and I found to be a ground for objection. The noble Lord, Lord Harris, has argued that point with complete persuasiveness.
The only difficulty is that, as a result of the statute abolishing the death penalty, there can be no question but that the law and the practice (the judicial and the penal background in this country and for all I know in Scotland too) is in a mess. My noble and learned friend on the Woolsack undertook to investigate the matter. Your Lordships will have full confidence in his investigations. As the noble Lord, 966 Lord Harris, said, if he can tell us something today, so much the better. But it is bound to take some little time before the matter can be sorted out. In the meantime, recommendations are being made in the circumstances described by the noble Lord, Lord Harris, which have a profound effect on the liberty of the accused person. In those circumstances, it is unanswerable that he should have a right of appeal against an activity which can so affect his liberty.
I unhesitatingly support Amendment No. 9, despite the hesitation of my noble and learned friend on the Woolsack. I understand that he would prefer the matter to be dealt with as a whole rather than piecemeal. The objection to that is the one which I have stated; namely, that the present system will continue in the meantime. If the provision works in Scotland, I see no great objection to having it in this country.
The purpose of Amendment No. 10, as put by the noble Lord, Lord Morton of Shuna, is persuasive. I have however one reservation. We were told that the Home Secretary now consults, and has for some time, the Lord Chief Justice, and the trial judge when he is available, when the release of the accused comes to be decided. That case seems to be covered by Amendment No. 10. I do not believe that is the intention of the amendment. Subject to that, Amendment No. 10, which will probably need redrafting, is on the right lines and works well with Amendment No. 9.
We have heard not only the statistics given by the noble Lord, Lord Harris, but the testimony of two past chairmen and the present chairman of the Parole Board as to the profound influence that the recommendation made at the trial can have. Under those circumstances, common justice points towards giving the accused a right of appeal.
§ Lord Windlesham
My Lords, although the Bill does not deal with life imprisonment it is significant that at each stage we have debated new clauses which bear upon it. Amendments in Committee, on Report and now on Third Reading have aimed to make life imprisonment the maximum sentence rather than the mandatory penalty for murder, and either to eliminate the power of the court to recommend a minimum period which should elapse before the Home Secretary releases a convicted life-sentence prisoner or, if that power is retained, to make it subject to appeal.
In the course of these debates, profound, well-informed and devoid of party politics, as they seemed to me, widespread dissatisfaction has been expressed at the current state of the law and administrative procedures. Criticism from all parts of the House has been directed, in particular, at the newly adopted practice by which in every case when a life sentence is imposed, whether mandatory or discretionary, the judge is asked to write at the conclusion of the trial to the Home Secretary, through the Lord Chief Justice, giving a view on the period of imprisonment believed to be necessary to meet the requirements of retribution and deterrence.
The private nature of that communication, as well as its universality, is what distinguishes it from a 967 minimum recommendation made by the judge in open court, which applies only in cases of murder. The practical effect is the same. The noble Lord, Lord Harris of Greenwich, described it as decisive when he moved the amendment. Thus a minimum period of imprisonment is prescribed. It is known for convenience as the "tariff-. I wish there were another word for it, but that is the shorthand expression which is used. The tariff refers to the period of time which the prisoner must serve before his case can be considered for possible release on life licence. It is only then that the Parole Board will review his case, primarily on the basis of the risk to the community if he is released. The trial judge and the Lord Chief Justice will be consulted again, as they must be by law, before the Home Secretary can release any life-sentence prisoner.
On Report I tried to disentangle the diverse strands in the way that life sentences are administered, noting in particular the contributions that are made by the judiciary at various stages in the process. Although, as I have previously argued, the present system has grown up piecemeal, the elements are related to one another and inevitably have an effect on the working of the system as a whole. It is overlooking that reality which has to some extent brought about the present thoroughly unsatisfactory situation.
To legislate on one aspect only runs the risk of causing other irregularities. As I have thought about this subject, as other noble Lords who have taken part in these debates no doubt also have done, I have come to the conclusion that what is now needed is a comprehensive review—I use that word advisedly—of the whole subject. It should embrace the law on homicide—we must begin there-especially the distinction between murder and manslaughter and the implications of a single offence of unlawful killing. It should consider the penalty for murder, especially the arguments for or against the mandatory life sentence. Then there are the recommendations or the advice given to the Home Secretary by the trial judge and the question of whether this advice should be in private or publicly on record. Finally, the administrative arrangements for determining the duration of the period to be spent in custody by life sentence prisoners also need to be reviewed.
When we discussed this issue on Report the noble and learned Lord the Lord Chancellor speaking for the Government said:I believe that the law in this area requires review and very serious consideration. The precise machinery of review is a matter on which your Lordships' views would be important".—[Official Report, 19/11/87: col. 319.].I should like to propose that the best way forward is to establish a Select Committee of your Lordships' House. That would enable Parliament, not the Government, to discharge its proper constitutional task of investigating the practices of Ministers and the role of the judiciary, as well as the framework of the law. Since the higher judiciary sit in this House, and since they are forbidden to do so in another place, Law Lords past and present would also be enabled to contribute from the standpoint of their special knowledge and experience.
968 If when the noble and learned Lord on the Woolsack replies, he is able to hold out some encouragement for an inquiry on these lines—I appreciate it is not entirely in his gift, but the tone of his response will be important—it may not then be necessary to test the opinion of the House on these amendments.
§ Lord Monson
My Lords, as someone who believes like the great majority of people in this country that punishments for the worst examples of murder—the Hyde Park and Regent's Park bombings, for example or the Fordingbridge murders—ought to be more, rather than less, severe, I confess that I have mixed feelings about the amendment.
When the noble Lord, Lord Harris of Greenwich, or any of the other noble Lords who have put their names to Amendment No. 9 reply perhaps they can say whether they interpret their amendment to mean that the Court of Appeal would be able to recommend a longer minimum period of imprisonment, in the event of an appeal, as an alternative to a shorter minimum period. If the amendment means that the minimum period could be adjusted upwards as well as downwards then I should by happy to support the amendment, but not otherwise.
§ 5.45 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I ventured to say to the House what I thought about this subject when the House was in Committee on the Bill. I stand by what I said then: I think that a comprehensive view of the law of homicide is overdue for the reasons which I gave on that occasion. We must remember that life sentences can be imposed for offences other than homicide. That cannot be altogether overlooked in this debate.
Having said that, I believe that we must grasp this nettle fairly quickly and preferably now. I do not think that either of the two practices in relation to homicide, which have been more particularly described by the noble Lord, Lord Harris of Greenwich, can be justified in principle. Perhaps I may deal with the private recommendation first. I think it is wholly objectionable that without publicity of any kind—and as I understand it without the convicted person necessarily knowing—there should be a private recommendation from the trial judge to the Home Secretary, however wise the trial judge may be, and however good the Home Secretary may be. I think that that is an objection in principle.
On the possibility of the public recommendation in cases of conviction for murder, there are the objections raised by the noble Lord, Lord Harris of Greenwich. With respect, the name of that game is slightly different because the name of that game is consistency. What the noble Lord, Lord Harris of Greenwich, has succeeded in establishing is that that consistency does not at present exist. Of course the Home Secretary of the day will exercise whatever wisdom he may in consulting either with the Lord Chief Justice or the trial judge and indeed with the Parole Board in the manners described. But basically speaking, it is in the first place for the Court of Appeal (Criminal Division) to impose some degree of 969 consistency on what judges actually recommend. That cannot be done without a public right of recourse to the Court of Appeal (Criminal Division). There must be a public right of recourse. It can grow only out of a jurisprudence—if I may use the word in one of its two distinct meanings—based on case law and on the examination of the matrices of fact in which the different offences of murder can be committed.
It is not for me to seek to bring pressure on my noble and learned friend on the Woolsack or on the Government. However, this nettle has to be grasped. I should vastly prefer that it were grasped now and that a more general review should also be undertaken, if need be independently of these two amendments, and independently of the better amendment which the Government prefer.
§ The Lord Chancellor
My Lords, in these amendments we are in a very difficult area. When Parliament decided to substitute the mandatory life sentence for the previous sentence in respect of murder it put the responsibility on the Home Secretary to decide how long a person should serve before he was released, and on the Home Secretary that decision still rests. It is his responsibility to take the decision.
However, in Section 6(1) of the Act Parliament provided that before deciding to release a person who had been sentenced in that way, the Home Secretary was to consult the Lord Chief Justice, and the trial judge if he were available. Accordingly, from the beginning an obligation to consult the Lord Chief Justice, and the trial judge if available, was imposed on the Home Secretary, but that did not remove from the Home Secretary the responsibility for taking the decision. It meant that he had to consult these two persons if both were available.
The Lord Chief Justice, by virtue of his position, would certainly be influential in any hearing that took place in the Court of Appeal (Criminal Division) in which he was sitting. As I understand it, under the present system—and I am subject to correction by those better informed if I have not understood it correctly—the trial judge normally makes such a recommendation—should he do so—in private through the Lord Chief Justice. It goes to the Secretary of State as a recommendation upon which the Lord Chief Justice also expresses a view. I believe that it is from that process that the so-called tariff arises. I am not criticising the word because the noble Lord who used it did so with a certain amount of caution, and I too should like to underline his caution. The Lord Chief Justice makes recommendations, as I understand it, in every case in the pursuance of the duty which Parliament has laid upon the Home Secretary to consult him.
As I understand the present position—this may vary and has varied somewhat over the years—lit is on that recommendation, coming from the Lord Chief Justice, together with the recommendations from the trial judge that the Home Secretary proceeds. He is not bound by that recommendation either way, but it is an important factor as Parliament has given it 970 importance. The result is still the Home Secretary's responsibility.
In the exercise of that very heavy responsibility the Home Secretary has to consult the judges. but he is not confined by the consultation that he has. One would expect him, for example, to consult among other bodies the Parole Board which he must consult and people who have had the charge of the person sentenced in the course of his prison career. There may be medical authorities to be consulted and a number of other people whom it would be right in a particular case for the Home Secretary to consult. To reach a wise and just conclusion in the circumstances of any case the Home Secretary may need to consult a wide range of interests.
The present situation is that in addition to that basic arrangement an option is given to the trial judge in public to make a recommendation of the minimum period that the accused should serve. As we know from what we have heard, trial judges vary considerably in whether they exercise that power. If they do exercise it they may vary the minimum recommendation imposed. There may be a number of reasons why trial judges who would consider imposing a minimum recommendation would not do so in an individual case.
The primary purpose of the minimum recommendation is to mark in public the judge's sense of the particular case before him. My information is that that minimum recommendation expressed in public is not now so important in the process as it may once have been in view of the system that I have just described of what I call private consultation with the Lord Chief Justice and the trial judge.
If the first amendment proposed by the noble Lord, Lord Harris—with his great experience on this matter in the background—is accepted, the result will be that the judicial process will fasten on some of the minimum recommendations and they will be taken to the Court of Appeal, Criminal Division. There will thus be an additional judicial input into a number of these cases giving the minimum recommendation, if the Court of Appeal were to endorse it, even more authority than it has now, rather than cutting down its decisiveness. If the recommendation were a Court of Appeal, Criminal Division, recommendation it would be expected to be even more decisive. But would one expect it to be any different from what the Lord Chief Justice would think appropriate on statutory consultation?
I was particularly concerned about that point when I spoke on Report stage when I asked what the noble Lord, Lord Harris of Greenwich, referred to as a rhetorical question of the three distinguished chairmen of the Parole Board who we were privileged to have with us. Looking at the system as a whole, does it make for a more just system as a whole if particular cases should be considered not first and only by the trial judge, but that some of these should in addition be considered by the Court of Appeal, Criminal Division? I doubt whether that is so. Although I knew the general approach to the amendment that the chairman had, it was the 971 approach to that question that I was especially interested in at that stage.
There is another aspect to this matter that I should like to mention. In 1980, as has been said, Parliament gave in Scotland a right of appeal against the minimum recommendation. When I came to this problem first in recent weeks, as your Lordships will imagine, I came with a feeling that what was right for Scotland might possibly have something to commend it for England.
However, there is a possibility of more mature consideration than that. There are important differences between the two. The general rule in Scotland has been that sentences may not be increased by the Court of Criminal Appeal when it deals only with convictions. But if somebody appeals against sentence and the appeal is refused, the Court of Appeal in Scotland, generally speaking, has the right to increase the sentence, although I do not think it uses that right very often.
This is the position: on appeal against conviction, a sentence more severe than the first sentence cannot be imposed. When the sentenced person appeals against sentence and that appeal is refused, the Court of Appeal may increase the sentence. That is simply as a result of the accused person appealing on sentence. That is the general position in Scotland. The device used in the 1980 Act was to make the minimum recommendation part of the sentence and therefore it was dealt with in general in the same way as any other sentence.
In England, on the contrary, the position as I understand it is that when an accused person appeals there is no power in the Court of Appeal Criminal Division to increase the sentence. That is to say that the mere fact a person appeals does not create in the Court of Appeal Criminal Division the right to increase a sentence. That is an important distinction in the generality between Scotland and England.
It is true that your Lordships have approved a clause in the Bill which gives the Attorney-General power to bring what he regards as too lenient a sentence before the Court of Appeal Criminal Division, and with leave of that court a question may be entertained on whether or not the sentence should be increased. But that does not affect the ordinary situation when the appeal against sentence does not involve the possibility of an increased sentence.
Your Lordships will see that it is quite difficult to fit what is being suggested here into either of these categories. It seems strange to say that this minimum recommendation provision should be treated differently from any other form of sentence in general, yet that is what the clause would do because it is not a condition of putting the sentence up that the Attorney-General should think it too low nor is there any provision for seeking to bring all these minimum recommendations subject to that clause. There are important differences in principle between the two jurisdictions. I think I am right in saying—but I am subject to correction—that in Scotland the Court of Appeal has not altered these minimum recommendations. If I am wrong, I shall be corrected. Although there is judicial machinery for effecting a change, in 972 fact none has taken place. In that situation, I feel that your Lordships might be damaging the system by obliterating or appearing to obliterate the emphasis which presently rests on the ultimate decision of the Secretary of State.
He is charged by Parliament with the ultimate decision. Should your Lordships do anything to fetter or impair his judgment in that matter? He has to consult. He has to have regard to minimum recommendations, although he is not bound by them. My information is that in present circumstances they are not decisive in the sense that the Secretary of State would be minded to give effect to them rather than to the views of the Lord Chief Justice and the trial judge transmitted to him on consultation. My right honourable friend will certainly note carefully the views which have been expressed to him with regard to the whole position. It is within his power to alter from time to time in the light of experience the administrative arrangements necessary to a fair discharge of the heavy responsibility which is put upon him.
Your Lordships' suggestions—in particular, the suggestion of the noble Lord, Lord Windlesham, of an inquiry by a Select Committee of the House—are matters which your Lordships may think should be pursued. It would be for the House to consider whether or not a Select Committee should be set up. Such a form of inquiry has obvious advantages, as the noble Lord, Lord Windlesham, pointed out. But as regards the present position. I put it to your Lordships that Parliament has left this matter ultimately with the Secretary of State. Is it not right that he should have that responsibility and that nothing should be done to impair the overall justice which he is able to secure in the exercise of his discretion as Secretary of State?
In those circumstances I am minded to advise your Lordships against approving these amendments at the present stage. I can assure the House that my right honourable friend has this subject very much in his mind. It is naturally central to his responsibilities and he considers it carefully. But having consulted with him I think I am putting fairly his point of view to your Lordships today. I hope that your Lordships will feel able to accede to that advice.
§ 6 p.m.
§ Lord Harris of Greenwich
My Lords, I am slightly disappointed with that reply. I recognise of course that the noble and learned Lord the Lord Chancellor is not ministerially responsible for these matters. On this occasion he is acting as a spokesman of the Government rather than as the departmental Minister. Nevertheless, his reply I believe did not take fully into account, as I had very much hoped it would, the powerful speech made by the noble and learned Lord, Lord Hailsham.
The noble and learned Lord raised a number of issues. He said that the present situation is a mess, as I think we all recognise it is. I very much hoped that, on the basis of what he said and the general concern expressed both at Report stage and Third Reading, the noble and learned Lord would have gone slightly further and would have indicated his willingness to discuss this matter again with the Home Secretary to 973 see whether any progress can be made. I take the noble and learned Lord's point that we are dealing with just one aspect of the matter as regards this amendment. That is undoubtedly true. But as I explained when moving the amendment the position is profoundly unsatisfactory and in my view wholly unjust.
We have also this extraordinary position of judges making private recommendations to the Home Secretary, the contents of which, to answer the question posed by the noble and learned Lord, Lord Hailsham, the prisoner does not know. At least in the case of a minimum recommendation by the judge, the prisoner knows what the judge is recommending. But he is then not in a position to appeal that matter to the Court of Appeal.
The noble Lord, Lord Windlesham, suggested that we might have a Select Committee of the House. The noble and learned Lord the Lord Chancellor said this was obviously a matter for the House itself and for the Leader of the House. If one were told that there was some possibility of that suggestion being proceeded with, none of us would wish to press this matter today. I see no advantage on occasions such as this in simply voting for the sake of voting. In matters of this kind involving the criminal law I prefer to proceed with some degree of consensus. If the noble and learned Lord were to indicate that he would have discussions following this debate both with the Home Secretary and with the Leader of the House taking account of the point made by the noble Lord, Lord Windlesham, I would choose not to press this amendment today.
§ The Lord Chancellor
My Lords, my right honourable friend is very much concerned to see that a just system prevails. I undertake to bring to his attention all that has been said today including the suggestion by my noble friend Lord Windlesham of a Select Committee to examine the position which I shall also bring to the attention of the Leader of the House.
§ Lord Harris of Greenwich
My Lords, as I have indicated, I do not believe in having Divisions for the sake of them. I would have preferred the noble and learned Lord to have gone further. I understand his problem, but given what he has just said I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 10 not moved.]
§ Clause 42 [Firearms offences]:
Lord Monson moved Amendment No. 11:
Page 28, line 13, leave out ("Life imprisonment") and insert ("20 years").
The noble Lord said: This is the same amendment as the one tabled at Report stage by the noble and learned Lord, Lord Elwyn-Jones, the noble Lord, Lord Morton of Shuna, and myself, which was not moved because of the lateness of the hour. I do not propose to repeat the arguments against the change in the law proposed by the Government, which would
make a man carrying a gun feel that he has nothing to lose by pulling the trigger of the gun—and shooting to kill—so as to avoid arrest. However, powerful support for our argument comes in the form of a recruiting advertisement for the Metropolitan Police published in last Sunday's Observer colour magazine. Dangerous men armed with guns are mentioned and the advertisement warns the would-be recruit, and I quote:
If your man thinks he'll go down for a long time he may shoot you rather than he captured. He's got very little to lose".
I do not think our case could be put better.
§ The noble Earl's right honourable friend the Home Secretary could be right and the Metropolitan Police wrong, or it could be the other way round. I would put my money on the police, given their rather greater experience on the ground.
§ There is a further point which I think is often overlooked. The public are fairly cynical about life imprisonment, about which we have been talking so often over the past few weeks. They know full well that "life" does not mean life. When a person has been convicted merely of carrying a gun which has not been used, they will be virtually certain that in practice life will not mean anything remotely like life. In contrast a long determinate sentence of 13, 14, 15, 18 or 20 years is not only much more awe inspiring but also much more credible. For that reason it is surely a much more effective deterrent.
§ Originally, like the noble Lords on the Alliance Benches, I felt that the present maximum of 14 years ought to stand. However, on reflection, I have concluded that what might be called the Labour compromise of a 20-year maximum is the right one. I do not know whether Labour still feels that its admirable compromise is right. All the same, I beg to move.
§ Lord Elwyn-Jones
My Lords, I supported this proposal at an earlier stage of what has been a long pilgrimage from the beginning to the end at last of the consideration of this Bill. In my view it seems odd that there should be no difference between the possible maximum penalty for the person who carries the gun and the person who actually uses the gun in furtherance or in the course of crime. There is a total abandonment of the principle of proportionality which we try to apply to the criminal law.
The second anxiety I have is one which was expressed earlier. If life imprisonment were substituted for 14 years—and the amendment suggests 20 years—the result of that would he to reduce any incentive for an offender to refrain from using the gun as a means of escape and to put police officers and members of the public at even greater risk than the risk they undergo at present.
On the whole, and in the interests of consistency in the criminal law and in the possible practical effects of what we propose, I should have thought that a better safeguard for the public and for the police would be to raise the penalty certainly to 20 years but not go for life imprisonment, which ought to be reserved for the most grave offences.
The Minister of State, Home Office (The Earl of Caithness)
My Lords, the noble Lord, Lord 975 Monson, has argued that the increase to life imprisonment for these firearms offences is unnecessary and disproportionate and that it will endanger the lives of police officers. I do not agree that that would be the case. I do not believe that the increased penalty will act as an incentive to pull the trigger. On the contrary, it should be a disincentive to the criminal to carry a gun in the first place.
The signal we want to send to the criminal is that we consider that anyone who chooses to carry a gun in furtherance of crime should be liable to the most severe penalty the courts can impose. Of course that maximum penalty will not be imposed in every case; it may be used only in a small proportion of cases, but the important thing is that it should be available to the courts for the very worst cases. That is the proper test for a maximum penalty.
That is the message that we must send to the persistent carrier of firearms, who commits a string of vicious and perhaps lucrative crimes by waving a gun, never firing a shot, maybe because of luck or careful policing, but leaving terrified victims in his wake. Is it right that the court should not have available to it the maximum sentence of life imprisonment for such a case?
Of course the practised criminal will know that he will be punished in accordance with the gravity of his offence. The sentence is likely to be longer if he uses the gun and longer still if he wounds someone. If he kills then he knows that a sentence of life imprisonment will be inevitable. But nothing short of the threat of the life sentence will be sufficient to deter some such people from slipping the gun into their pocket.
The noble Lord has argued that an increase to 20 years is sufficient. I am glad that he acknowledges that an increase is necessary. I am sorry that he is not able to go all the way with us. Crimes involving firearms should be seen in a category of their own. The law has long recognised that in the case of burglary. Burglary itself attracts a maximum sentence of 14 years imprisonment. Aggravated burglary, which is burglary committed by someone in possession of a firearm or imitation firearm, attracts life imprisonment.
That seems to me a very proper distinction and I am disappointed that noble Lords opposite cannot quite bring themselves to apply it in this case. These are serious offences perpetrated by dangerous and sometimes ruthless criminals and it is right that we should show our condemnation of them by granting the courts the heaviest penalty we can. An increase to 20 years would not be such a clear signal to the criminal of the severe view the Government and this House take of such crimes. It is for those reasons that I cannot support the noble Lord.
§ Lord Hailsham of Saint Marylebone
My Lords, I would have agreed with every word that my noble friend has just said but for one fact, and that is that I do not believe that life imprisonment means anything at all at the present time. It is an indeterminate sentence which nobody can understand.
976 I believe, and I say so with great respect to the noble Lord who moved the amendment for 20 years, that I can conceive of cases where 20 years is much too little, but I believe that all sentences ought to be determinate and that the true alternative of life imprisonment is an unlimited period to be made determinate by the trial judge and subject to the Court of Appeal (Criminal Division).
§ 6.15 p.m.
§ Lord Harris of Greenwich
My Lords, if I may say so, I agree very much with the noble and learned Lord. I do not think that this proposal by the Government will strike terror into the hearts of professional criminals in the way that the noble Earl believes. As we were saying on the last amendment, there is a need to re-examine our attitude on this matter of the whole general question of life sentence policy, but I do not believe that it is sensible simply to add more and more cases into this category. I do not, as I have indicated, believe that it has the effect on professional criminals that the noble Earl believes, and as he knows, that is also the view of the Police Federation.
§ Lord Monson
My Lords, I am most grateful to the noble and learned Lord, Lord Elwyn-Jones, for his valuable support. He put the case for the amendment far better than I was able to do. I am also grateful to the noble Lord, Lord Harris of Greenwich, and also to the noble and learned Lord, Lord Hailsham, for his partial, albeit highly qualified, support.
I still find myself totally unable to accept the Government's reasoning on this matter, but unless the Opposition wish to press the amendment to a Division—which I do not imagine they do—I do not intend to go any further tonight. I hope that this clause as it stands will be fiercely contested in another place when it goes to the Standing Committee there, and with that I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Stanley of Alderley moved Amendment No. 12:
After Clause 59, insert the following new clause:
§ .—(i) In section 32 of the Game Act 1831 (persons found armed using violence etc.) for "level 1" there shall be substituted "level 4". (2) Nothing in this section shall affect the punishment for an offence committed before this section comes into force.").
§ The noble Lord said: My Lords, my noble friend Lord Caithness kindly agreed to accept a similar amendment to this at Report stage, since when parliamentary draftsmen have suggested this form of words. Needless to say I would have liked more, but as this is the second time in 13 months that the Government have modified the law regarding trespass I should like to thank my noble friend and indeed his department for their help and for their patience. I beg to move.
The Earl of Caithness
My Lords, I am grateful for the words of my noble friend and happy to accept this amendment.
My Lords, I am sorry to raise this matter so late, and I apologise to my noble friends 977 Lord Caithness and Lord Stanley of Alderley, but I have just noticed that there has been no amendment to the commencement clauses. I may be wrong but I would suggest that the nature of this new clause is very much the same as Clauses 61 and 62, the commencement of which is to come into force on the day that this Act is passed. If my noble friend would have a look at that when the Bill proceeds to another place, it might be useful.
§ On Question, amendment agreed to.
§ Clause 103 [Criminal injuries]:
Lord Morton of Shuna moved Amendment No. 13:
Page 75, leave out from beginning of line 28 to ("; and") in line 29.
§ The noble Lord said: My Lords, if I may I shall move this amendment and speak to Amendment No. 14. They fit together. This is yet another attempt to rewrite the provisions relating to railway suicide cases. The difficulty about Section 34 of the Offences Against the Person Act is, first, that it does not apply to Scotland, and, secondly, that it covers any negligent act and therefore is far wider than the purpose for which I understand it is intended in this clause of the Bill.
§ The intent of my amendment is to define what would be the conduct that I understand to be aimed at by the Government by defining that sort of situation as causing a personal injury. This is different from putting it in as an offence under subsection (2) by putting it in as a separate subsection. I beg to move.
§ The Lord Advocate (Lord Cameron of Lochbroom)
My Lords, I assure the noble Lord opposite that I stand alongside him in a search to find a better way of expressing what we are all agreed is the purpose of this subsection. I think in these two amendments he has opened up what I can describe as a promising avenue. It first of all takes away the width of the reference to Section 34 of the 1861 Act. Also, speaking as a Scots lawyer, it perhaps relieves them of what might be thought to be the irksome duty of considering the application of an English offence to incidents in Scotland.
The problem with the formulation presently proposed in Amendment No. 14 is that it goes substantially wider of the purpose for which the subsection exists. For example, the amendment would cover the circumstances of a person who was accidentally struck while stranded on a railway crossing, or of a railway employee struck by a train while working on or crossing the track. I do not dispute that they are tragic instances, but the scheme was not intended to deal with instances of that nature. It was designed to cover and compensate victims of crime.
I cannot say to the noble Lord that I can accept the amendments as they stand. However, they provide a valuable way forward by suggesting that a definition of what constitutes a criminal injury is a way of removing ourselves from the difficulties we have experienced in the past. I assure the noble Lord that if he were not to press the amendment, we shall be 978 happy to explore this avenue further because we think it has substantial possibilities.
§ Lord Fraser of Tullybelton
My Lords, I had not intended to intervene but I should like to say, on behalf of those who practise the law in Scotland, that to state that something which would be an offence in England should be an offence in Scotland is an unsatisfactory way of proceeding. It involves an inquiry by lawyers who are not accustomed to the law of England as to what the English offence is. In borderline cases the issue is difficult to determine.
To state that anything which is an offence in England, or indeed in France or Germany, shall be an offence in Scotland is a fundamentally wrong way to legislate. It is a hopeless way of legislating. I am pleased to hear what the noble and learned Lord, Lord Cameron of Lochbroom, said a moment ago. I gather that he will accept the spirit of Amendment No. 14.
§ Lord Morton of Shuna
My Lords, I am grateful to both noble and learned Lords, especially to the noble and learned Lord, Lord Fraser, for putting in stronger and better language what I attempted to say in Committee regarding the existing subsection (3). I beg leave to withdraw the amendment in the hope that now that I have shown the Government the avenue, the road-making will be better carried out.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 14 not moved.]
§ Clause 104 [Qualifying injuries]:
§ [Amendment No. 15 not moved.]
§ Clause 112 [Abolition of peremptory challenge]:
Lord Wigoder moved Amendment No. 16:
Page 81, line 36, after ("cause") insert ("or to require jurors to stand by for the Crown").
§ The noble Lord said: My Lords, the amendment was moved in Committee and again on Report. As I told the noble Earl, Lord Caithness, I move the amendment again not with any intention of pressing it but in order to give him the opportunity of clarifying certain undertakings which he gave when the amendment was moved on Report.
§ What I have to say, which will be short, may impinge somewhat on Amendment No. 18, with which this amendment is not grouped. No doubt the noble and learned Lord, Lord Silkin, will decide for himself whether he wishes to enter into the discussion at this stage on Amendment No. 18 or leave it to be dealt with separately in a short while.
§ Your Lordships will remember that, having abolished the right of the defence peremptorily to challenge jurors, your Lordships' House had to deal with this amendment which sought to abolish the Crown's similar right to stand by jurors for the Crown both at Committee and on Report. At the Report stage, after considerable debate, the noble Earl, Lord Caithness, made two substantial concessions. At the time I indicated that they very much met the problems I was posing.979
The first undertaking which the noble Earl gave was in relation to cases where the jury had been vetted because of security considerations. There have been very few such cases. Over three years only eight jurors have been challenged in jury vetting cases and that shows how unusual a circumstance it is. As regards jury vetting cases in the future, the noble Earl at col. 455 of the Official Report for 23rd November, gave the undertaking that:
the Attorney-General will expect to give authority for the removal of jurors in such circumstances personally".
§ I understand that to mean that counsel for the Crown will not stand by a juror for the Crown in a case where there has been jury vetting, except in each specific challenge with the specific instructions of the Attorney-General personally. That is a great step forward and it is a concession for which I am grateful.
§ The second concession which was made related to the cases in which the Crown occasionally stand by a juror because the Crown thinks that he may be unsuitable to serve. I understood the Minister to say that in future the Crown would take that course only in co-operation and consultation with the defence where it appeared to them jointly that a juror was unsuitable to serve. Again, that was a substantial concession and clearly met the difficulties that otherwise might have arisen as a result of the decision to abolish the defence's right.
On looking at col. 455 of the Official Report I found that the noble Earl had further said:
my right honourable and learned friend the Attorney-General would be prepared to consider revising the guidelines so that the prosecution would not stand by a manifestly unsuitable juror without the agreement of the defence".
Being "prepared to consider" had a slightly tentative air. I therefore wrote to the noble Earl and asked him whether he would indicate that the Attorney-General would undertake to revise the guidelines so that, in future, stand by would be used only in those circumstances by the prosecution and the defence jointly. The noble Earl replied indicating that that was what he had intended to say; and in a few moments he will have the opportunity of making it public so that it will appear on the record.
§ That is the purpose of my repeating the amendment today. I shall say now rather than again later that I am grateful to the noble Earl and the Government for the consideration that they have given to the amendment, and for the substantial advance that has been achieved. I beg to move.
§ Lord Roskill
My Lords, I should like to say that as the controversy arose out of one of the recommendations of the Fraud Trial Committee this is a happy solution to a difficult problem. In making the original recommendation for the abolition of the right of stand by for the Crown, my colleagues and I on the Fraud Trial Committee were moved by one consideration only; namely, a sense of fairness that if the right of the defence to challenge jurors was to be abolished, equally the Crown should be put in the same position.
I am sure that we were conscious of the point made by the noble and learned Lord, Lord Havers, the other day. We had that in mind and made our 980 recommendations, notwithstanding. However, this is a happy compromise and I am delighted that the matter should end in the way in which the noble Lord, Lord Wigoder, proposes.
§ Lord Hutchinson of Lullington
My Lords, I do not wish to be difficult, but I rise now in order not to ask the Minister a question while he is on his feet. Can he make clear to me exactly what will happen? I entirely agree that it may well be essential for the prosecution to remove a juror in a case of national security or terrorism where he might improperly use sensitive material. Everybody would agree with that. However, in the Attorney-General's guidelines there is the further ground that:the political beliefs of the jury-man are so biased as to reflect the extreme views of a pressure group to a degree that it might interfere with the fair assessment of the facts, or exert improper influence on other jurymen".That seems to me to be a much greyer area. Immediately questions arise as to what are "extreme views" and in whose view are the views so extreme, and questions as to the pressure group?
One Attorney-General might think that extreme views are of one kind and another Attorney-General that extreme views are of another kind. In those cases, should there not be an undertaking that the Attorney-General will convey to the defence the reason for his objection if it is based on what I have described and not on the improper use of sensitive material where he would not be expected to go into the matter.
§ 6.30 p.m.
The Earl of Caithness
My Lords, I am grateful to the noble Lord. Lord Wigoder, and the noble and learned Lord, Lord Roskill, for acknowledging the importance of the undertakings that I was able to give on Report about the future of stand by. As the noble Lord, Lord Wigoder, said, I undertook that in future stand by would be exercised in only two situations, first, to remove a manifestly unsuitable juror, but only if the defence agreed; secondly, to remove a juror in a terrorist or security case in which the Attorney-General has authorised a check of the jury list, but only on the personal authority of the Attorney-General.
Those are very substantial steps. They confine the use of stand by to those very rare cases in which the security of the state or the safety of an individual serving the state and at issue and where no other procedure could be relied upon; and to cases where the removal of a clearly unsuitable juror is a service to the court and is entirely acceptable to both parties. I believe these measures fully meet the views expressed by several noble Lords in the earlier stages of this Bill that once peremptory challenge has gone an unfettered right for the Crown to stand a juror by may appear to be less than even-handed. I confirm, as the noble Lord requested, that my right honourable friend will be recasting his guidance in the manner described.
I undertook on Report to reflect further on the amendment of the noble Lord, Lord Wigoder, to provide a statutory footing for the judge to direct that a challenge for cause should be held in chambers.
§ Lord Wigoder
My Lords, I was proposing to speak to that amendment separately. I have not yet moved Amendment No. 17.
The Earl of Caithness
My Lords, I apologise. I had thought that the noble Lord was speaking to both amendments.
As to the point of the noble Lord, Lord Hutchinson of Lullington, there is no intention to alter the guidelines on jury checks, nor the circumstances in which stand by can be undertaken in such cases. I can give the undertaking as to the information about reasons.
§ Lord Wigoder
My Lords, I am sure that my noble friend Lord Hutchinson of Lullington is as grateful to the Minister as I am for what he has said. I beg leave to withdraw the amendment.
§ Amendment. by leave, withdrawn.
§ Lord Wigoder moved Amendment No. 17:
Page 81, line 37, at end insert—
("(2) The trial judge shall have discretion to decide whether a challenge for cause shall be heard wholly or in part, in open court, in camera, or in chambers.").
§ The noble Lord said: My Lords, the amendment has now been stood on its head since debates started on the Bill. It was tabled originally as an attempt to deal with the situation which, if the Crown's right of stand by were totally abolished, there would nevertheless be machinery by which the Crown could stand by in jury vetting and security cases. Now that we have agreed that the Crown's right will remain subject of course to the important provisions that have just been indicated, the amendment is no longer necessary for that purpose. One assumes that in almost every case in future the Crown, if it wishes to challenge a juror, will use its right of stand by. There may be occasional cases where it may wish to challenge for cause, but probably not very many.
§ There remains the outstanding question of how a defence challenge for cause is to be dealt with. I think it is inevitable, as a result of your Lordships' abolition of the right of peremptory challenge, that there will be more challenges for cause by the defence in future. We then move into an area in which the law is not very clear and precise and in which there is little experience.
§ The discussion of Amendment No. 17 in Committee and on Report focused on whether it would enable the prosecution to exercise its right peremptorily. It seems late to start to discuss on Third Reading what the defence position will be. I do not think it proper therefore to pursue the matter further at this stage. I suggest that we leave it to the other place to consider the situation in due course.
§ I wish to make one or two comments only. It may be that on a defence challenge for cause it is desirable to have a power to hear the challenge in camera or in chambers. That will now have to be considered. The Crown Court Rules Committee might be asked to look at the question of challenges for cause and to draw up a proper procedure for such challenges, which is now lacking.982
§ I make one further observation under this heading in the hope it will be considered elsewhere in due course. Many years ago the jury list contained the occupations of the jury. That was abolished at a stroke overnight by the noble and learned Lord, Lord Hailsham, when he was Lord Chancellor without consultation with the Bar. It was abolished because it was thought that that was helping the defence to abuse its right of peremptory challenge. Now that the defence right of peremptory challenge has been abolished, it may be that the noble and learned Lord on the Woolsack will wish to reconsider reinstating the information as to a juror's occupation because it might assist the parties to the case in making a challenge for cause.
§ We are embarking on a new area and it is too late in the progress of the Bill to make much progress this evening. I look forward to the Minister's response. I beg to move.
The Earl of Caithness
My Lords, first I apologise to the House, When I replied to the noble Lord, Lord Hutchinson of Lullington, on the last amendment, I said that there was no intention to alter the guidelines and that I could give him an assurance. However, I cannot give the noble Lord that assurance. I apologise for having misled the House on that point.
To deal with the amendment, as anticipated, we have been unable to reach a conclusion between the last stage of the Bill and this stage. The matter will be looked into in another place. I shall draw to my noble and learned friend's attention the points raised about the information on occupations. This would be included with some other important issues of principle and practice that have to be considered between now and our final decision on this complicated issue.
§ Lord Wigoder
My Lords, I look forward to debating the issue again in the early days of next August. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Silkin of Dulwich had given notice of his intention to move Amendment No. 18:
After Clause 112, insert the following new clause:
§ ("Power to require a juror to stand by for the Crown.
§ . —(1) The power to require a juror to stand by for the Crown shall not be exercised except—
- (a) with the consent of the Attorney General, and
- (b) in accordance with the provisions of an Order in Council regulating the circumstances in which such powers may be exercised and providing, so far as may be practicable, that the interests of all parties are safeguarded.
§ (2) An Order in Council under this section shall not be made unless a draft thereof has been laid before and approved by both Houses of Parliament.").
§ The noble and learned Lord said: My Lords, the noble Lord, Lord Wigoder, correctly said earlier that this is a wide field. I know that the noble Earl the Minister has made it clear that this wide field will be covered much more carefully in the months to come. It gives me the opportunity to cover the field up to now so that further thought can be given to the whole area.
§ I am still very unhappy about the removal of the right to challenge not accompanied by the right to 983 stand by, not because I disagree in any way with the points made in the earlier debate but because it creates an obvious dissension between the power of the prosecution and the power of the defence, which I regard as inherently justifiable. I entirely agree that the Government have gone a very long way to produce a balance in the actual situation, even though they have not produced any balance in the apparent situation; the situation in law.
§ The purpose of Amendment No. 18 was to try to create a balance in law which the Government are seeking to create in practice and to do so by making provision that the guidelines of the Attorney-General, in relation to stand by, should be effected by the ordinary way of Order in Council.
§ Speaking very much from my own personal experience as Attorney-General, I thoroughly dislike legislation by undertakings. I like even less legislation by undertakings to produce guidelines which may be altered from time to time without Parliament having any say upon them. It is for that reason that this amendment was put down. However, I accept that the Government have gone far towards what we are proposing in practice. I think it would not serve any useful purpose to debate (or still less, to divide the House) on this particular issue.
§ I should like to make it clear that we on these Benches certainly do not accept that this solution is the best solution. I apprehend that there may well be considerable debate on this topic in another place. We certainly would not want it to be thought that anything we have said precludes that further debate.
§ Having given that explanation, I think that probably the best thing I can do is not to move this amendment.
§ [Amendment No. 18 not moved.]
§ 6.45 p.m.
§ Clause 127 [Offence of having article with blade or point in public place]:
Lord Simon of Glaisdale moved Amendment No. 19:
Page 8, line 23, leave out subsection (6).
§ The noble and learned Lord said: My Lords, I must apologise for the fact that even at this late stage this is a probing amendment. I had counted on raising the point at Report stage on an amendment tabled by my noble and learned friend Lord Denning to specify as part of the definition of "public place"—a vehicle. However, my noble and learned friend had to leave the Chamber before moving the amendment and since then the matter has been further overtaken, with astonishing promptitude. I have had a letter from the noble Earl explaining why he would like to retain this subsection.
§ All I need say is that in my view it is quite unnecessary. The courts know what a public place is, and I ventured to draw his attention to a case (which I think was called Hildebrand) before the Queensland Court of Appeal. I am not sure of that because I gave the noble Earl my only copy of the report. I merely raise the matter so that it can be considered in another place because this is no occasion to make 984 issue of what is something of a somewhat technical nature. I merely draw attention to the remarks made at Committee stage by the noble Lord, Lord Campbell of Alloway, and my noble and learned friend Lord Denning.
§ I do not know what the proper procedure is for me now and whether I should move this amendment. I see that the noble Earl is nodding his assent; but I did not follow what the noble and learned Lord, Lord Silkin, did on the last occasion. Therefore, I merely beg formally to move.
The Earl of Caithness
My Lords, it would be wrong for this amendment to leave this House for another place without me saying a word about it. I make no apology for the fact that the definition of "public place" in the clause—which the noble and learned Lord, Lord Simon of Glaisdale, now recommends we should leave out—is lifted directly from the definition of public place in the Prevention of Crime Act 1953. It seems logical that it should do so. Both the Act and Clause 127 have the same basic aim: to make public places safer by outlawing the possession of weapons and other things that can be—and regrettably are—used as weapons.
We are unaware of the definition of public place in the 1953 Act having been found to be wanting, and this is in over 30 years operation. I suggest to your Lordships that in such a situation we would therefore do best to leave it well alone. If we were now to change the definition, or leave it out. I worry that we should be casting unnecessary doubts on the adequacy of the 1953 Act. That is the reason why we believe that there is an advantage in leaving the Bill as it stands with subsection (6), rather than deleting it, because of the reference back to the 1953 Act. However, if we started with a clean sheet, without the 1953 Act. then I think we might be in a different legal field than we are at the moment.
§ Lord Simon of Glaisdale
My Lords, I hope the noble Earl will not think me discourteous if I say that I am not entirely satisfied with his explanation. But this is no time to debate this, so I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 129 [Offensive weapons]:
Lord Mishcon moved Amendment No. 20:
Page 89, line 7, after ("weapon") insert ("or imitation weapon").
§ The noble Lord said: My Lords, I shall speak very briefly to Amendments Nos. 20, 21 and 22. It will be remembered that Clause 129 of the Bill deals with the matter of offensive weapons in a way which I think commended itself to all sections of this House.
§ All that I seek to do now is to cover a great concern and that is the use of imitation weapon—the sale of them; the hire of them and the dealing with them. This is especially because they are getting into the hands of children and we are particularly concerned, not only with the training of children, but also with what happens to those children when they become juveniles. Most of us know that offensive acts and criminal acts involving offensiveness in this way—offensive conduct—are very much the participation, (if I can put it that way) of juveniles.985
§ I have managed, with the help of a certain organisation, to carry out a little research into these weapons. I am only concerned here with imitation weapons and will only recite from one paper before mc. What we are dealing with in this amendment are such weapons as: Rambo- and Ninja-style toys, which are marketed as suitable for children from the age of three upwards. Some of these toys, so I am told, like imitation rice flails and death stars can themselves cause injury. Some items in themselves can look menacing and when used, or adapted, can become an offensive weapon.
§ Flick-combs, for example, have a handle and the flick mechanisms of a flick-knife; there is a metal strip out of which come plastic-comb teeth. This is all very unpleasant. We are dealing with children and trying to protect them. Therefore, we should pass this amendment in my humble submission. I beg to move.
The Earl of Caithness
My Lords, the purpose of Clause 129 is to give the Secretary of State powers to specify weapons the manufacture, sale and importation of which will be an offence. The offence itself is comparable with the Restriction of Offensive Weapons Act 1959 which outlaws flick-knives. In our debate in Committee I mentioned hand claws, knuckle dusters and belt buckle knives as examples of the type of weapon we had in mind. What marks them out is the fact that they are intrinsically dangerous. I am not sure that imitations of such weapons are in quite the same category. It may be undesirable that they should exist but I very much doubt whether their sale needs to be covered by the criminal law with the substantial penalties, including imprisonment, which are provided by Clause 129.
It is true, as the noble Lord has said, that there are children's toys on the market which many of us would regard as undesirable and would not want to give to our own children, but again I wonder whether this is really a matter for the criminal law. At the moment I understand that all toys supplied in the United Kingdom must comply with the 1974 toy safety regulations which cover the main hazards and that other hazards are caught by the general safety requirements of the Consumer Protection Act 1987. These obviously provide protection against the physical harm which might be done by toys and it is right that the law should provide such protection. It is less easy, however, for judgments about the desirability or tastefulness of a particular toy to be expressed in legislation and I have serious doubts that sensible criteria could be evolved. In the final analysis I suspect that it may be for parents to exercise their judgment and responsibility in such matters.
This amendment would widen the scope of the clause considerably. I am grateful to the noble Lord, Lord Mishcon, for having moved it. It is a subject which needed airing and I was interested to hear the concerns that have been expressed. It would go far beyond the immediate purposes of the clause and our attempts to tackle the availability of offensive weapons capable of doing serious physical injury and take us into the very different territory of moral judgments about the suitability of toys for our children. While I sympathise with much of what the noble Lord has said, I have doubts about involving 986 the criminal law in matters of that kind, and am sure that it would not be right to deal with them within the framework provided by this clause.
§ Lord Mishcon
My Lords, I must confess that I am disappointed with the observations of the noble Earl and I do not believe that I shall be alone in this Chamber in my disappointment. This is an opportunity for the prevention of crime and therefore, in my judgment, it comes well within the purview of criminal legislation. I had hoped that if one was able to define an offensive weapon to make it an offence under the Bill, one could define an imitation of an offensive weapon in precisely the same way.
The hour is late and we have reached a late stage of the Bill, so I would not dream in these circumstances of dividing the House. I had hoped for more participation in the debate, but I repeat that the hour is late, which may have prevented people from speaking. I hope that in another place this matter will be raised and that something will be done to cover the question of imitation weapons and the protection of our children and juveniles in this way. In the circumstances, I have no alternative but to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 21 and 22 not moved.]
Lord Hutchinson of Lullington moved Amendment No. 23:
After Clause 132, insert the following new clause:
§ ("Granting and withholding bail.
§ . Where a person to whom section 4 of the Bail Act 1976 applies has been remanded in custody under section 128(1) of the Magistrates' Courts Act 1980, a magistrates' court considering whether to grant hail to that person shall not be hound by any previous decision of the court or of another court to withhold hail from that person.").
§ The noble Lord said: My Lords, in moving this amendment I should like, if that is permissible, to speak at the same time to Amendment No. 26, although they have not been grouped, because they seem to be related one to the other. Both amendments reflect different aspects of the same matter and both are directed towards an attempt to prevent an unnecessary increase in the remand population. It is because of the Minister's expression of concern over that at the Report stage that I and others whose names are down to this amendment were encouraged to put it down again.
§ To fetter the discretion of the justices in hearing an application for bail, which is what Amendment No. 23 is about because it deals with what is known as the decision in the Nottingham justices case, and to give power to keep defendants in custody up to 28 days, which is dealt with in Amendment No. 26, are provisions which I suggest will invevitably exacerbate the appalling remand situation.
§ The Minister conceded that he was greatly troubled by the extent to which magistrates' courts still continue to reply on remands in custody, notwithstanding the presumption of bail in the Bail Act. He also recognised the fact that magistrates' courts vary very greatly as regards their policy in 987 granting bail. Indeed, as he and other noble Lords know, research into this subject has produced the most astonishing results. In one court you get 60 per cent. bail granted and in another 20 per cent. in equivalent situations, in equivalent courts perhaps even on opposite sides of a town.
§ In those circumstances the Minister, quite illogically surely, still maintains his opposition, or did at Report, to getting rid of the straitjacket of the decision of the Nottingham justices, because it is quite clear that different Benches, and Benches which are composed differently even within the same area, very often have quite different approaches to the imponderables which are put before them in relation to bail applications. Some Benches are infinitely more strict than others and so often whether an application for bail succeeds depends on the composition of the Bench on that particular day.
§ The fact of the matter is that the change in circumstances, which the Nottingham decision said must be achieved for a second application for bail to succeed can succeed only if the justices come to the conclusion that there is a change in circumstances. The trouble about the phrase "change in circumstances", as I pointed out on Report, is this.
§ I quoted an article about this matter by a member of the Bar in which he set out different changes in circumstances which were held by some courts to be changes and by other courts not to be changes. Those changes were a new job, living at a new address, the fact that the witnesses for the prosecution had made their statements or deterioration in the health either of the accused or of those close to him. All those matters had sometimes been considered to be changes in circumstances but in other cases were not considered to be changes in circumstances. It is that kind of position to which the decision by the Nottingham justices has led. It is a hopelessly inexact criterion for an application for hail for justices to try to follow.
§ Lastly, the great mischief, with which I do not think the Minister dealt at Report, of the Nottingham justices decision is that solicitors do not make an application on the first appearance of an accused before the magistrates because they fear that if they make that application when they are not in possession of all the facts of which they ought to be in possession, when they come back eight days later the court will say, "The circumstances have not changed". As a result people are being kept in custody for eight days, quite wrongly but quite understandably, because the solicitors are not by that time properly instructed in their own responsible view to make a fully perfected application for bail, whereas if they had made it bail would probably have been granted in any event. But that is a mischief which is very serious indeed.
§ I ask the Minister to deal with it on this occasion because it is a mischief which means that more people are being kept in custody than ought to be kept in custody and that the remand position is being made worse as a result. It is in those circumstances that I would move this amendment, which deals with very much the same situation as Amendment No. 26.988
§ 7 p.m.
The Earl of Caithness
My Lords, it may assist your Lordships if I cite some relevant words of the Divisional Court in giving judgment in the Nottingham justices case. The question the justices should address, they said, in considering a second or subsequent application for bail is this: are there any new considerations which were not before the court when the accused was last remanded in custody? I mention this for two reasons. First, the noble Lord, Lord Hutchinson of Lullington, said that some defence solicitors do not make an application for bail on the first appearance before a court because they do not feel fully briefed on the merits of their client's case and they do not wish to prejudice a future, better developed application. As I understood the law, and I am sure noble and learned Lords will correct me if I am wrong, that degree of caution is unnecessary and, if it results in remands in custody where an application for bail might have succeeded, surely it is undesirable. A matter which was not put before the court on the first occasion may, as I understand it, be put forward on the second occasion whether or not there had been a change of circumstances as such.
My second point is that the question posed by the Divisional Court goes to the very heart of the issue. If there are no new considerations before the court, surely the merits of the application have not changed. If in a particular case there are no new considerations, why should we expect the magistrates to reach a different decision? Surely if this amendment were passed into law the courts would find themselves dealing with many cases which were no more than re-rehearsals of the same argument and which would lead to the same conclusions.
Let me say in passing that the claim that some Benches take a more restrictive view on the question of bail than others is neither here nor there on this argument. Surely we could not contemplate remand prisoners' solicitors touting their well-thumbed briefs around various Benches in the hope of finding a sympathetic ear. If a Bench relies unduly on remands in custody that is a problem, but it is not solved by diverting its customers elsewhere. That does not solve anything. It only stores up problems for other Benches. It is far more sensible and constructive to identify disparities in courts' practice and to invite them to consider the possible reasons for them. This is precisely what we have done.
Although I know the noble Lord, Lord Hutchinson of Lullington, will not be impressed by it. I should nevertheless mention the specific safeguard in the Criminal Justice Act 1982. This enables a defendant who has been refused bail by the magistrates to apply to the Crown Court. The Crown Court is not fettered by the Nottingham justices decision in the matters it may consider: applications may be made on exactly the same grounds as were before the magistrates. So if a defendant feels that the magistrates did not take proper account of the merits of his case the door is not finally closed to him. That seems to me to be the sensible approach. If a court's decision is to be reviewed, it is right that the review should be done by a higher court, not by a differently composed Bench at the same level.
989 I hope I have made it sufficiently clear at every stage of this Bill that the remand population is a matter of the gravest concern and that the Government will consider all sensible means of improving the current situation. The use of bail is certainly a most important factor. Yes, we should like to see improvements, and we are taking steps to secure them. But I believe the approach contained in this amendment would be a misdirection of effort.
First, I believe there is nothing in the current law which denies hail applicants a fair crack of the whip. Secondly, I believe the amendment would secure a tiny increase in grants of bail at the cost of a disproportionate increase in court business. Thirdly, I believe the downstream effects on other defendants, particularly in the form of delays in hearings, which would certainly result from the increased volume of court business. would far outweigh any possible benefits. In fact I am far from convinced that the net effect on the remand population would be in the direction your Lordships would hope to see.
Once again I fear I find myself in sympathy with the end of the noble Lord's amendment but quite in disagreement on the means. The perils are clear and the benefits far from certain.
§ Lord Renton
My Lords, I entirely agree with the powerful reasons put forward by my noble friend. I should only add simply that it is quite plain from the terms of the amendment that the noble Lord, Lord Hutchinson of Lullington, seems to wish to enable one magistrates' court to act as a court of appeal from another magistrates' court of exactly equivalent jurisdiction. That is quite the wrong precedent and quite unacceptable.
§ Lord Hutchinson of Lullington
My Lords, in reply to the noble Lord who has just spoken I should say that that is certainly not my desire. One always comes back to the reality of the situation. I am very sorry that the Minister has reduced this matter to such phrases as "well thumbed briefs" and "solicitors touting along to different magistrates' Benches". That perhaps gives one some idea of the view in the Home Office on this very serious matter of applying for bail.
But the trouble about this decision is, as I have tried to point out, that the phrase "no new considerations- is not a term of art. It is not something which is in fact a matter of fact before the magistrates. They are dealing with imponderables. Decisions as to whether a person is likely to interfere with a witness or is likely to turn up, or any such considerations, are not matters of facts. They are imponderables. Sometimes some Benches with experience are much more capable than others of making up their minds as between the likelihood of a person doing this or that in one direction or the other. It has nothing to do with an appealing from one Bench to another or the rather squalid idea of thumbed briefs being touted from Bench to Bench.
It is really a much more serious matter than that. I am disappointed with the Minister's approach. His approach showed absolutely no appreciation of what is going on in the magistrates' court and no 990 understanding of the factors which increase this terrible number of people who are held on remand in the most appalling circumstances. I can only say that I am extremely disappointed in the Minister's response.
Having regard to the fact that Amendment No. 26 is still to be discussed I shall not press this amendment at this stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Monson moved Amendment No. 24:
After Clause 137, insert the following new clause:
§ ("Strip and intimate searches.
§ —(1) The Annual Report of the Commissioners of Her Majesty's Customs and Excise shall contain the following information in respect of the period to which it relates—
- (a) the total number of strip searches performed under Section 164 of the Customs and Excise Management Act 1979; and
- (b) the total number of intimate searches performed under Section 164 of the Customs and Excise Management Act 1979; and
- (c) in respect of (a) and (b) above, the result of the searches carried out respectively.
§ (2) The information shall also include, as separate items—
- (a) the total number of strip searches which are drug offences searches; and
- (b) the total number of intimate searches which are drug offence searches; and
- (c) in respect of (a) and (b) above, the result of the searches carried out respectively.
(3) In this section—
strip search" means a search which involves the removal of more than outer clothing;
intimate search" means a search which consists of the physical examination of a person's body orifices.").
§ The noble Lord said: My Lords, this is the revised version of the amendment moved on Report which was supported so strongly by so many of your Lordships in various quarters of the House. It has been revised so as to remedy the omissions to which the noble Earl, Lord Caithness, drew our attention the last time around. Since tabling the amendment I have received a letter from the noble Earl in which, most gratifyingly, he indicated that statistics covering searches of the person will be published annually with effect from the financial year 1988–89. I thank him for that.
§ Nevertheless what continues to worry some of us is that the letter gave no guarantee that the additional statistics to be published from then onwards—I say additional because many statistics have to be published by law anyway—would include statistics of strip searches, other than intimate searches, which of course are already covered by the Police and Criminal Evidence Act.
§ The noble Earl went on to suggest that it would be premature and undesirable to legislate on the precise format the published figures should take. I quite agree, and that is why the amendment does no such thing. All it does is to oblige the Customs in due course—no time limit is set—to provide for new figures of between four and five digits each relating to strip searches; let us say 12,000, 3,200, 6,000 and 1,575, to give an example of the sort of figures that one might expect to see.
§ The precise format within which these figures should be presented would be entirely within the discretion of Customs and Excise. It is true that four 991 additional figures relating to intimate searches would also be required by the amendment but these are required to be published anyway by virtue of the Police and Criminal Evidence Act 1984. This requirement has been duplicated in the amendment purely for the sake of legislative tidiness.
§ The definition of a strip search at the end of the amendment is clear and unambiguous. It comes from the Code of Practice, Annex 4A, which is attached to the Police and Criminal Evidence Act 1984. It is therefore difficult to think of any reason for the Government to oppose the amendment, assuming that they genuinely intend from 1988–89 onwards to give the simple and straightforward details of searches which so many of us seek.
§ If, by any unhappy chance, the Minister sees fit to disagree with the amendment, I can only assume that it must be the requirement to publish details of drug searches which worries him and his right honourable friend. That would be somewhat illogical in that the Customs are already required to publish a breakdown of intimate drug and non-drug searches, in consequence of the aforesaid Police and Criminal Evidence Act and its subsequent extension to the Customs.
§ However, I can appreciate that an obligation to include such details might involve the Customs in extra work, in that certain strip searches might embrace a search for both drugs and other contraband at the same time. Therefore, if this amendment is not acceptable, I should be quite happy to withdraw it provided that the Minister can assure the House not only that additional information on personal searches will be published from 1988–89 onwards, but also that such information shall include at least two specific items additional to those already required to be published. The two items are, first, the total number of strip searches and, secondly, the total number of strip searches other than intimate searches, which are successful. In other words, any question of whether there is to be separate recording of strip searches for drugs would be left open to be decided later. I beg to move.
The Earl of Caithness
My Lords, I undertook at Report stage to look at the matters which the noble Lord, Lord Monson, raised with my honourable friend the Economic Secretary to the Treasury who is the government Minister responsible for HM Customs. I said that I could not guarantee to come back with an answer by Third Reading. Nevertheless I thought it right before today to convey to those of your Lordships who spoke in the Report stage debate the progress our further consideration had made. This I did in a letter dated yesterday.
I welcome this opportunity of placing on the record the undertaking that I gave to the noble Lord. Statistics covering searches of the person will be published annually with effect from financial year 1988–89. That is the earliest date which can be managed because 1988–89 will be the first full year for which figures are available.
Given that, it might well be asked why we should not accept the noble Lord's amendment in anticipation of having the material available to us in 992 18 months' time. I hope that I have made it perfectly clear that we intend to publish information on the general lines envisaged by the noble Lord. We shall do so whether or not there is a statutory obligation. There is no dispute on the basic principle. The question to my mind is very simply whether it is sensible to legislate in detail at this stage on what the precise content of the published statistics should be. Perhaps I can be both encouraging and circumspect. I am sure that my honourable friend will wish to consider how information about the different categories of search and the results of searches can best be assembled and presented. He will of course have the noble Lord's suggestions and the record of these debates before him. He will also have the model of the Police and Criminal Evidence Act under which certain Customs search statistics are already published. But I should have thought it unwise to set that in tablets of stone now.
As regards the final two questions which the noble Lord asked, I shall make strong representations to my honourable friend and I am sure that he will accept them, given what has been said in your Lordships' House on the matter both at Committee and Report stages. We shall divide the statistics into the categories which are sought.
§ Lord Monson
My Lords, I am most grateful to the Minister for enlarging on his letter, which was ambiguous in one or two respects. He has stated that the statistics to be published will be on the general lines which I and other noble Lords who supported my earlier amendment envisaged. I am happy with that assurance. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 7.15 p.m.
§ Clause 138 [Remands in custody, for more than eight days]:
§ The Earl of Caithness moved Amendment No. 25:
§ Page 93, line 16, leave out from ("has") to ("28") in line 22 and insert ("set a date on which it expects that it will be possible for the next stage in the proceedings, other than a hearing relating to a further remand in custody or on bail. to take place, and only—
- (i) for a period ending not later than that date: or
- (ii) for a period of).
§ The noble Earl said: My Lords, this amendment has a specific purpose and a wider significance. The specific purpose is to respond to comments made by my noble friend Lord Morris at the Report stage. As Clause 138 stands, it requires the court, before remanding a defendant in custody for more than eight days, to form a view as to the minimum period likely to elapse before the next substantive stage of the proceedings. My noble friend argued that this was too vague and that a crisper and more specific requirement should be imposed on the court. The form of words he suggested implied a greater degree of direct control over events than the courts can realistically be expected to exercise. But I promised to look at the language of the clause and the amendment is the result.
§ What it seeks to do is to place on the court a responsibility to set a date on which it expects that it 993 should be possible for the next substantive stage of the proceedings to take place. Having considered and determined any application for bail, the magistrates would hear submissions from both parties on the timing of the next stage. If it seemed reasonable to expect them to be ready in two weeks' time, the court would set the remand period accordingly and there would be a clear presumption that the next substantive stage—perhaps the decision as to whether the case should go to the Crown Court or the trial itself—would take place on that day. In that way, periods of remand would be prevented from drifting towards 28 days in cases which could be disposed of sooner. It would only be where there was no realistic prospect of making substantive progress within 28 days that the remand would be for that period. Even then, under subsection(4) the court would be required to have regard to the total length of time the accused would spend in custody if it were to exercise the new power.
§ The wider significance of this part of the procedure is that it encourages the magistrates, in statute, for the first time, to take a more positive role in what might be called case management. That is something in which, encouraged by my right honourable friend, many magistrates' courts and their clerks have become more involved in recent years. Taken together with statutory pre-trial time limits, which are now the subject of experiments in several parts of the country, it seems to us to be the best approach to the problem of pre-trial delay.
§ This is our third debate on this clause and the noble Lord, Lord Irvine of Lairg, has indicated his intention of opposing the question that the clause stand part of the Bill. It may therefore assist your Lordships if I recapitulate on the advantages as the Government see them of what we recognise to be an important procedural change. Most important among those is the extent to which the energies of the prison officers, police officers and court staff who are at present involved in weekly remand hearings would he freed for other tasks. It is quite an operation to do the clerical work associated with the departure of a prisoner and his reception again some hours later; to escort him to and from court; and to arrange even the brief court appearance which is necessary to renew the remand. I think it is important that your Lordships should understand how much effort is involved in those processes, and weigh up what purpose is really served by such frequent court appearances.
§ Your Lordships will know that even with the substantial recruitment of prison officers in recent years finding sufficient staff is a real problem at many establishments. As was noted in the consultation paper which we published last year, even a small staff saving on the escort commitment can make a real difference to the regime in the small and medium-sized establishments. The availability of a single officer can make the difference between workshops opening or not opening and association among prisoners operating or not operating. The administrative and clerical staff also make an important contribution to the quality of prison life, and are prevented from doing so while they go 994 through all the formalities associated with booking a prisoner out and receiving him again later the same day. The police will be better occupied tackling crime than being engaged to the extent that they are in escort duties, particularly in London and Manchester where they bear the brunt.
§ The first benefit of the change will therefore be to release effort for other, more productive work. The second is more speculative and relates in part to the amendment to which I am speaking. Turning the courts' attention from the weekly ritual of a remand hearing to a less frequent but more purposeful appraisal of the progress of the case seems to us to hold out the possibility, desired by all sides of your Lordships' House, of bringing cases to trial more quickly. We cannot be certain of that, and one of the purposes of the experiments which we intend to mount before implementation is to test it thoroughly by looking at the effect of the change on the period before trial. But it is intuitively sensible that giving the magistrates a more direct role and sparing them and the legal representatives of both sides the burden of a pointless weekly appearance should help to speed things up.
§ Noble Lords opposite have represented this as a conflict between, on the one hand, safeguards for the accused and, on the other, an unprincipled desire to cut costs. I hope I have said enough to persuade your Lordships that that is not by any means a fair account of what we propose. In his speech at Report stage, my noble friend Lord Morris referred with approval to the Scottish system. I think he had in mind the use which the Scots make of a statutory time limit on the period an accused person may be held in custody. As I said earlier, we are moving towards the adoption of similar statutory limits in England and Wales.
§ The Scottish experience is instructive for two reasons. The first is the considerable success which the Scots have in sticking to the time limits, which is in no small measure due to the briskness with which their courts apply them. The second is that they have no equivalent of the weekly remand. The underlying assumption is that it is better to devote the system's energies to bringing cases to trial in good time, than to a purely formal weekly hearing.
§ That is certainly the Government's position in bringing forward this clause. We shall, as I have promised, test the new procedure very carefully in a few areas before extending it more widely and would not contemplate doing so if our experiments seemed to suggest that it was likely to increase the remand population and reduce the availability of bail, as noble Lords opposite fear.
§ There is one further matter which I should draw to your Lordships' attention. Clause 138 is an enabling power. It does not itself introduce new procedure. It enables the Secretary of State to apply the procedure by order to specified areas and specified proceedings. The order is subject to the affirmative resolution procedure so that the power will not be used at all without the express approval of both Houses. Parliament will be able to say when and where the new arrangements are introduced both in the initial experiments and in any more general extension. The passing of this clause is far from being the end of its parliamentary scrutiny.995
§ On the central principle, we are, however, more convinced than noble Lords opposite that what is proposed here will in time be seen as a valuable change rather than a safeguard lost. Weekly remands provide the appearance of a safeguard. The reality is that the interests of those remanded in custody pending trial are likely to be best served by determined efforts to bring their cases to trial as speedily as possible. I beg to move.
My Lords, it would be quite wrong of me not to rise even at this late stage of the Bill to thank my noble friend Lord Caithness for the way in which he has introduced this change. He has done so thoroughly and I believe that is a reflection of the importance of this change to the proviso of the Bill. I believe that will become one of those strange sections in an Act whereby the proviso to the section takes upon itself in terms of the impact on the administration of justice rather more importance than the substantive part of the section itself.
I hope that is the case, and I hope the test works out favourably. Rather exceptionally and for the first time for a very long time, this amendment is giving more power to the courts rather than taking away the power of the courts and placing that power in the hands of the administration. I believe that is a very good thing.
I wish also to thank the noble Lords of Her Majesty's loyal Opposition who supported me so nobly, the noble Lord, Lord Irvine, in particular and the noble Lord, Lord Hutchinson of Lullington. Without their help this could not have happened. The new drafting of this clause is really most elegant. It is not too restrictive and it is not so flexible as to be meaningless. I am most grateful.
§ Lord Hutchinson of Lullington
My Lords, may I say how much I welcome this change? I was the person who described the original wording as being very sloppy. No one could call these words sloppy, and I am grateful to the Minister for his effort in the period intervening.
§ On Question, amendment agreed to.
Lord Irvine of Lairg moved Amendment No. 26:
Leave out Clause 138.
§ The noble Lord said: My Lords, we on this side of the House have consistently opposed this clause. As the noble Earl has indicated, it will allow magistrates within designated areas to remand the unconvicted prisoner for up to 28 days at a time in place of the present eight-day maximum. This is to be done primarily in the name of saving money.
§ That in itself is a worthy objective, but there are a great many aspects of the criminal justice system which would benefit from the freeing of additional resources. We on these Benches certainly recognise that.
§ For my own part I have listened carefully to what the Minister has said in debate on this subject on a number of occasions. I have the advantage of having received from him two letters on the subject, and I have read them with some care. If he will forgive me I propose to quote from his latest letter.996
§ The economy that is sought to be achieved essentially is this. Savings are to be gained from avoiding unproductive court hearings. On the other side, it is recognised that these savings have to be set against and compared with the extra legal aid costs which will inevitably be incurred as a result of solicitors visiting remand prisoners in prison since they are not being brought to court every eight days.
§ If these extra costs of the solicitors going to the prisons are greater than the savings hoped for, then an exercise in the name of economy will have achieved the reverse of its object. When I look at the letter from the noble Earl, I read this in the section which deals with the extra costs that will undoubtedly be incurred. The figure of £1.3 million for the offset in costs of additional visits to prison by defence representatives was based upon a cautious estimate that although some additional visits will be needed, the costs involved will not be more than half the gross saving, and may well be less.
When one reads something of that nature one is hound to think that the whole matter is entirely speculative so far as economy is concerned. When one reads two sentences in a letter separated by but a page which state:
Our argument is simply that there is no point in mechanical appearances every eight days which benefit nobody
and then compare it with the sentence:
The limit of 28 days is not designed to eliminate unproductive hearings
one is to be forgiven—and I am sure the noble Earl will forgive me for saying this—for believing that one has entered the real world of "Yes Minister".
§ What we are saying in essence is this. There would only begin to be any case for change if the potential savings could be shown to be more than merely speculative and if other important aspects of the system were functioning as they should.
§ We believe that the arguments put forward by the Government really have no place in the real world. For example, it was said earlier in the debate that it is more sensible for consultations with solicitors to take place at prison rather than at court. In theory that is fine but in the real world it can and it does take many days before a prison interview room becomes available after it has been requested. As I understand it, this is acknowledged by the Government. In the real world remand prisoners are shifted around from place to place as the prison authorities desperately try to fit a quart into a pint pot. In a frightening number of well-documented cases the prisoner's family and lawyers have not been able to discover where he is being held. At the moment they can at least be sure that he will surface every eight days.
§ The Minister will say that Fresh Start will change all this. Very well, let him come back with his proposal when all these abuses have been curtailed and not before. Do not expect us to agree to take away an unconvicted person's rights merely in the hope that matters will improve in the future.
§ The Minister said that in Scotland the system simply commits an accused in custody until trial. That is so, but that is in the context, as the noble Earl acknowledged, of strict statutory time limits within which the trial must commence; and that, of course, 997 makes all the difference in the world. The Minister tells us that the Government are moving towards such time limits in England. That is excellent; but let it achieve that first, and then —and only then—ask us to do away with the eight-day rule.
§ It is sad that it is continually necessary, in the context of the debate on this clause, to return to the inadequacies of the Crown Prosecution Service. It is not the fault of those who work for that service that its lack of resources and resultant inability to do its job anything like properly is bringing the criminal justice system into disrepute. Noble Lords should not, and need not, take my word for the shambles which now exists. A morning or two spent in any urban magistrates' court would provide the most direct confirmation.
§ I do not know if the Government intend to confine their experiment, with the abolition of the eight-day rule, to the areas where the Crown Prosecution Service is coping with its case load. I doubt it because it would not then be a representative experiment. The point is that in most cases the Crown Prosecution Service is totally unable to cope and, therefore, in those places magistrates will have no sensible guidance about when the next stage of the proceedings is likely to occur. I welcome the amendment proposed in the first instance by the noble Lord, Lord Morris, but now brought forward by the Government. In those places where the Crown Prosecution Service cannot cope—that is, in the majority of courts in the country—despite this amendment we will see 28 days becoming the norm because the system simply will not be capable of doing any better.
§ The Government are putting the cart before the horse, and the horse should be put firmly before the cart where it belongs. The Government must begin by taking steps to reduce the remand population from its present frightening and unnecessary level. They must do something positive about the admitted gross discrepancies of magisterial practice in granting bail. Given that those discrepancies exist, I agree with the noble Lord, Lord Hutchinson of Lullington, that the Nottingham Justices' decision should be reversed so that a misguided rejection of a bail application is not final in the magistrates' court.
§ Further, the Government must improve the conditions in which remand prisoners are held, their accessibility to lawyers, and bring in time limits so that it is not possible for unconvicted people to spend months in prison awaiting trial. Above all, the Government should take a realistic view of the funding of the Crown Prosecution Service. if they do all that and then return with a proposal to abolish the eight-day rule, we on this side of the House will be willing to consider that proposal with some sympathy. However, as things stand in the real world, to abolish one of the few safeguards for the unconvicted accused is a disgrace and we oppose it. I beg to move.
§ 7.30 p.m.
My Lords, it is easy to forget that Clause 138 is an enabling power, as the Minister stated. It is as a result of this test that the change in the eight-day rule will come about. If it is positive, 998 then it may become general throughout the whole country. That is my first point.
I have one other brief point to make. The noble Lord's concern about the Crown Prosecution Service is well founded in regard to cetain aspects of its work in certain areas of the country; but to try and give the impression that generally it is a shambles is not fair.
In so far as this clause assists in the administration of justice I believe it should be welcomed. I do not want to go into the "baby with the bathwater" argument, but I believe that the amendment that the Government tabled previously has a great bearing on the efficacy of the clause itself.
The Earl of Caithness
My Lords, I admit to being disappointed at what the noble Lord, Lord Irvine of Lairg, said. Perhaps I can accuse him of something that he has accused me of; that is, of not listening to what was said. To be fair, I do not believe that he listened to what I said in moving Amendment No. 25. He said that it has the primary aim of saving money. I explained about the prison officers, the improvement of regimes, and improvements for the courts and for the police. There are other circumstances that are taken into account.
The noble Lord accuses us of not being in the real world, but it is a long time since those in the Home Office have lived in a sealed ivory tower. I have visited numerous prisons, and others responsible in the Home Office have visited many courts. Indeed, the noble Lord, Lord Donaldson, who is not at present in his place, knows that on Friday I am visiting a prison which is of particular concern to him. On those visits I take the opportunity to talk to those most directly involved in that process. The amount of time consumed by prison officers by an unnecessary eight-day hearing appals me. Under the proposals now before the House that time can be much better used without detriment to the person on remand.
The noble Lord said that we must reduce remands. We are working very hard towards that, as the noble Lord knows. As a result of the Autumn Statement, we have allotted considerably more money to bail hostels in order to try and help on that matter. There are a number of actions that my right honourable friend the Home Secretary is taking to reduce the remand population which I agree has grown substantially and is too high. The noble Lord said that we should improve conditions for those on remand. There has never been a bigger building programme, in financial terms. There are 26 new prisons—many of them local—designed especially for remand prisoners. Some of the refurbishment work being done is designed specifically to give remand prisoners better conditions.
I have frequently said to your Lordships that one of the aspects that has appalled me about the prison service is that remand prisoners seem to be the worst treated. We are giving that aspect much consideration, and a great deal of taxpayers' money, in order to solve that particular problem. The noble Lord said that we should bring in time limits. We are experimenting and will be extending those limits as soon as is feasible.
I hear what the noble Lord says on the Crown Prosecution Service. I believe that my noble friend 999 Lord Morris is absolutely right in saying that the general statement that the noble Lord made is not true. In some areas the Crown Prosecution Service is under more severe pressure than elsewhere, but on that particular point I assure the noble Lord that I shall pass his comments on to my right honourable friend the Attorney-General.
In conclusion, the experiments that we propose provide a check on our optimism about the effects of this proposal. If they provide grounds for thinking that the change will increase the remand population or slow down the pre-trial process, we shall pursue it no further. As I said, before we can pursue it further, it will have to come back before your Lordships' House and on that occasion I look forward to discussing it with all noble Lords opposite.
In our view, a weekly remand requirement irrespective of whether any real progress can be made with the case, is a safeguard without substance. It ties up scarce human and other resources which could be applied more effectively towards improving prison regimes, tackling crime and accelerating court proceedings. By freeing those resources and pointing the courts' efforts towards expedition rather than weekly formalities, we believe that this proposal has the potential to do much good. Therefore, I strongly recommend to the House that this clause remains part of the Bill.
§ Lord Irvine of Lairg
My Lords, I do not accept that merely to intone the virtues of the Home Office defeats better arguments. I have listened with care to what the noble Earl has said; I have read with care what he has written. I shall not enlarge the argument at this hour by demonstrating that that is so. My position remains. I am satisfied that the main inspiration of the Government's experiment is economy. I predict that they are misguided and will be proved to be, even in their own terms. I have no doubt that the proposal will be reverted to in another place. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 7 [Compensation]:
Lord Morton of Shuna moved Amendment No. 27:
Page 119, leave out ("essential") and insert ("requisite").
The noble Lord said: My Lords, this amendment relates to Schedule 7, paragraph 6(5). It deals with the basis upon which payment for private medical treatment is to be allowed by the Criminal Injuries Compensation Board. The Bill provides that the board is to make payment if it is satisfied:
that such treatment is or was essential".
The standard by which the board operates in the present scheme is if it considers that in all the circumstances the cost of private treatment is reasonable.
§ This will be my final attempt to obtain a better word for "essential". The problem with "essential" is that it makes it difficult to see what circumstances, having regard to the National Health Service, are to be regarded as essential. Circumstances in which the board has made payment for private treatment often 1000 include cases where there is a long waiting list. After how long on a waiting list something becomes essential is difficult to determine.
On Report the noble and learned Lord the Lord Advocate referred to a dictionary definition. I think that he said that "essential", "necessary" and "requisite" were synonyms. I took the advantage of the time available between the two stages to go to Fowler's Modern English Usage. While, according to Fowler, they all have the common meaning of something being needed, there is a distinction in the meaning. Again according to Fowler, "essential" is the strongest of the three, while "requisite" is the weakest. Fowler gives an example:
the essential thing is such that the other thing is inconceivable without it. Essential is the strongest of the three … When we call something requisite, we have in mind merely an end for which means are to be found; the requisite thing is that demanded by the conditions".
Fowler gives an illustration:
Bails are requisite, but neither essential nor necessary, for cricket; not essential, for it is cricket without them; not necessary, for their want need not stop the game".
but they are requisite all the same. It is in that sense that I suggest "requisite" rather than "essential" is the appropriate word. I beg to move.
§ Lord Cameron of Lochbroom
My Lords, I suppose that my noble friend opposite will accuse me of not playing cricket when I tell him that I am not minded to accept this amendment. In some sense his reference to Fowler underlines the point that I was trying to make in Committee and on Report when he tried various synonyms out on me.
The essential point that I was trying to put across was that the policy we are endeavouring to find for this part of the Bill is that the board should not normally be expected to pay for private health care. If it does, it should only do so in exceptional circumstances, and of course where the costs are reasonable.
In our view, the word "essential" properly reflects the intention that such payment should be made only in exceptional circumstances. As the noble Lord said, the word "essential" reflects a more emphatic point of view than the word "requisite", which he suggests. We think that that emphasis provides a proper flavour for what we wish the board to do when approaching such cases. That being so, although I have listened with interest to the way in which he scoured Fowler's and induced me to go to the Oxford English Dictionary, I regret to say that I think the word which is there is the one which more properly reflects the policy which we wish to see in the Bill.
§ Lord Morton of Shuna
My Lords, I am, disappointed by the reply, but it makes clear the government view. Apparently if a young lady has a scar across her face which can be cured by plastic surgery, but with which she can exist on a two- or three-year National Health Service waiting list, it is not essential that she should have that treatment. She should wait with the scar. I think that the appropriate word is "requisite", but at this time of night I shall not press this necessary amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1001
§ 7.45 p.m.
§ Schedule 9 [Retention of Young Offenders in Scotland]:
The Earl of Caithness moved Amendment No. 28:
Page 127, line 19, after ("A") insert ("person who at the commencement of section 118 of this Act is detained in a detention centre by virtue of a").
§ The noble Earl said: My Lords, with the leave of the House I shall speak also to Amendment No. 29. These amendments clarify one of the transitional provisions contained in Schedule 9. Parallel amendments were made on Report to the transitional provisions for England and Wales. I beg to move.
§ On Question, amendment agreed to.
The Earl of Caithness moved Amendment No. 29:
Page 127, line 25, leave out from ("be") to end of line 26 and insert ("detained in such young offenders institution as the Secretary of State may direct, and any enactment applying to persons detained in young offenders institutions shall apply to a person so detained under this paragraph.").
§ The noble Earl said: My Lords, I beg to move.
§ On Question, amendment agreed to.
§ An amendment (privilege) made.
§ Moved, That the Bill do now pass.—(The Earl of Caithness.)
§ Lord Elwyn-Jones
My Lords, before we reach the omega of approval of that Motion I venture to mention one or two matters to the House. This has been a parliamentary marathon. I shall not say a parliamentary marathon to end all marathons, because I fear that Parliament may be faced with similar marathons in the future.
We now reach the end of what has been a detailed and prolonged examination of one of the most important Bills to come before this House. I hope that the Opposition, including members of the Alliance, a number of Members on the Cross-Benches, some of whom are here to the bitter end, including a number of Law Lords who have assisted us from time to time in our deliberations, will be thought to have taken an effective part in the proceedings.
There have been two main areas of contention. The first has been the alteration to our extradition procedures which has eliminated the duty of the magistrates' court to ensure that a prima facie case was made out before an extradition order could be made. Unhappily, the Opposition failed to retain that ancient protection. However, the Government were at least persuaded to strengthen the provisions in the Bill that ensure the right of the accused person to make representations to the Secretary of State, which he now has a statutory duty to consider. The rights of judicial review of the Secretary of State's decisions have been retained, and indeed strengthened, as against the original provisions in the Bill.
The second major battle has been over the abolition of peremptory challenge of jurors by the defence. The injustice that seemed to us to be transparent was made all the more vivid by the 1002 retention for the Crown of the right to stand by. As a result I fear that the balance has been unfavourable to the defence and important defence rights have been curtailed. However, there again we have been able to redress the balance to a certain degree. I hope that those two issues will have a better fate in another place, but we have shown the way and given guidance.
As a result of our debates, and striking a wholly non-party approach, I believe a number of important improvements have been made to the Bill. It leaves the House for that reason in a better shape than it arrived. Heaven knows, it is not much to claim after all the hours, days and nights of labour that we have applied in endeavouring to achieve that task.
Before I conclude I should like to put on record our deep regard for the manner in which the noble Earl has grappled with the intricate legal issues that have arisen in the course of the consideration of this Bill.
§ Lord Elwyn-Jones
He has indeed been a lonely Daniel in a den of legal lions. None of us has actually bitten him and I hope that we have not taken undue advantage of the fact. Before I conclude I should also like to express our gratitude for the help given us by, and the contributions of, the noble and learned Lord the Lord Chancellor on the Woolsack and the noble and learned Lord the Lord Advocate. On that note, although I cannot now wish everybody a Happy Christmas, when it comes I do.
§ Lord Simon of Glaisdale
My Lords, I hope that noble Lords will allow a short intervention from the Cross-Benches before passing this Bill. Perhaps I may make two comments by way of preliminary observation. First, this is an enormous Bill. My noble and learned friend has described it as a marathon. It is mammoth, and it seems to me that we have rushed it too much. The times between the various stages of the Bill were very short indeed. I was quite amazed at the way in which the noble Earl managed to deal with the vast mass of correspondence between those various stages.
Secondly, the Bill proceeds very largely by amendment with reference to other enactments. On the first one I asked the noble Earl whether he would ensure, or preferably had ensured, that the amended statute would rapidly he published as amended in the Statutes in Force. I did not repeat that on the innumerable times that the occasion arose. However, I hope that he will see that that is done. There is no need to wait for consideration by another place, because, although there will undoubtedly be amendments made there, that position can perfectly well be coped with by the editor of the Statutes in Force.
The Bill effects a great many improvements in detail over the whole realm of our criminal justice. In addition, it makes some major radical alterations which are long overdue. Listening to the speeches from the noble Earl's side of the House, I was amazed to hear the constant opposition to any radical change. If I had to describe those speeches in studbook terms it would be by Lord Eldon out of 1003 Blackstone. Indeed, we heard a great deal about Blackstone and from Blackstone at various stages. Blackstone was a great 18th century writer but nobody would accuse him of being other than intensely conservative on the law. Nobody would have thought, listening to those speeches, that sitting at the feet of Blackstone there was an intensely critical intelligence in the form of Bentham, whom I had always regarded as the spiritual ancestor of at least the Liberal element in the Alliance Benches. He was not mentioned; nor was his innovating, critical, rational approach to the law even adumbrated.
Having said that, I should like to associate myself with the tributes that were paid by my noble and learned friend Lord Elwyn-Jones. In the rather more than 25 years that I have spent in one House or another I have never heard a better debate than the major debate on extradition. Your Lordships will undoubtedly think that we are singularly fortunate in having in the form of my noble and learned friend on the Woolsack a debater in the tradition of Thurlow, Cairns, Birkenhead and my noble and learned friend Lord Hailsham. However, particular tribute must be paid—as it was by my noble and learned friend Lord Elwyn-Jones—to the noble Earl in charge of a Bill that demanded knowledge not only of the substance of criminal justice but a sense of the way it works.
Your Lordships will remember that when Queen Victoria opened Street's great architectural masterpiece, the Law Courts in the Strand, the judges prepared an address to her. It was a eulogy of the law as the fabric of our society and the protection of our liberty and our order, and by implication a eulogy of judges as the expositors of the law. There was one note of modesty struck. That was the sentence, "Conscious as we are of our shortcomings", to which Lord Bowen suggested the amendment, "Conscious as we are of each other's shortcomings".
It is small wonder that the noble Earl has been bombarded from all quarters of the House with conflicting legal advice. I can only associate myself with the admiration expressed by my noble and learned friend on the Front Opposition Bench for the way he has kept his balance, his head and his unfailing courtesy.
§ 8 p.m.
§ Baroness Macleod of Borve
My Lords, I shall take up just three minutes. I have sat through the Bill almost inarticulate for I have been deeply moved by the care shown by all your Lordships, who have so much more knowledge than I, in helping this Bill through the House. It is one of the most important Bills to have come before Parliament for many years. We are trying to put the clock back somewhat in endeavouring to persuade more people to keep the law. We have grasped many nettles and at the end of this part of our proceedings I think that we have done a great job.
The department of the noble and learned Lord the Lord Chancellor, the Lord Chief Justice and the department of my right honourable friend the Home Secretary have had a great deal to do with the implementation of the Bill. There is no point in our passing the Bill and finally the Act through 1004 Parliament if the people of this country do not implement it. Among those people are the lay judiciary, but foremost is the Crown Prosecution Service. I have heard some disturbing news about the Crown Prosecution Service—that its members are underpaid and that they do not bring forward the correct charges.
I wish to associate myself with everything that has been said and perhaps felt more than some of us can say about the leadership given on the Bill by my noble friend Lord Caithness. I have had many letters as I know all other noble Lords have. I have a deep sense of gratitude. I should like to say a deep thank you for all that he has done.
§ Lord Hutchinson of Lullington
My Lords, I have spent a certain amount of time on this Bill and I should also like to pay a real tribute to the Minister for his continuous good humour and for his patience in listening to a veritable waterfall of legal argument. His great contribution has been to make the long process of this Bill a pleasure rather than a penance.
The noble and learned Lord, Lord Simon of Glaisdale, was a distinguished Conservative Minister. If I may say, with the greatest possible respect to him, it is a mistake to confuse radical reaction with radical progress. The support for the rather authoritarian radical measures in the Bill is not ever to be mixed up with the liberal approach to such matters found on these Benches. It is not the sort of radicalism which we support here.
Having said that, I can only be rather sad about some of the measures that have been passed in the Bill. They will store up a lot of trouble for the future. There have been a few crumbs, perhaps even a crust in Part II, and I am grateful to the Government for having given us that.
The Earl of Caithness
My Lords, in the words that have haunted my noble friend the Chief Whip over the past six weeks, I shall not detain the House for too long. Over 63 hours of debate have taken place on this Bill. We are now nearing the end of our consideration of it for the time being. I really do not intend to take up too much of your Lordships' time. But now would seem to be the right moment to reflect on our achievements over the past few weeks. We have had some long and valuable discussions on the Bill and it leaves the House all the better for that, as well as being somewhat plumper.
The first part of the Bill dealing with extradition was to exercise your Lordships perhaps more than anything else. The discussion in Committee led us to bring forward three significant changes on Report. We proposed, first, that the fugitive should have a statutory right to see the papers on which the extradition request is based; secondly that the fugitive should have a statutory right to make representations to the Secretary of State within 15 days of a committal order being made by the court; and, thirdly, that if a judicial review is undertaken of a ministerial decision to order the return of a fugitive to a requesting state, the return shall be deferred until judgment is given.
1005 These proposals did not satisfy all your Lordships but I hope that on reflection it will be agreed that they are important and go some considerable way to meeting the concern expressed in Committee. It is vitally important that we modernise our aged extradition laws and it is equally important that in doing so we get them right. The scrutiny that your Lordships have given to these provisions has proved invaluable.
During our debates on the evidence provisions in Parts II and III of the Bill the wealth and variety of legal experience in your Lordships' House was amply demonstrated. I was very glad that with the help of the noble Lord, Lord Hutchinson of Lullington, we were able to improve Clauses 21 and 22 on Report. Many of your Lordships were concerned that the principle of orality in criminal trials should be preserved. I believe that by the amendments your Lordships have made we have safeguarded that principle while taking important steps to modernise the law and to enable the wheels of justice to turn more efficiently. I am sure that I speak for all of your Lordships in saying how grateful I was that, in the debates on these and other clauses, the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, were able to give us the benefit of their experience on the Fraud Trials Committee.
Most of our second day in Committee was devoted to the very important subject of children's evidence in cases of alleged sexual or physical abuse. I am sure that what was said in your Lordships' House then and on Report has made a vital contribution to the wider debate. Your Lordships have also made an important practical contribution by amending the Bill to remove the absolute requirement that a child's unsworn evidence should he corroborated. The question of how to lessen the ordeal of the child in court whilst safeguarding justice is a difficult, sensitive and crucial one, and, if I may say so, the constructive manner in which it was addressed, which quite transcended party lines, does your Lordships immense credit.
We have also had some lively discussions on Part IV of the Bill. The question of how to tackle the occasional unduly lenient sentence is one that has been with us for a long time. Proposals have come before your Lordships' House before and have been unceremoniously rejected. We had a long, interesting and valuable debate on this subject on the third day of Committee. We benefited greatly from the wisdom and experience of the noble and learned Lords, Lord Lane, Lord Ackner and Lord Denning, and of my noble and learned friend Lord Hailsham—a formidable team. The noble Lord, Lord Mishcon, was, I recollect, placed in the odd position of recalling with some affection our earlier proposal on this matter which only weeks earlier he had eloquently opposed. We all acknowledged in that debate that cases in which unduly lenient sentences are passed are few and far between. But they exist and it is right that we should tackle them. I hope that in time noble Lords opposite will come to agree that the provisions in Part IV of the Bill are the right way to deal with this.
1006 We had a substantial debate in Committee on the proposals in the Bill to abolish the defence right of peremptory challenge. Last week at Report we discussed at similar length whether the Crown right of stand by should be removed. We have discussed this again today. We have been fortunate in some of our discussions to have had the benefit of the long experience in these matters of my noble and learned friend Lord Havers. These are difficult and controversial matters. I fully recognise that I have been unable to persuade some of your Lordships of the fundamental soundness of our proposals. But I am glad that I was able to move very considerably towards meeting the genuine concerns expressed by the noble Lord, Lord Wigoder, and others about the future use of Crown stand by. It will be confined to terrorism and security cases in which a jury check has been authorised and cases where potential jurors are manifestly unsuitable for jury service. As I announced last week, additional safeguards will apply in both these cases. In future my right honourable friend the Attorney-General will expect to give authority personally for the removal of jurors in those cases where he has authorised a jury check. Where stand by is used to remove a manifestly unsuitable juror, this will only be done with the agreement of the defence.
I should just like to mention quickly two other additions to the Bill. On the sixth day of Committee, I introduced our proposals for a unified custodial sentence for young offenders. I was greatly heartened by the welcome these new clauses received and I was especially grateful for the support of my noble friend Lady Faithfull in view of the valuable work she carries out in this field.
On the last day of Committee I spoke to amendments designed to strengthen the law dealing with the possession and sale of knives and other offensive weapons. I was grateful to have the support of noble Lords throughout the Committee. This is a matter of concern across party lines and by inserting those new clauses we have taken a real step towards making our streets a little safer. Perhaps it would be right to mention here that l was grateful for the contributions of the noble and learned Lord, Lord Simon of Glaisdale, who gave us the benefit of his experience, learning and good sense, and kept us on the straight and narrow when some of us were apt to stray.
That brings me to the end of my whirlwind tour of our proceedings on this Bill. Before I sit down, I should like to say how grateful I am for the positive way in which your Lordships on every side of the House have approached the task. There were many points raised which we could not accept but to which I have no doubt we shall return again, though I say I hope perhaps not in this Bill. Many helpful comments and suggestions have been made, all of which we have taken note, some of which we have incorporated in the Bill and some more of which have given us food for thought in the coming months and beyond.
I hope that I was able to deal with most of your Lordships' questions during the course of our proceedings. The volume of letters I sent between sittings I hope served to clarify rather than muddy the 1007 waters. I was able to accept a number of amendments to the Bill, perhaps not as many as noble Lords opposite would have liked. Nevertheless 30¾—the "three-quarters" being Amendment No. 5 today—non-government amendments were agreed to. That is still a significant number and I am sure it will be a better Bill for that. Indeed there will be further consideration on 11 of the amendments debated today.
Many noble Lords have contributed to our debates and it would take far too long for me to mention all those that I should like to refer to. Perhaps I could just say that I am grateful to my noble friends on the Benches behind me for their support and their occasional constructive criticism, and in particular to my noble friends Lord Boyd-Carpenter, Lord Renton, Lord Campbell of Alloway and Lady Macleod of Borve. I greatly welcome the expertise and advice the noble and learned Lords on the Cross-Benches were able to bring to our discussions. I appreciate the courteous and constructive manner in which noble Lords opposite have conducted the debates, some of whom followed the wise advice of the noble Lord, Lord Mishcon, and measured the power of their support with the brevity of their speeches; some did not.
I am sure all noble Lords would wish me to mention particularly the contribution of the noble Lord, Lord Irvine of Lairg, who in the course of the Bill we have seen progress from his maiden speech on Second Reading to gaining his spurs, with considerable distinction, at the Dispatch Box. I cannot let the occasion pass without mentioning the noble Lord, Lord Hutchinson of Lullington, who has spoken with great passion and eloquence on a host of issues, over no fewer than 752 column inches of the Official Report before today. I believe that he might well have cracked the 900! I congratulate him most warmly on both achievements. I am grateful for the kind remarks that your Lordships have made about me on this Bill. However those remarks are not for me; they are for my Bill team which has worked incredibly hard to produce letters and get the briefings to me.
Finally, I am deeply grateful to my noble and learned friends the Lord Chancellor and the Lord Advocate, and my noble friend Lord Arran for taking on so much of the burden from these Benches. They have discharged it, as one would expect, with great distinction, and it has been a great support and comfort to me to have their assistance. The Criminal Justice Bill will go to another place having been subjected to the closest scrutiny. It has been the subject of very healthy debate which does credit to the best traditions of your Lordships' House. I beg to move.
§ On Question, Bill passed, and sent to the Commons.