HL Deb 19 November 1987 vol 490 cc314-50

4.50 p.m.

Consideration of amendments on Report resumed.

Clause 39 [Amendments relating to committal for sentence]:

The Earl of Caithness moved Amendment No. 41: Page 27, line 4. leave out subsection (4)

The noble Earl said: My Lords, Amendment No. 41 is consequential to the amendments made in Committee to bring about the introduction of a unified custodial sentence of young offenders. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 42: Before Clause 41, insert the following new clause:

("Life imprisonment maximum sentence for murder.

. In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, for the word "sentenced" there shall be substituted the word "liable".")

The noble Lord said: My Lords, I put my name to this amendment but I was not expecting to speak first on it. However, perhaps I may do so by reference briefly to what I said in Committee.

In many cases in the crime of murder it is quite clear that the offence was not premeditated and that the offender has never offended before and is most unlikely to offend again. Then there are cases of manslaughter, or in Scotland culpable homicide, which become such because of the diminished responsibility rule. Those offenders are far more dangerous to the public than those who may be tried for a murder which involves a family situation. In the dangerous diminished responsibility case, the judge is expected to impose a sentence which can be infinitely variable up to life. For murder, although there may be all sorts of extenuating circumstances, the penalty must be life. That is an inappropriate sentence for certain types of murder and it devalues the life sentence, which should be kept for very serious types of offences.

This amendment alters the Murder (Abolition of Death Penalty) Act. If it commends itself to your Lordships it will be necessary to keep Scotland in line and to make a consequential amendment to the Criminal Procedure (Scotland) Act, but that can be done at a later stage in the Bill. In that short way, I commend this amendment to the House. I beg to move.

Lord Hutchinson of Lullington

My Lords, I must apologise to your Lordships for my delay in speaking to this amendment but I was held up outside the Chamber. Perhaps I may say a few words about it because I moved it in Committee.

I begin, in deference to the noble and learned Lord the Lord Chancellor, by quoting a few words from the noble and learned Lord, Lord Kilbrandon, in the case of Hyam. I do not know whether this has already been quoted. He said: It is no longer true, if it ever was true, that murder is necessarily the most heinous example of unlawful homicide". The majority of murders are committed within the family environment, usually by persons of hitherto good character and often in situations of great deprivation or overwhelming stress. Those cases in no way merit a life sentence and such persons tend to be released at an early stage in their sentence, often giving rise to ill-informed public disquiet and a disruptive sense of injustice within prisons. Surely a sentence should always reflect the incidence of the offence.

Another matter which arises is that artificial ways round a mandatory sentence have grown up and have created a happy hunting ground for criminal lawyers on the scent of doctrines of provocation, self-defence and diminished responsibility in order to reduce such charges to manslaughter. The law is constantly bent, as I am sure the noble and learned Lord the Lord Chancellor well knows, often with the blessing of the judge, the lawyers and the medical witnesses to see that proper justice is done in a case where all concerned are anxious that a verdict of murder should not be registered in that case.

I suggest that this is undesirable and dilutes the deterrent effect of the ultimate sentence. It also puts one type of offender into an impossible dilemma. He who denies the act of killing itself therefore cannot set up a defence of diminished responsibility if in fact he is a person who is in some way mentally affected. If he is convicted, nonetheless, he cannot then receive a psychiatric disposal.

The time served by a life prisoner for murder will at present vary greatly, many being released on licence long before those serving life for more serious offences such as rape, arson or robbery. Many judges on the Bench would strongly welcome an unfettered discretion to sentence appropriately in cases of murder and to be spared the unpleasant and often apparently cruel task of imposing a life sentence on someone who will in fact be released in only a few months.

I am sure that the speech of the noble Lord, Lord Windlesham, made in Committee has already been referred to, but he and a number of his noble friends took the view that this amendment showed a disappointing reluctance to go further and abolish entirely the distinction between manslaughter and murder, having but one offence of unlawful killing. I assure the noble Lord that we are not timid but rather judicious; and surely with this amendment the Government would have no excuse to defer a decision on the grounds that the Law Commission or some other galaxy of lawyers would settle down to gnaw away at this bone for the next two or three years.

In Committee we heard many of those favourite phrases from the Minister, reading his official brief, about "leaps in the dark", "radical upheavals" and "risky courses". I would suggest that none of those is appropriate for this amendment as it stands. If the House accepts this amendment (as I hope it will) it might well be desirable to introduce at a later stage a ceiling on the determinate sentence of, say, 25 years, reserving a life sentence for offences deserving of a penalty in excess of that maximum.

Equally, I would suggest that it might well be wise to implement the suggestion of the all-Party penal affairs group with the introduction also of a reviewable sentence, as recommended by the Butler Committee, for dangerous offenders with a history of mental disorder who do not qualify for compulsory hospitalisation. Those people are at the moment given what is often called a merciful life sentence on the basis that they will be let out when the authorities think it wise to do so. That again perhaps is not a very appropriate way of dealing with them.

The amendment clearly follows a recommendation by the Butler Committee, the advisory council, a substantial minority of the Criminal Law Revision Committee, and most recently the all-Party penal affairs group. I have great pleasure in supporting it.

5 p.m.

Lord Campbell of Alloway

My Lords, perhaps I may briefly record support for the principle of the amendment on the basis of the reasoning that has been advanced without repeating my support for it at Committee stage (at cols. 424 and 425) of Hansard.

Lord Denning

My Lords, I oppose the amendment. Murder is still murder, and the judge who has to decide the sentence for it has a most difficult task. Is it not right—as when it was a capital offence. so now—that the sentence should be declared by the law? The present word is "sentenced", and it should remain.

Lord Windlesham

My Lords, as the noble Lord, Lord Hutchinson of Lullington, has said, I spoke at Committee stage in support of the proposal that life imprisonment should become the maximum rather than the mandatory sentence for murder. I therefore support this amendment.

I do not want to repeat what I said then. What I intend to do today, which I hope will be of some assistance to the House, is to outline in some detail the case for making changes in the way that life sentences are administered. But I think the better place to do that is on the next amendment, Amendment No. 43. In the meantime, I would simply say that this amendment is desirable. As the noble Lord, Lord Hutchinson of Lullington, pointed out, it falls short of the more radical approach towards a reform of the law of homicide, but it is certainly a substantial improvement on the present situation and should be supported for that reason.

Lord Ackner

My Lords, while I have a lot of sympathy with the amendment, it raises only one small part of a very much larger problem. The problem is being dealt with piecemeal, whereas it needs to be dealt with in its entirety. In saying that I refer to the offence of murder.

The present law of murder is in a most perplexing position. The noble Lord, Lord Hutchinson, mentioned R v. Hyam, a case decided some 17 years ago. It has a nostalgic flavour because I was the judge who gave the direction which has given rise to a fair amount of dispute over those 17 years. The problem arises because one part of the ingredient of murder, is not only an intention to kill but an intention to do grievous bodily harm. The case of Hyam was a dramatic case. A discarded mistress, anxious to scare away the woman who had taken her place, poured petrol through the letterbox then put a newspaper through the letterbox, using that as a means of igniting the petrol by setting fire to the newspaper. Her alleged intention was merely to scare away the rival. She drove away having made sure that the house was on tire. The net result was that the rival escaped with one son unharmed. Two children were burned in the fire.

The direction that I gave was that if the defendant knew it was highly probable that she would cause grievous bodily harm to anyone in the house that was sufficient, and the jury convicted by 11 to one.

That was supported in the Court of Appeal and by a majority of three (query four) in the House of Lords. Very recently there was the case of Maloney in 1985. This was an odd case in which a stepfather challenged his stepson after they had been drinking too much to a contest as to who could load and fire a gun first. In obiter dicta in your Lordships' House—it was not necessary for the decision—it was indicated that Hyam had confused intention with foresight. That approach was followed by your Lordships' House in Hancock, a case which noble Lords will remember occurred during the miners' strike when two lumps of concrete were thrown over a bridge. Very recently there was the case of Nedrick (which was a male Hyam) who put paraffin through the letterbox, and then set fire to it resulting in the death of the woman with whom he said he merely wished to level a score. He was convicted of murder, but on appeal manslaughter was substituted.

The law is in an unsatisfactory position. It needs to be reconsidered. As I think my noble and learned friend the Lord Chancellor knows, it was the subject-matter of a very impressive paper given by my noble and learned friend Lord Goff of Chieveley in a lecture in Israel which is about to be reproduced in the Law Quarterly Review. This underlines how necessary it is to consider introducing the words "wickedly reckless" which are used in Scotland and taking out of our law the intention to do grievous bodily harm.

I would submit to your Lordships' House that until the offence of murder has been properly considered, to tinker with the mandatory sentence now on the basis that the law is unsatisfactory as it stands because under the cloak of murder so many types of activity are comprised, is a premature activity which should not be undertaken. If the matter is left, it may stimulate what I hope will occur, and that is very necessary: that the Law Commission undertake a review of this offence as soon as possible.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, the Criminal Law Revision Committee, in considering the topic that is the subject-matter of this amendment, said: Indeed it is uncertain what sentencing pattern the change would produce". That is that this particular change would produce. we, the majority, think that the adoption of such a course would be a leap in the dark which ought not to be taken especially in the present situation with regard to crimes of violence generally". I think this shows that, although my noble friend Lord Caithness was accused by the noble Lord, Lord Hutchinson of Lullington, of reading the phrase from the official brief, the truth is that it was not quite as original as that. It had already been used by the Criminal Law Revision Committee, and used carefully, and in the light of a very careful consideration of the difficult problem which this amendment raises.

However cautioned against reading too much from the official brief, I just summarise the position as I should like to put it before your Lordships. One has to remember the history of the matter. As I listened to the debate being opened, I could not help remembering the opening words of the speech of Dean of Faculty Inglis defending Madeline Smith in July, 1857. Your Lordships will remember that he began by saying: Gentlemen of the Jury, the charge against the prisoner is murder. and the punishment of murder is death: and that simple statement is sufficient to suggest to us the awful solemnity of the occasion which brings you and me face to face". I believe that although that was quite a long time ago, the crime of murder is still a crime which has a very special place in the attention of our people. I accept that the circumstances in which people are convicted of murder may vary greatly from occasion to occasion. That point has been well taken by a number of your Lordships. Certain defences have been open: the defence of self-defence—not in order to bring the charge to one of manslaughter but, if successful, to acquittal altogether—and certain defences such as diminished responsibility, which have the effect of reducing the charge to manslaughter.

My noble and learned friend Lord Ackner has pointed out the difficulty which now surrounds the definition of the charge of murder. That difficulty is reflected when one looks at the various circumstances in which people may be convicted of murder. I have had the privilege of seeing both in draft and in its finished product the very interesting and thought-provoking lecture which my noble and learned friend Lord Goff of Chieveley delivered as the Lionel Cohen lecture in the Hewbrew University of Jerusalem in May this year. In my opinion that lecture makes a very important contribution in relation to the development of the law in this area.

I think that simply to introduce this change without doing more would put a tremendous responsibility on our judges. It would do so without any guidance whatever as to how the public regard the various levels of murder that might occur. It would widely be seen as a weakening of the law in relation to crimes of violence at a time when crimes of violence are certainly not on the decrease.

Since the debate in Committee, my right honourable friend the Secretary of State and some others of us have been giving very careful consideration to this subject. There is no doubt that it is an extremely difficult subject and one upon which there are many different and reasonable opinions, and some of them have been manifested in your Lordships' House this afternoon. This being a lawyers debate—having regard to what was said about lawyers—I shall be brief, so I shall not attempt to summarise all the different views that exist. There is no doubt that there are a number of different views, all eminently respectable and held by people with different experience and different authority in this field. All these views merit consideration and I believe they merit very close consideration before any substantial change is made in this area of the law.

The Criminal Justice Bill is a very extensive measure which already contains a good deal of controversial matter as your Lordships' debates at Second Reading, in Committee and on Report show. I venture to suggest that it would not give this subject the prominence that it deserves to attempt to deal with it by way of an amendment now, particularly in the absence of any real consensus developed upon this difficult question. Although I thoroughly understand the arguments put in favour of the amendment. which I see have a great deal of force, there are a great many other arguments in the opposite direction. It would not be right at this stage to pass the amendment. 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. I look forward to hearing what noble Lords have to say about that when the other amendments touching on the same matter are debated this afternoon. I certainly and very definitely suggest that it would not be wise to pass the amendment.

5.15 p.m.

Lord Mishcon

My Lords, we have all listened with great attention and care to what the noble and learned Lord the Lord Chancellor has said. What he said followed a speech from the noble and learned Lord, Lord Ackner to which we also gave great attention. As I understand it, that speech ended with a suggestion, with some urgency behind it, that the Law Commission should immediately examine the very difficult field to which the noble and learned Lord the Lord Chancellor referred and to which the noble and learned Lord, Lord Ackner, and others referred in the past.

Is the noble and learned Lord able to tell the House that at an early opportunity the Law Commission will be asked to deal with this matter with a view to our seeing its recommendations and considering the whole matter, as the noble and learned Lord suggested, in one light?

The Lord Chancellor

My Lords, with leave of the House, I am not in a position at this moment to indicate exactly how this might best be attempted. The Law Commission is an obvious candidate for carrying out such a review. As the noble Lord, Lord Mishcon, well knows, there is also in existence the Criminal Law Revision Committee, which has considered this matter. The best form in which this issue might be taken forward is a matter upon which the Government have not been able to reach any decision. This afternoon I am not able to say precisely what ought to be done. I submit that something ought to be done before the amendment would be regarded as right to pass.

Lord Morton of Shuna

My Lords, as this has almost accidentally become my amendment perhaps I should reply. It seems to me that the noble and learned Lord has managed in a sense to change the question from whether a life sentence is necessarily appropriate for a conviction for murder to whether there should be a radical look at the whole offence of murder and the offence of culpable homicide. As I understand it—although in Committee we discussed the broader question—the amendment is purely on the issue of whether it is appropriate that all people properly convicted of murder should receive a life sentence. I remind your Lordships that among others in Committee the noble and learned Lord, Lord Roskill, was very clearly of the view that this caused considerable difficulty in his experience as a judge. I should have thought that if we are to have a general review it may be encouraged by your Lordships' House voting in favour of the amendment. Therefore, I think it is appropriate that the views of your Lordships' House should be sought.

On Question, amendment negatived.

Lord Hutchinson of Lullington moved Amendment No. 43: Before Clause 41, insert the following new clause:

("Abolition of minimum periods of life imprisonment.

. Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 shall cease to have effect.").

The noble Lord said: My Lords, rather less breathlessly, I seek to move this amendment. Its purpose is to seek to abolish the power in the court at present to recommend when passing a sentence of life imprisonment the minimum period that should elapse before the offender can be released on licence. The amendment will not require a great deal of further consideration and thought. It is an amendment that should now be accepted.

Since their introduction in 1965, such recommendations have been resolutely followed by the prison authorities and Secretaries of State and in only seven out of 244 cases have prisoners been released earlier than the recommended date. The purpose of the power was described by the Minister in Committee as being to enable the judge at trial to lay down a marker when sentencing in a particularly abhorrent case. That may have been the purpose but the fact of the matter is that this is simply not consistently done and the use of the power over the years has been shown to be both inconsistent and haphazard. Some judges believe in using the power. Some judges believe in never using the power. Each judge has his own subjective criterion as regards the operation of the power.

In Committee the noble and learned Lord, Lord Roskill—a most experienced judge—made an eloquent plea for the repeal of this power which he described as outmoded and outdated. He pointed out that the power was introduced as a political compromise during proceedings on the Murder (Abolition of Death Penalty) Bill. He was supported in Committee by the noble and learned Lord, Lord Hailsham, and by my noble friend Lord Hunt, a former chairman of the Parole Board. It was the noble Lord, Lord Windlesham, as chairman of the Parole Board, who disclosed, much to the astonishment of most noble Lords, that, since the case of Handscomb in the Divisional Court, trial judges in all cases where life sentences are imposed, whether mandatory or discretionary, are now required to write to the Secretary of State expressing an opinion on the number of years the prisoner should serve to meet what are called "the requirements of retribution and deterrence". It is apparently on this period—which, to the distaste of the noble Lord, Lord Windlesham, is called by the officials "the tariff"— that the first review of such a sentence by the Parole Board will be allowed to take place. We know that, as a result of a further political decision made by the former Secretary of State, Mr. Leon Brittan, in any offence of violence no review whatever of such a sentence can take place before 17 years have passed.

The result is that a power to be used in certain serious cases only in relation to the mandatory life sentence—and described by the noble and learned Lord, Lord Roskill, as I have reminded the House, as outmoded and outdated—is now apparently being operated in every single case where a life sentence is passed, and in circumstances where the accused person and his advisers will know nothing about it and will know nothing about the number of years the trial judge decides should be served before that person is considered for release on licence.

In those circumstances, is it not now essential to get rid of this power, whether it is operated openly before the court or clandestinely within the Home Office? I beg to move the amendment.

Lord Hunt

My Lords, I rise to support the amendment extremely briefly because the proposition has been so ably covered by my noble friend. I shall presume to repeat to your Lordships on Report what I told those noble colleagues who were present at the Committee stage. I spoke then of my own personal experience in the early years of the Parole Board when such cases as we are now considering came before it. I said then that this had an extremely inhibiting and indeed almost prohibitive effect on our deliberations on the "merits" of the cases, if that is the right word, and on the favourable circumstances which may well have obtained—and did obtain—a considerable number of years after sentence had been passed.

I recalled to the Committee a considerable number of such cases on which the label of a minimum term had been placed by the sentencing judge but as regards which nevertheless, despite that inhibiting factor, we saw fit to recommend to the Home Secretary after an appropriate interval of time release on life licence. In the six years that I was chairman of the Parole Board I recall only one such case which received release on life licence.

I make that point because we were dealing with all the cases of life sentences for the offence of murder. A number did not have such a minimum recommendation attached to them, yet the crimes as we saw them, considering the nature of the offences and their gravity, were considerably more grave than those on which the minimum sentence had been recommended by the sentencing judge. I concluded by saying that I felt then (and I feel now) that the procedure laid down in the Criminal Justice Act 1967, by which, following a favourable recommendation by the Parole Board, the Home Secretary has by statute to consult with the Lord Chief Justice and the trial judge in making his decision, is totally satisfactory and much fairer than the inconsistent application by some judges to some cases of the minimum recommendation. I am very much in favour of the amendment.

Lord Denning

My Lords, I just wish to repeat the arguments that I have made previously on this point. The judge, in sentencing a man who has been convicted of murder, is expressing public opinion on the matter. The judges should carry public opinion with them. When it is a particularly horrendous murder the judge should express that opinion by saying and recommending that the man should not be let out of prison until after 10, 15 or 20 years, whichever it may be. It is in answer to public opinion that the death penalty has now gone. On the other hand of course it can be reviewed, and I would deplore any private communications by the judge to the Home Secretary or anyone else as to what the length of time should be.

5.30 p.m.

Lord Windlesham

My Lords, I should like to echo what the noble and learned Lord, Lord Denning, has just said as to how we should address ourselves to this subject. We need to accept the public must be reassured that persons who are convicted of murder—the gravest crime in the criminal calendar—are properly punished and are not returned to society too soon.

I want to contend this afternoon that the way the mandatory life sentence has evolved over the past 20 or more years has led to confusion between judicial and executive functions; a review procedure of ever-increasing complexity; and widening opportunities for injustice. I should make clear at the outset that none of this was planned or intended by this Government or their predecessors. It is simply, as is so often the way in our legal history, the way things have turned out.

If we go back, as we must, to 1965 when capital punishment for murder was abolished, it then became mandatory, as was explained on the previous amendment, for a person convicted of murder to be sentenced to imprisonment for life. Thus, uniquely, the sentence is not imposed by the trial judge; the sentence for murder is imposed by Parliament. It is simply pronounced by the trial judge. He has no power to vary it.

But the court may, at its discretion, declare the period of time which it recommends to the Secretary of State as the minimum period which should elapse before the Home Secretary releases the convicted person. That proviso is included in Section 1 of the Murder (Abolition of Death Penalty) Act 1965. Therefore we have here the first way in which the judiciary can influence the period of time to be spent in custody, although it is Parliament which has prescribed the sentence of imprisonment for life. As we shall see, successive procedural layers have been added in the years that have followed the legislation in 1965.

The objections we have heard from the noble Lord, Lord Hutchinson of Lullington, and from the noble Lord, Lord Hunt, one of my predecessors as chairman of the Parole Board, are that the practice is haphazard and inconsistent. Some judges use the power; other judges do not. It is generally employed by a sentencing judge to reinforce the denunciation and feeling, of abhorrence of society as a whole towards the circumstances of a particularly grave crime of murder.

However, it is not always so. In the case of the Moors murders—I say this in the presence of the noble Earl, Lord Longford, who has taken such an interest in the case—there was no minimum recommendation. In the case of the murder of Mrs. Mackay by the Hosein brothers, a most notorious case, there was no minimum recommendation. But let us cling on to one central fact: the recommendation is made in open court by the trial judge from the Bench at the conclusion of the proceedings.

The Earl of Longford

My Lords, may I interrupt the noble Lord on one point? Can he tell us whether in fact in the cases he mentioned, and in other cases where there has been no public recommendation until recently, there were private communications and, if so, were they taken note of by the Parole Board?

Lord Windlesham

My Lords, I should like to come to that when I describe the current procedures, including the private advice given by the sentencing judge to the Home Secretary. There has been a long-standing facility—as noble and learned Lords on the Cross-Benches who have tried murder cases will be aware—that at the conclusion of a murder trial the judge can write to the Home Secretary. That facility has become formalised in order to set a date when the case of a life sentence prisoner can first be considered for release on licence.

This difficulty does not arise with determinate sentence prisoners because those who are sentenced to a fixed term of imprisonment have a statutory right under the Criminal Justice Act 1967 to have their sentences reviewed after serving one-third, or a minimum qualifying period, whichever expires the later. This right to be reviewed at the one-third point, and annually thereafter, is not to be confused with the actual release of the prisoner which may, or may not, be granted at any stage between one-third and two-thirds of his sentence.

It has already been pointed out that some of the changes in parole practice which were announced by the then Home Secretary in November 1983 concerned life sentence prisoners. Instead of the timing for the first review being set by a joint Home Office/Parole Board committee, of which I was the chairman at the time (two noble Lords opposite preceded me in that capacity), the Home Secretary declared that he would look in future to the judiciary in the shape of the Lord Chief Justice and the trial judge, if available, for an initial judicial view on the requirements of retribution and deterrence.

When expressed in terms of a period of years that advice becomes the judicial tariff—if we use that word for the purposes of debate—in the case. Some three years before the expiry of the tariff the case is referred to the local review committee at the prison and subsequently to the Parole Board. I come now to the question put to me by the noble Earl, Lord Longford. It is at this stage that the Parole Board becomes aware of the advice on tariff that has been given by the trial judge to the Home Secretary, but not before.

When the Parole Board considers the case it does so primarily, although not exclusively, on the basis of the risk to the public if the prisoner is to be released on licence. If the Parole Board does not so recommend, then the Home Secretary has no power to release the prisoner. If the board does recommend in favour of release, then the final decision remains with the Home Secretary.

Parliament has never agreed that the ultimate decision should he transferred from him, as the Minister accountable to Parliament, to an appointed body. He does not have to accept the advice he is given. It is he who is answerable, and it is he who has the responsibility in the last resort. By law he is also required to consult, before releasing any prisoner, the Lord Chief Justice and the trial judge, if available, before doing so. Under the current procedures, this is the second judicial consultation. The first is to set the tariff, the second, perhaps many years later, is when the actual release of the prisoner is being contemplated. I apologise at this point for the complexity of what I have described. If, as I believe, life sentence procedures are becoming increasingly complicated and unsatisfactory, in this House we have an obligation to try and grasp in outline how they work in practice.

We are not at the end of the story yet. The latest superimposition on a far from straightforward procedure is that, in response to a decision of the Divisional Court in the Handscomb case, the judge is now being asked to write to the Home Secretary in every life sentence case, through the Lord Chief Justice, at the conclusion of the trial giving a view on the period of imprisonment necessary in the interests of retribution and deterrence. This requirement applies irrespective of whether the life sentence was mandatory, in cases of conviction for murder, or whether it was within the discretion of the court, as it is in cases of manslaughter and other offences which carry liability to life imprisonment as the maximum sentence. Noble Lords will be relieved to know that that concludes the descriptive part of my speech.

Where are we now? From 1st October 1987 there is a new situation. In all cases of murder there is the mandatory life sentence, imposed by Parliament, that cannot be varied by the court. As we heard on the previous amendment, this distorts the whole sentencing process. In particular, it throws undue emphasis on the defence of diminished responsibility. Most people who have studied the penalty for murder believe that without diminished responsibility, thrown in as a make-weight in the Homicide Act in the 1950s, the present system could hardly have survived at all. Now, no sooner has the trial judge pronounced the sentence, with or without a minimum recommendation, than he sits down to advise the Home Secretary in his private letter of the minimum period of imprisonment which, in his view, the circumstances of the crime warrant.

By this devious route we have arrived at precisely the position which was rejected in 1980 by the Criminal Law Revision Committee—referred to by the noble and learned Lord the Lord Chancellor—in their 14th Report (Command Paper 7844); namely, that recommendations in every case would inevitably come to resemble a determinate sentence. That is a powerful conclusion with which it is hard to disagree.

My Lords, I believe there is only one way out of the morass in the short term. I am encouraged by what the noble and learned Lord the Lord Chancellor has said about a longer-term review. He has told us that he is prepared to refer the law of murder, and the penalty for murder, for a more thorough and careful inquiry before committing the Government to legislative change. I support that and was pleased to hear what was said.

However, we need a short-term expedient. It seems to me that the right way to approach this, paradoxically, is to preserve the power which Lord Hutchinson's Amendment No. 43 seeks to remove, substituting a public recommendation in open court in all life sentence cases for the private advice which is currently given by the sentencing judge to the Home Secretary. Justice should be as open as possible. Often it is an ideal that is difficult to achieve, but here is a way in which it could be achieved.

I confess to some reservations about the appropriateness of attaching a judicial remedy to what is essentially advice as to how a Minister should use his executive authority. Nevertheless, if we are selecting the least objectionable alternatives and trying to evolve a defensible system until the noble and learned Lords' review can get to work, I accept that there is a case for judicial recommendations in open court to be subject to a two-way appeal to the Court of Appeal. That is the subject of the next amendment, Amendment No. 44.

For those reasons, it does not seem to me necessary to press Amendment No. 43. Indeed, to do so would shoot my fox because I want recommendations on tariff to be made, as I have argued, publicly in court at the conclusion of the trial, rather than privately in a letter to the Home Secretary. On the right to appeal, I am in sympathy with the broad aims of Amendment No. 44.

My Lords, I am afraid I have spoken for some time on this amendment, for which I apologise, but it is a matter of considerable importance.

Lord Harris of Greenwich

My Lords, I welcome the noble Lord, Lord Windlesham, as a supporter of the next amendment, which is in my name. Therefore I have found much of his speech persuasive, certainly as far as the wholly unsatisfactory character of the present arrangements are concerned. The House has now had the advantage of listening to one of my predecessors as chairman of the Parole Board and also my successor. I do not quite know what the collective of Parole Board chairmen should be. Perhaps "a cell" would be the most appropriate. I think that all three of us who have dealt with this matter over a number of years have come to the conclusion that the present arrangements are profoundly unsatisfactory.

I do not share the view of the noble and learned Lord, Lord Denning, who is the only uninhibited opponent of this amendment we have so far heard this afternoon, who finds the idea of making a minimum recommendation extremely satisfactory because in his view it meets public anger, public anxiety, at the time of the trial and at the time of conviction.

That view is extremely difficult to support on the basis of the evidence, part of which was cited by the noble Lord, Lord Windlesham. If your Lordships look at some of the most notorious cases where people have been tried for murder and convicted, you will find that the trial judge did not make a minimum recommendation.

As the noble Lord, Lord Windlesham, rightly said, there was no minimum recommendation in the Moors murder case; there was no minimum recommendation in the Hosein brothers case—the murder of Mrs. Mackay. There was no minimum recommendation in the case of the M.62 coach bomb when Judith Ward blew to pieces a number of service families travelling on a coach. There was no minimum recommendation in the Birmingham bomb case either.

In all four cases there was no minimum recommendation. Yet in other cases which my noble friend Lord Hunt and the noble Lord, Lord Windlesham, will have seen—and I certainly saw— there have been minimum recommendations which attracted far less public concern than the four cases I have cited. The reason for that is as follows. A number of judges will now not make minimum recommendations. A number of previous judicial members on the Parole Board told me that they had not done so, and that they would not do so. Their view was that it was far better to leave the matter to the Home Secretary of the day, acting on the recommendation of the Parole Board. The present legislative situation is wholly understandable in the context of the political situation of 1965 when Parliament passed the Death Penalty Abolition Act. I find it far less satisfactory to have the situation remaining as it is on the statute book.

I do not think that one can exaggerate the effect that the minimum recommendation has on the Parole Board. Before the noble Lord, Lord Windlesham, became chairman, there was a committee of the board presided over by the chairman of the board. The vice-chairman was always a High Court judge and there were also a member of the board, a consultant psychiatrist and two Home Office officials. At about the three year stage they took a preliminary view as to how long a convicted murderer, or life sentence prisoner, would serve. I believe that the procedure was initiated by the noble Lord, Lord Carr, when he was Home Secretary. I think that there was a great deal of advantage in the system and I regret the fact that it was eliminated.

As a result, I must have considered over 800 life sentence cases. The idea that the minimum recommendation cases were by far the worst we considered was a view impossible to sustain. I became increasingly worried about the fact that my colleagues—understandably, in my view—took the view that if a judge had made a minimum recommendation they were bound to take the most serious view of it. Therefore, one had two categories of life sentence cases; those which were looked at upon their merits, and those which were not looked at wholly upon their merits. I think that that situation is unsatisfactory and it is time that Parliament changed it.

Lord Campbell of Alloway

My Lords, with respect, the amendment is not acceptable for two short reasons. First, it would not be acceptable to the general public in the present state of the law, pending a general review. Secondly, as has been explained by my noble friend Lord Windlesham, would it not shoot his fox, which I find rather an attractive fox? That applies particularly to the form of Amendment No. 44 which I supported at the Committee stage. It is another matter if the recommendation is made in open court. I believe that Amendment No. 43 would not be apt. However, I accept the point that in this area there is a case for short-term measures along the lines of Amendment No. 44, pending a general review. I oppose Amendment No. 43.

Lord Morton of Shuna

My Lords, I hope that the noble Lord, Lord Hutchinson, will consider not pressing Amendment No. 43 and pressing Amendment No. 44. If one examines Amendment No. 43, one is saying that a judge should never express a view as to how long a life sentence should be. I believe that there is a difficulty in saying that; and, logically, a judge must be considered to have a view of the appropriate life sentence. The answer should be that all the recommendations which are now made privately should be made publicly, so that the person sentenced can appeal if he is so advised. I hope that that course will meet with the noble Lord's approval.

Lord Simon of Glaisdale

My Lords, I am sure that all noble Lords feel deeply indebted to the noble Lord, Lord Windlesham. I am wholly persuaded. Any recommendation made should be made in open court so that it is understood by the public and the defendant and—although this anticipates the next amendment—so that it is reviewable.

When dealing with the previous amendment, my noble and learned friend on the Woolsack invited comments as to how this matter—which is, at the moment, in a mess—should be reviewed. I am in a difficulty because I think that the Criminal Law Revision Committee has already committed itself to the view that the offences of murder and manslaughter should remain distinct and should not be amalgamated into one offence of culpable or criminal homicide.

In his draft criminal code, Professor Smith, in accordance with his usual practice and the universal practice, has not gone against that latest recommendation. Therefore, the draft criminal code, which is now being examined by the Law Commission, maintains that distinction.

I respectfully suggest that my noble and learned friend on the Woolsack might consider asking the Law Commission, in consultation with the Criminal Law Revision Committee, to look at the problem urgently and immediately and to present an interim report.

Lord Paget of Northampton

My Lords, I am entirely in agreement with what has been said by the noble and learned Lord, Lord Simon of Glaisdale. Having been thoroughly converted by the noble Lord, Lord Windlesham, I find it hard not to be allowed to vote on his amendment and I feel strongly about that.

My noble and learned friend put forward the idea that the sentence should be the subject of comment by the judge, and it would be wrong to say that he should not make a comment and recommendation on it. It is not the judge's sentence; it is Parliament's sentence. The judge has no discretion about the sentence so why should he make a recommendation on a matter which is not his responsibility?

A point which has always weighed on me is that when the matter goes to the committee of the noble Lord, Lord Windlesham, two issues must be considered. First, what was the crime; secondly, what has happened to the man since? Has he changed? How has he changed? The judge's recommendation can only be based on the first question, so one is asking the Committee to accept the worst evidence. It is evidence which is no longer relevant because it comes from a man who has considered only half of what should be considered.

I hope that the noble Lord. Lord Windlesham, will give the House an opportunity to vote on this amendment. I have heard the observation of the noble Lord who sits behind him to the effect that the amendment would not be acceptable to the people. We have seen a certain sample of the people here. Almost all of them have been persuaded by the noble Lord, and I think that we ought to be allowed to express our swing of opinion.

Lord Hutchinson of Lullington

My Lords, perhaps I may be allowed to point out to the noble Lord that on this occasion I am not being led by the noble Lord, Lord Windlesham. If anybody is to give the noble Lord an opportunity, it will be for me to give it to him

Lord Paget of Northampton

I am extremely sorry, my Lords.

6 p.m.

The Lord Chancellor

My Lords, it is perhaps an interesting comment on the difficulty in this area of the law that in support of the last amendment some noble Lords argued in favour of giving a very wide discretion indeed to judges when passing sentence, ranging from small sentences up to life imprisonment in cases of murder; whereas when Parliament gave a discretion to the judges whether or not to declare a minimum period, a degree of uncertainty arose about the uniformity with which the judges exercised that discretion. That is illustrative of the difficulty in this area. but I do not press the point further than that.

In 1965, when Parliament changed the law in relation to this matter, it gave judges the power to declare the period recommended to the Secretary of State as the minimum period which should elapse before he orders the offender's release on licence. That was a discretion whether or not to make a recommendation at all; and then of course, if the court decided to make a recommendation, it was empowered to suggest the period recommended. In 1972 that provision was the subject of consideration in Scotland by a committee headed by the Lord Justice-General—I think it was before he actually took up that appointment—the noble and learned Lord, Lord Emslie. In 1980 during discussions on the Criminal Justice (Scotland) Bill, the Government proposed that the recommendation of the committee headed by the noble and learned Lord, Lord Emslie, should be put into effect and it was noted that as a consequence there would be an obligation upon the judge in every case to state a minimum recommendation. I rather think that that is the line that the noble Lord, Lord Windlesham, is suggesting.

However, the noble and learned Lord, Lord Fraser of Tullybelton, whom I am very glad to see in his place, and other noble Lords in this House raised a question first at Committee stage and then at Report stage about this proposed change in the law following the Emslie Committee's recommendation, and the House voted on the matter. The result was that Parliament decided that there should not be an obligation in every case to declare a minimum recommendation. I am sure that the noble and learned Lord, Lord Fraser of Tullybelton, will remember the eloquent speech that he made at the Committee stage against the imposition of a general obligation of that kind. So we are in a very difficult area in which to make progress by complete consensus.

Lord Windlesham

My Lords, perhaps the noble and learned Lord will forgive me if I ask whether the situation has not been transformed since those earlier debates by the newly introduced practice in which the trial judge is asked to write in private to the Home Secretary in every instance giving an opinion on what should be the period to be served in the interests of retribution and deterrence?

The Lord Chancellor

My Lords, I intended to try to deal with that point. I agree that the development of the practice of correspondence, which has been necessary between the trial judge and the Secretary of State right from 1965—and which, as one would expect, has been entirely accurately described by my noble friend Lord Windlesham—is a circumstance which might well change the situation. Certainly for my part I should have been glad to hear the views of experienced judges upon the matter.

I think that it is at least questionable whether judges could be forced to write in every case and give a minimum recommendation, but in practice, as the noble Lord said, I think they do so. They have always been consulted. The statute required that, before releasing a prisoner who was sentenced to life imprisonment under the Act, the Home Secretary should consult the Lord Chief Justice and the trial judge if he was available. The result was that the trial judge was consulted a very long time after the event. Your Lordships may feel that even the memories of trial judges fade somewhat over such a period of time and that there is an advantage in the more modern procedure under which the trial judge immediately gives a view upon the matter.

The present situation is certainly quite a difficult one but it is not one in which I could advise your Lordships to accept this amendment. It seems to me that this amendment does not do anything to improve the situation. Indeed, despite the view expressed by the noble Lord, Lord Windlesham, with all his great experience, which has persuaded at least the noble Lord, Lord Paget of Northampton, and I am sure many other noble Lords, the amendment should not be accepted if your Lordships accept my submission.

Lord Hutchinson of Lullington

My Lords, it appears from our debate quite clearly that there has been only one voice to support the present procedure. That voice came from the noble and learned Lord, Lord Denning, who suggested that this provision was essential in order that the judge could express the opinions and feeling of abhorrence of the public. I am hound with the greatest respect to ask him: what about a case of diminished responsibility, or a case of arson, or a case of rape, or a case of robbery? In all such cases, when the judge wishes to impose a life sentence, should not that feeling of abhorrence be expressed?

Of course it is and always has been open to the judge at trial to make whatever observations he likes, including expressions of abhorrence and so on, during the sentencing process. No doubt he does that very well, as, with some exceptions, the judiciary usually do in relation to all serious criminal offences and not only in cases of murder, which, as the House has already heard and I think will agree, is very often a less serious form of crime than the others to which I have just referred.

It also seems quite clear from the debate that everybody who has listened to the arguments accepts—must they not?—the views of the three distinguished chairmen of the Parole Board, to whom we have had the privilege of listening. I shall not rehearse what they have said, but their various descriptions of the effect of this particular part of the law that we wish to remove in the Bill can be summarised in the words "distorting the whole sentencing process", "a morass", "a mess" and so on. When we know that the noble and learned Lord, Lord Roskill, with all his experience, wishes to get rid of this power of the courts, and after hearing of the effects that this power has on the sentencing process, surely we must conclude that the time has come to abandon it.

To the noble Lord, Lord Windlesham, I say that the view that one would be shooting his fox by getting rid of this power is surely not correct. I am not an expert in shooting foxes; I am or was better with birds. However, surely if we remove this power altogether it leaves the judge at trial in the position of passing a life sentence—full stop and finish. In imposing the sentence he can add anything that he wishes to add, to reflect his view of how abhorrent the particular offence is. He may express the view, which often judges do, that he sincerely hopes that this person will not be released for a very long period. Those observations that he makes in public will be recorded for ever.

He will then be consulted in the normal course of events, as the noble and learned Lord the Lord Chancellor has just said, at the time when it is being considered whether the person should be released. That is surely an advantage, not a disadvantage as has just been said, because by then the trial judge will have had time to see the reports on the person concerned. Moreover, time will have elapsed, public opinion in relation to one offence as opposed to another may have taken a different course and so on, and reading back through the papers and his observations at the time he can, of course, express his view and be consulted.

The present requirement is a purely administrative matter. It is not a matter of legislation; it is a matter of administration which can of course be altered overnight. That is a matter for discussion. That is a matter for the chairman of the Parole Board to raise with the Secretary of State. But in this House at this moment with this Bill before us, we are dealing with legislation; we are not dealing with administration. If there is a mischief going on at the moment—and quite clearly there is— in the relations between the Secretary of State and the judiciary, and it is not due to legislation, then it is no business of ours at this moment when we are discussing this amendment. The first thing we have to do is to get rid of this power, let things get back to where they ought to be and I suggest that the judge imposes a simple sentence of life imprisonment.

Lord Windlesham

My Lords, may I ask the noble Lord before he sits down, if indeed he was about to sit down, whether his final remarks take account of the recent change announced by the Home Secretary in July, and introduced on 1st October, by which all judges are asked when passing a life sentence to write to him through the Lord Chief Justice? That was in response to a decision in the Divisional Court. If the Home Secretary had not made the change on his own initiative the previous system would have continued. It was in response to a ruling of the court. Has the noble Lord taken that point into account?

Lord Hutchinson of Lullington

My Lords, I say in reply that I most certainly have taken that into account, because the ruling of the court in Hanscomb was not a ruling that judges should make a recommendation of this kind or that kind. That is my recollection, but I may be wrong. If the ruling of the court was specifically that judges had to make a recommendation, then I would agree with the noble Lord. Lord Windlesham. But I was under the impression that it was a ruling of the court that the present procedures meant that persons were not having their sentences considered at a time when they ought to be considered, and that something had to be done to see that they were considered at the proper time. As a result of that ruling, this instruction has been issued to the judges which is a very different matter. But in all the circumstances, I am certainly minded to test the view of the House on this matter.

6.15 p.m.

On Question, Whether the said amendment (No. 43) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 121.

DIVISION NO. 1
CONTENTS
Airedale, L. Jay, L,
Ardwick, L. Jeger, B.
Avebury, L. John-Mackie, L.
Beaumont of Whitley, L. Kilbracken, L.
Birk, B. Kilmarnock, L.
Blease, L. Lloyd of Kilgerran, L.
Bottomley, L. Longford, E.
Carmichael of Kelvingrove, L. McCarthy, L.
Carter, L. Mackie of Benshie, L.
Cledwyn of Penrhos, L. Mishcon, L.
David, B. Molloy, L.
Dean of Beswick, L. Mulley, L.
Diamond, L. Nicol, B.
Donaldson of Kingsbridge, L. Paget of Northampton, L.
Donoughue, L. Perry of Walton, L.
Ennals, L. Peston, L.
Ewart-Biggs, B. Ponsonby of Shulbrede, L.
Foot, L. Ritchie of Dundee, L.
Gallacher, L. Silkin of Dulwich, L.
Graham of Edmonton, L. [Teller.] Stoddart of Swindon, L.
Tordoff, L.
Grey, E. Underhill, L.
Harris of Greenwich, L. Wells-Pestell, L.
Henderson of Brompton, L. Whaddon, L.
Houghton of Sowerby, L. Williams of Elvel, L.
Hunt, L. Winchilsea and Nottingham, E.
Hutchinson of Lullington, L. [Teller]
Ypres, E.
Irvine of Lairg, L.
NOT-CONTENTS
Abercorn, D. Joseph, L.
Abinger, L. Kimball, L.
Alexander of Tunis, E. Kitchener, E.
Allenby of Megiddo, V. Lane-Fox, B.
Arran, E. Lauderdale, E.
Atholl, D. Lawrence, L.
Balfour, E. Long, V.
Beaverbrook, L. Lucas of Chilworth, L.
Belhaven and Stenton, L. Lyell, L.
Beloff, L. McAlpine of Moffat, L.
Belstead, L. Mackay of Clashfern, L.
Blyth, L. Macleod of Borve, B.
Boyd-Carpenter, L. Malmesbury, E.
Brabazon of Tara, L. Marley, L.
Broadbridge, L. Merrivale, L.
Brougham and Vaux, L. Mersey, V.
Buckmaster, V. Monk Bretton, L.
Butterworth, L. Monson, L.
Caccia, L. Morris, L.
Caithness, E. Mottistone, L.
Caldecote, V. Moyne, L.
Cameron of Lochbroom, L. Munster, E.
Campbell of Alloway, L. Murton of Lindisfarne, L.
Campbell of Croy, L. Nelson, E.
Carnegy of Lour, B. Onslow, E.
Carnock, L. Orkney, E.
Cathcart, E. Oxfuird, V.
Coleraine, L. Peyton of Yeovil, L.
Colnbrook, L. Plummer of St Marylebone, L.
Constantine of Stanmore, L. Portland, D.
Cottesloe, L. Rankeillour, L.
Cox, B. Reay, L.
Craigavon, V. Romney, E.
Craigmyle, L. Russell of Liverpool, L.
Davidson, V. [Teller.] St. Davids, V.
De La Warr, E. St. John of Fawsley, L.
Denham, L. [Teller.] Saltoun of Abernethy, Ly.
Denning, L. Sandford, L.
Dilhorne, V. Shackleton, L.
Dormer, L. Simon of Glaisdale, L.
Dowding, L. Skelmersdale, L.
Dundee, E. Somers, L.
Elliott of Morpeth, L. Stanley of Alderley, L.
Elton, L. Stockton, E.
Forlescue, E. Strabolgi, L.
Fraser of Kilmorack, L. Strange, B.
Fraser of Tullybelton, L. Stralhcona and Mount Royal, L.
Glenarthur, L.
Goold, L. Swansea, L.
Grantchester, L. Terrington, L.
Gridley, L. Teviot, L.
Hailsham of Saint Marylebone, L. Thomas of Gwydir, L.
Thomas of Swynnerton, L.
Havers, L. Trafford, L.
Hertford, M. Trefgarne, L.
Hesketh, L. Trumpington, B.
Hives, L. Ullswater, V.
Hood, V. Vaux of Harrowden, L.
Hooper, B. Ward of Witley, V.
Hylton-Foster, B. Whitelaw, V.
Jenkin of Roding, L. Windlesham, L.
Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Harris of Greenwich moved Amendment No. 44: Before Clause 41, 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—

  1. (a) quash the recommendation which is the subject of the appeal, and
  2. (b) in place of it make such recommendation as they think appropriate;
but the Court shall so exercise their powers under this subsection that the appellant is not more severely dealt with on appeal than he was dealt with by the court below.")

The noble Lord said: My Lords, I beg to move the amendment standing in my name and that of a number of my noble friends. The object of the amendment is fairly simple. It was dealt with in part during our last discussion, when the noble Lord, Lord Windlesham, indicated his own broad support for it.

The purpose of the amendment is to give a convicted person the opportunity of appealing against a minimum recommendation. It does not require a great deal of effort on my part to demonstrate the significance of the minimum recommendation. I dealt with that briefly during the previous debate. However, to make my point I shall rely upon the language of Home Office Circular No. 55 of 1984, which states: 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. Successive Home Secretaries and successive Parole Boards have obviously taken that injunction extremely seriously because between 1965, when the provision was introduced, and the end of 1986 there were 244 minimum recommendations. In only seven cases were prisoners released before the end of that recommended period. When I was chairman of the Parole Board there was, I believe, only one such case and in that case a Royal Prerogative issue was involved, which was why the then Secretary of State decided to release that prisoner.

As I pointed out during our debate on the previous amendment when recalling my own experience in considering somewhere in the region of 800 life sentence cases as chairman of the joint committee between the Parole Board and the Home Office, the recommendation by the trial judge of the minimum sentence that a prisoner should serve in prison was decisive as regards the Parole Board. I can think of no case on which I sat where there was any attempt made by any member of the Parole Board to challenge that minimum recommendation. That was partly for the reason that I gave when reading out the contents of the Home Office circular. They also knew, apart from anything else, that if a trial judge had made a minimum recommendation of 20 years, for example, it was highly unlikely that any Home Secretary would choose to ignore it. A Home Secretary would have to be a bold man to ignore the publicly expressed view of the trial judge in a highly publicised case and release that man in defiance of the view of that trial judge. He would need courage to face a possible outburst of public criticism at that stage, and that would of course be followed by even more savage criticism were the offender to reoffend while on life sentence licence. That could bring a Home Secretary's career to an abrupt end. As we all know, that particular post has enough problems at the moment without Home Secretaries wishing to find new ways in which to entrap themselves in painful situations.

That is the background. I can think of very few—indeed no—members of the judiciary with whom I have discussed this matter and who have had Parole Board experience who have not expressed to me their private disquiet about a situation in which there is no appeal against the trial judge's minimum recommendation. That is unacceptable. That situation consigns a prisoner to a term of imprisonment on the basis of a publicly expressed minimum recommendation. It gives that man no right whatever to challenge that decision, despite the fact that it has a decisive effect upon, first, the Parole Board and, secondly, the Home Secretary. That in my view is wholly unreasonable and unacceptable.

I can understand why the House took the decision that it did on the last issue. I think it was a mistake but nevertheless I can understand the reasons for it. However, to refuse to give a man a right to appeal in such a situation as I have described would in my view be wholly wrong. I have, I am glad to say, some substantial support for that view. The Criminal Law Revision Committee, whose views we have discussed this afternoon in relation to other matters, has acknowledged that the power has operated "somewhat haphazardly". That is a pretty substantial English understatement. It has sometimes acted in a fairly bizarre way. The Criminal Law Revision Committee recommended in the light of that view that: if the power were retained, recommendations should be treated as part of the sentence; that the provisions applying to appeals against sentence in the case of determinate sentences should apply equally to recommendations; and that a trial judge making a recommendation should state publicly the factors on which he bases his recommendations.

At the moment there is no requirement at all for the trial judge to give any indication of the reason for his recommendation. The giving of reasons might then in such a situation, were the trial judge to indicate the reasons for the recommendation, be of assistance to the defence in deciding whether an appeal should be made, and to the Court of Appeal itself were such an appeal to be heard.

In paragraph 72 of its report, the Criminal Law Revision Committee argued that, if those proposals were implemented, the practice of making judicial recommendations is likely to become established upon a more regular footing because the Court of Appeal will, over a period, be able to set out guidelines as to the circumstances in which a minimum recommendation should be made and the level of such recommendations". That is a powerful argument. It has the authority of the Criminal Law Revision Committee. It is an overwhelmingly sensible view.

There is of course an even more powerful argument as to why that view should be sustained this evening. We have the advantage of having here the noble and learned Lord the Lord Chancellor, who was the Lord Advocate. The recommendation made by the Criminal Law Review Committee for England and Wales already exists in Scotland. In Scotland, as the noble and learned Lord will confirm, the right of appeal against such recommendations was introduced in 1980 (in other words by the present Government) by Section 43 of the Criminal Justice (Scotland) Act 1980. As that provision has been introduced into the law of Scotland and as prisoners in Scotland are entitled to appeal against a minimum recommendation, prisoners in England and Wales should have a similar right. I beg to move.

6.30 p.m.

Lord Boyd-Carpenter

My Lords, there is obviously a good deal of force in what the noble Lord has said in justification of a right of appeal against one of these minimum recommendations. It seems to be a reasonable proposition. However, I am bound to say that I part company with him on the terms of his amendment, and in particular the last three lines, which provide: but the Court shall so exercise their powers under this subsection that the appellant is not more severely dealt with on appeal than he was dealt with by the court below". I can see no reason to insert that provision. I do not see why, if the Court of Appeal thinks that the recommendation was insufficiently firm, it should not say so and substitute its own views. That, after all, follows the general line of these appeals which are a both-way option. If one decides to appeal, believing no doubt, that one has a good case, one has to contemplate taking the chance that the appeal may fail and that its failure may result in the sentence being strengthened. For that reason, I could not support the amendment as it stands.

It is wrong to make the provision merely one way. If one thinks of the matter from a practical point of view, it is of course a standing encouragement for everyone who has a recommendation from the trial judge as to his minimum sentence to go to the Court of Appeal. Such a person stands there with nothing to lose. It is a safe option for him. Your Lordships would find that, if the law were to be so amended, the Court of Appeal would have a substantial amount of wholly unnecessary business forced upon it; whereas, if the Court of Appeal has the option to increase as well as to decrease the recommended figure, then those who advise the convicted man will have to consider carefully whether they have a good and satisfactory case which it is worthwhile taking to the Court of Appeal and using up the court's time. Unless the noble Lord is prepared to drop those last three lines, I shall feel bound to vote against his amendment.

Lord Denning

My Lords, I am nervous about this amendment. In a way, the recommendation is not a sentence by the judge; it is a recommendation which is not in law enforceable, and the Secretary of State is not bound by it. I think that that is expressly set out in the Act. I know that in practice the recommendation has been treated as fairly binding on the Parole Board but, on the other hand, in point of law it is only a recommendation. Therefore, it is not a proper case for appeal.

I wish to make a further point. If a judge is to be subjected to appeal whenever he makes such a recommendation, the great majority of judges will not make any recommendation; in other words, we will obtain the same effect by a side wind. I do not think a judge should be deterred from making a recommendation when it is a particularly horrible case. He can make a recommendation as to the minimum sentence which the person should serve. It is only a recommendation. Like my noble friend Lord Boyd-Carpenter, I do not support the amendment.

Lord Simon of Glaisdale

My Lords, as I said on the last amendment, I am generally in favour of this amendment. If the judge's recommendation has no influence it should not be made, but we know, from what we have been told, that it has some influence. As it has some influence, and as judges are fallible, the accused should have the right to have the recommendation reviewed by the Court of Appeal (Criminal Division).

Like the noble Lord, Lord Boyd-Carpenter, I find the last three lines unacceptable in the present circumstances. I think I know why the noble Lord included them. Although I have forgotten what the measure was, a provision implementing a recommendation of a committee or commission presided over by Lord Donovan ensured that when there was an appeal against sentence, the appellant would not run the risk of having his sentence increased. If I am right in that, and that is the thinking behind this amendment, the matter must be reviewed in the light of the decision that your Lordships took, and which, sitting on the Cross Benches, seemed to be supported overwhelmingly by argument; namely that the prosecution should also be entitled to test the adequacy and propriety of any sentence. If that provision applies to a sentence, it should apply to any recommendation which has the same effect. I hope that the noble Lord, Lord Harris, will indicate that, if the amendment is carried, he will not be averse at a later stage to the removal of the last three lines.

Lord Somers

My Lords, speaking purely as a layman, I wonder whether there is not a slight danger with this amendment. If my memory serves me correctly, minimum sentences were first introduced because of the strong public feeling that many dangerous criminals were being given sentences which were far too lenient. If we quash that power entirely, I wonder whether it will be in the interests of the public, who, after all, deserve the protection of the law.

Lord Windlesham

My Lords, when either the noble Lord on the Woolsack replies to the debate, or one of the noble Lords on the Opposition Front Bench with experience of the Scottish system speaks, perhaps they could tell us if the appeal in Scotland is one way or two way.

Lord Morton of Shuna

My Lords, having been given that invitation, I should say that, on my understanding, the right of appeal is one way only. That is subject to correction. In Section 205(a) of the Criminal Procedure (Scotland) Act, which was steered through by the noble and learned Lord, the then Lord Advocate—no doubt the noble and learned Lord the Lord Chancellor will be able to speak better than I can on his reason for doing so—nothing is to be found to suggest that there is any power to increase the sentence. It is my understanding that there have been five such appeals which have not increased, or indeed decreased, the recommendation.

On the point of the noble Lord, Lord Boyd-Carpenter, I comment with some hesitation as he has more experience than a recent arrival such as myself. If the noble Lord likes Amendment No. 44 apart from the last three lines, I should have thought that there were various steps that he could have taken, and indeed can still take on Third Reading, to put the matter right.

Lord Boyd-Carpenter

My Lords, it is of course open to the mover of the amendment who agrees that there is a defect therein to withdraw it and to table it in an amended form at the next stage.

Lord Mishcon

My Lords, that course is open to the mover of the amendment at this stage, as I am advised, by moving the amendment with the omission of the last three lines, should he so wish. I mention that not as a recommendation but as an indication of what I am advised is the procedure.

6.45 p.m.

The Lord Chancellor

My Lords, the amendment, which seeks to give a right of appeal in respect of the minimum recommendation, obviously has something to be said for it, as my noble friend Lord Boyd-Carpenter observed. However, there is the problem that this minimum recommendation is entirely discretionary. The right of appeal here in question does nothing therefore in relation to those cases in which there is no minimum recommendation.

As I understood my noble friend Lord Windlesham, that is one aspect of the present situation which from the point of view of a completely logical and satisfactory system is somewhat unfortunate. It may be a question whether it is right to add to those cases in which a minimum recommendation is given this additional right of appeal. The result is surely hound to be that there is some further authority; namely, the authority of the Court of Appeal (Criminal Division), in respect of the particular case in which there has been an appeal.

Against the general background that the noble Lord has described, 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. It is true of course, as the noble Lord, Lord Harris of Greenwich, pointed out, that in 1980 in relation to Scotland the Government proposed an appeal of this kind. The method used in the legislation was to deem the recommendation part of the sentence and to make it subject to the same rules of sentence which generally provide that it cannot be increased on appeal.

As the noble Lord, Lord Windlesham, said, the other procedures have developed a good deal since 1980 and there is a recognised procedure which has been described by the noble Lord, Lord Hutchinson of Lullington, as an administrative procedure but still a procedure that has been publicly recognised and intimated by the Home Secretary in the light of developments that have taken place. in particular the judgment of the Divisional Court in the Handscomb case. In that situation 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.

The point made in relation to the earlier amendment is that the person who is the subject of a minimum recommendation is placed in a special rather significantly different position from others who are the subject of a mandatory life sentence. If some of these are selected as people who have been the subject of consideration by the enhanced authority of the Court of Appeal (Criminal Division), the position is worsened by making such distinct situations even more different than would be the case if there were no appeal. The minimum recommendation is declaratory only, as was pointed out. It is for that reason no doubt that it has not up to now been the subject of a right of appeal in this country. If it was an ordinary sentence, one feels sure that from the beginning it would have been the subject of an appeal. It is not an ordinary sentence; it is something out of the ordinary invented as part of the arrangements for dealing with the abolition of capital punishment and a substitution of a mandatory sentence.

It is a special provision. Your Lordships have already heard just how special it is and how its existence in certain though not all cases makes it more difficult than it would otherwise be for the Parole Board to operate with complete fairness over the whole field with which it has to deal. The same problem applies to the Home Secretary. After all, one has to look at the situation from the point of view of administrative justice as the Home Secretary seeks to develop it. The Parole Board of course has its responsibilities in the same field.

I am not entirely persuaded that to add this right of appeal would necessarily produce a better overall picture of justice either for the Secretary of State or for the Parole Board. In that state of matters, it humbly seems to me that your Lordships might be wise not to pass the amendment. Your Lordships have expressed views that my right honourable friend will be very interested to read and consider. I doubt whether there is sufficient consensus on the best way forward for us to pass the amendment at this stage. I suggest that the wiser course might be not to do so.

Lord Harris of Greenwich

My Lords, for a variety of reasons, not least the point made by the noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord, Lord Simon of Glaisdale, I do not propose to press the matter today. I wish to reflect upon what they said about the last three lines of the amendment. I understand that there is a procedure under which I can tonight withdraw the last three lines of the amendment. I am not sure that that is the most sensible way of proceeding.

The noble and learned Lord the Lord Chancellor has not tonight made one of his most persuasive cases. First, he asked—rather rhetorically, if I may say so—about the attitude of each of the three chairmen of the Parole Board—two past and one present. That has been made absolutely clear. They are in favour of this amendment. I do not believe it creates the immense problems that he perceives are likely to follow for the Parole Board. Otherwise, I do not believe that the three of us would have taken that view.

The noble and learned Lord then says that it will also create hideous problems for the prisoner because he will have to consider whether he is not going to make his position worse by appealing to the Court of Appeal. There is the danger that with the "enhanced authority", as I think he described it, of that tribunal the prisoner would get himself into a worse position. That is a matter which the prisoner and his advisers would have to reflect upon. It is one of the matters they would have to consider before deciding whether to go to appeal in the first instance.

The noble and learned Lord continued by saying there is a third person about whom he is very concerned, and that is the Home Secretary. Why in fact should the position of the Home Secretary be made any more difficult. It is difficult enough already, as I am sure we all accept, in a whole variety of cases. Why should the position of the Home Secretary be more difficult because the Court of Appeal is asked to make a decision? The issue which the Court of Appeal would be determining would not be precisely when the man or woman concerned was to leave prison; it would be deciding only whether the minimum recommendation should be varied.

As to the rest of the argument put forward by the noble and learned Lord, he said quite rightly that the minimum recommendation is a discretionary matter. I think the noble and learned Lord later accepted to some degree that that does not begin to justify saying that although it is in fact entirely discretionary, a man should be debarred from the right to go to the Court of Appeal. As I have indicated, and as the noble Lords, Lord Windlesham, and my noble friend Lord Hunt have agreed, these minimum sentence recommendations are in most cases decisive so far as the Home Secretary and the Parole Board are concerned.

The language of the Home Office circular which I invite the noble and learned Lord to look at, re-emphasises the decisiveness of that minimum recommendation.

The noble and learned Lord, Lord Denning, said that he was fearful that if there was a right of appeal in such cases the majority of judges would be deterred from making a minimum recommendation in the first place. I have already indicated that a very substantial number of judges are deterred at the moment because they do not happen to believe in minimum recommendations.

A number of judges will not, as a matter of principle, make such a recommendation because they prefer to leave it to the Home Secretary. Others sometimes do, giving no reason at the time. Because the matter is (a) decisive in terms of the length of sentence, and (b) unreviewable by the Court of Appeal, it results in a most unsatisfactory situation.

As the noble and learned Lord, Lord Denning, has said, a minimum recommendation is not by itself a sentence. But in only seven cases since 1965 has it in fact not been a sentence. That is a situation which we have to accept. I am deeply troubled as also are a number of members of the judiciary from my own direct personal knowledge. They have observed the character of cases over a number of years as members of the Parole Board. In some cases a minimum recommendation has been made by the trial judge and in others with some of the most notorious criminals coming before the criminal courts, no minimum recommendation has been made. Those two categories of cases are in reality treated totally differently and I can see no justification for such a situation.

I would have undoubtedly pressed this matter to a vote this evening were it not for the issue raised by the noble Lord, Lord Boyd-Carpenter, and the point made by the noble and learned Lord, Lord Simon of Glaisdale.

I hope that the Government will between now and Third Reading, look at this matter again. I certainly would not necessarily fight for every dot and comma on this particular amendment. But the issue of principle is clear. At the moment there are two categories of life sentences; and in one category a prisoner is maybe serving a far longer sentence on the basis of a minimum recommendation which is not reviewed by the Court of Appeal, and in the second, the case will he considered entirely on its merits.

Amendment, by leave, withdrawn.

Lord Donaldson of Kingsbridge moved Amendment No. 45: Before Clause 41. insert the following new clause:

("Functions of Prison Disciplinary Tribunal.

.—(1) For the purpose of exercising the functions conferred on it by this section there shall be a body known as the Prison Disciplinary Tribunal.

(2) Notwithstanding any previous enactment, where a prisoner is charged with any serious or repeated offence against discipline for which the awards the governor can make seem insufficient, the governor shall not refer the charge to the hoard of visitors but may, after investigation, refer the charge to the Prison Disciplinary Tribunal.

(3) The Lord Chancellor or the Secretary of State may make rules for the membership of the Prison Disciplinary Tribunal, the proceedings of the Tribunal on charges referred to it and the imposition of penalties by the Tribunal.

(4) It shall be the duty of the Prison Disciplinary Tribunal to inquire into any charge referred to it under rules made under subsection (3) above and, if it finds an offence against discipline proved, to impose penalties as prescribed by those rules.").

The noble Lord said: My Lords, I do not think we shall get through this amendment in five minutes. In those circumstances would it not be better to break for supper?

Lord Denham

My Lords, it is very difficult when one has arranged to have an adjournment at about seven o'clock, to have it before seven o'clock because there may be noble Lords who wish to take part in the discussion. We always adjourn between seven and half-past and that will give the noble Lord a little leeway.

Lord Donaldson of Kingsbridge

I am very sorry to keep noble Lords from their supper hut I have no alternative.

There are two amendments here, and with the leave of the House I should like to speak to Amendments Nos. 45 and 46 but to vote on them separately. There are two issues and the first is that disciplinary duties should he removed from the duties of the boards of visitors. That means that something else must be set up to carry out those duties. That is as far as Amendment No. 45 goes.

The second is that any tribunal which is set up to carry out such work should be constituted in a way that it stands as a judicial tribunal and will he empowered to act for all prisoners and thereby maintain consistency in its decisions.

Amendment No. 46 lays down the composition and procedure of such a tribunal which is recommended by the Prior Report. First, I refer to Amendment No. 45. I remind the House why the noble Earl, Lord Jellicoe, and I some years ago and Mr. Peter Prior and his colleagues last year, urged that these disciplinary duties should not belong to or be part of the duties of the board of visitors. The proper duties of the board are to look after the interests of prisoners and staff; to be available to hear complaints; to be easily seen when going around the prison and to do so frequently. It is also its duty to support the governor in his efforts to obtain approval for improvements from the Home Office, and in emergencies to act as a direct line to the Home Secretary. If there is a crisis and it has been allowed to get out of hand, it has a direct line to the Home Secretary and this is an important part of its duties although seldom used.

We think that the board must be seen to be on the side of the prisoners. It must be a group of people to whom the prisoners can turn. We think the disciplinary duties are a real disadvantage towards creating the best atmosphere.

I am not going to say any more about this because it seems obvious. There was a good deal of support for this in Committee. I hope that when we come to vote on Amendment No. 45, noble Lords will find that they can support that amendment whatever difficulties there may be in the Government's view of executing it. That is something which the Government have to sort out for themselves.

As regards this amendment, not only do we have the support of the noble Earl, Lord Jellicoe,who unfortunately cannot be here, but also the support of the Opposition. We have the support of the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Simon of Glaisdale. For nearly a year we had the support of the Government, too, from their White Paper last year until the cataclysmic change of heart of the noble Earl on 25th February last when he announced that nothing would he altered beyond the revised disciplinary code. The noble Earl explained to us in Committee that this was because of a lack of agreement as to the type of tribunal to be set up. However, as the Government agree that the combination of friendly help and the issuing of punishments by the same body is unsatisfactory, I hope that the House will at least accept the first amendment and leave it to the Secretary of State to make up his mind as to the form of tribunal required. If that is accepted, we can then discuss Amendment No. 46 which deals with the legal machinery recommended by the Prior Committee.

Noble Lords must remember that the penalties concerned can be very severe. The maximum loss of remission was 180 days, but I am glad to say that it has now been reduced, with the Government acceptance of one of the Prior recommendations, to 120 days. However, that amounts to a sentence of an extra three months' imprisonment. Remission, of course, is a privilege but one which can only be forfeited by proved misconduct and it is utterly wrong that sentences of this kind should be handed out without the proper judicial supervision.

I repeat what was said in Committee. This tribunal has the support of all people professionally concerned in this field with the exception of the majority of boards of visitors; but, curiously enough, there is an Association of Visitors Boards which supports the amendment. It is also supported by the Magistrates' Association, the Law Society, the prison governors' branch of the Society of Civil and Public Servants, the Prison Officers' Association, our own, parliamentary All-Party Penal Affairs Group, NACRO, the Howard League and the Prison ReformTrust. When one backs this up with two very careful reports, one chaired by the noble Earl, Lord Jellicoe, and the other by Mr. Peter Prior—10 years apart but very nearly making the same recommendation—one is certainly confronted by what appears to be an obstinate refusal.

Kai Lung, that very good adviser, once said: A prickly mimosa is defence enough for a naked man armed only with a just cause. Our cause is just but we are naked against the in-built majority on the other side, and the Home Office protection of the Minister is certainly prickly enough. This is a non-party issue. What may and, I am afraid, will happen is that a number of strange faces who have not listened to the argument will come into the House and support the Government in their determination not to put right what is admitted to be unsatisfactory in a sphere which is increasingly tense and difficult.

My own belief and the belief of my colleagues and the other people who support this amendment is that one of the provisions which can do most to ease the tension in a prison is a really effective board of visitors. We believe that unless at least Amendment No. 45 is carried and, preferably, Amendment No. 46, the possibility of strengthening the position of prison governors will be missed. I beg to move.

Lord Simon of Glaisdale

My Lords, I do not know whether it is convenient to intervene at this moment and whether it interferes with the dinner arrangements, but I hope noble Lords will indicate if they are becoming hungry and would rather that the debate was adjourned at this point.

I would have put my name to these amendments were it not that I had misgivings about the drafting and the machinery; but as to the principle, I confess I have no doubt at all. Where the liberty of the subject is concerned and he is liable to imprisonment it seems to me that he is entitled to a tribunal with a legally qualified chairman. The noble Lord, Lord Donaldson, has deployed all the arguments which I shall not repeat. Having indicated a generally favourable view in Committee, I am grateful to the noble Earl for having written me a long letter setting out his views. The noble Earl must have worked fantastically hard between Committee and Report and it is a matter of regret, under those circumstances, that I was not persuaded by his letter. I only desire to say that it is many years since I had responsibility for prison administration, though of course when I went on assizes, like other judges on circuit, I invariably visited the local prison. However, even so, my experience is long out of date.

We had a rather similar problem in the Percy Royal Commission on mental health of which, I suppose, I am the last surviving member. There was a question of the liberty of persons who were compulsorily detained on the ground that they were considered to be of unsound mind. There again, there were visitors who visited the mental hospitals. I do not, for a moment, equate that with the prison visitors but there is that parallel. We discussed this matter at great length and came to the firm conclusion that a mental health review tribunal should be set up, legally chaired, and that was accepted without demur when the Mental Health Act 1959 was passed.

If it was necessary in that case—the liberty of the subject being a concern—to have an independent tribunal, legally chaired, it seems even more necessary in the present case for the reasons given by the noble Lord, Lord Donaldson.

I thought that the recruitment argument that was put forward by the noble Earl in his most helpful letter was overdone. I do not believe that if we managed with the Mental Health Review Tribunal we would really have any difficulties in this field. I therefore support the amendment.

Lord Mishcon

My Lords, on behalf of the Opposition let me say at once that we support this amendment, as the noble Lord, Lord Donaldson, indicated. Possibly the power of our support may be measured by the brevity of my speech.

In those circumstances perhaps I may merely emphasise the following points. The board of visitors at the present moment—a body whose main function is regarded as being one of listening to complaints from prisoners and seeing whether they are justified—has the power to impose up to 180 days' loss of remission. If they happen to be consecutive offences that limit of 180 days can obviously be exceeded. It seems transparently obvious that it is the wrong body to be able to do this, to have the respect of the prisoners or to carry out its proper objective functions. That is the first point.

Secondly, this is not the view of some Members of your Lordships' House who have decided to put some revolutionary amendment down at Report or any other stage on this Bill. As the noble Lord, Lord Donaldson, pointed out, this was the view of the committee chaired by the noble Earl, Lord Jellicoe. The previous Home Secretary, Mr. Leon Brittan, set up a committee which was chaired by Mr. Peter Prior. This is the very recommendation—as the noble Lord, Lord Donaldson, said, with very little difference—put forward by the Prior Committee and the Jellicoe Committee.

The third point is that everybody seems to agree with this proposal except the Home Office administration at the moment. I say "at the moment" because I am hoping that there will have been a change of mind over the last few minutes, having heard the speech of the noble Lord, Lord Donaldson, the noble and learned Lord, Lord Simon, and myself—I cannot think of a more convincing trio! I hope therefore that the noble Earl will have changed his mind.

However, the only other people who have put forward any doubt about how to form an alternative body, or to suggest that an alternative body should not be formed in the way mentioned in this amendment, are the boards of visitors. I have an idea that they may feel that there is some reflection on the way in which they have dealt with these matters in the past. That is not so, and one would have thought that their objection at the moment—which I understand may be fairly active but not very active—was the only reason for this amendment not being passed.

When I said that there was no objection to the procedure before, l must tell your Lordships, without wearying you with the cases involved, that there have been a couple of cases—a recent one before the Divisional Court—where the rights of prisoners were very definitely looked at and where what had happened in regard to procedure was frowned upon by the court, and indeed certain principles were laid down.

We now have the opportunity of carrying out the recommendation of two responsible committees. One never knows why committees are set up by Ministers unless they intend to give very serious consideration to their recommendations. We have that opportunity now; the noble Earl has it. I hope that he will take advantage of the opportunity.

The Earl of Caithness

My Lords, these amendments afford us a further opportunity to consider the prison disciplinary system. As I understand the noble Lord, the two new clauses he has tabled are intended as alternatives. One, identical to the one we discussed in Committee, is intended broadly to implement the Prior Committee's proposals for a new Prison Disciplinary Tribunal, with a circuit judge as president, legally qualified chairmen and lay members. The other, as I understand it, is intended in effect to implement the proposals in the White Paper on the prison disciplinary system (Cmnd. 9920) for a new lay body, which would be separate from boards of visitors, to deal with the more serious breaches of prison discipline.

7.15 p.m.

Lord Donaldson of Kingsbridge

My Lords, they are not alternatives. They can be alternatives but they can both be passed. If noble Lords pass the first you leave open the exact construction of the tribunal. If noble Lords pass the second, you fill that in.

The Earl of Caithness

My Lords, I am delighted that the noble Lord has been able to correct me there. In that case I should say "and/or". I explained in some detail in Committee why the Government had decided not to proceed with the White Paper proposals for this new lay body. I also explained, however, the steps we were planning to take to improve the existing adjudication arrangements, principally by accepting in large part the Prior Committee's recommendations for a new code of discipline and various procedural changes and by providing hoards with the assistance of court clerks or solicitors. I recognise that these plans do not go as far as some people would wish, but I believe that they hear a close scrutiny as serious and worthwhile improvements to the present adjudication arrangements—improvements which, I may say, will involve a lot of hard work to put into effect.

As anyone who studied our White Paper of October 1986 will know, we gave careful consideration to the Prior Committee's proposals for a new disciplinary body. At this stage I should like to emphasise to the noble Lord, Lord Mishcon, that we did give serious consideration to the proposals. I am sure that he would be the first to agree with me that it is for the Government in some cases to institute these committees but it is for Parliament to decide at the end of the day which of the proposals it would like to see implemented and not necessarily to accept the committee's proposals carte blanche.

We also looked, as we were bound to do, at other possible options, in particular the use of magistrates and their clerks, and the option which the White Paper actually favoured, that of separate lay panels, assisted by qualified clerks. As the White Paper made clear, we recognise the arguments in favour of a tribunal of the kind suggested by the Prior Committee, but in the end we were persuaded, and remain persuaded, against such a tribunal because it had, in our view, serious disadvantages.

First, we consider that a tribunal system with a circuit judge as president and legally qualified chairmen (barristers or solicitors of not less than seven years' standing) would simply be too weighty a body for the business with which it would have to deal. It would certainly be more weighty than the magistrates' courts but it would be dealing with behaviour which, even if it corresponded with a criminal offence, would not in fact be serious enough to merit referral to the magistrates' courts.

Secondly, although the new clause to implement the Prior tribunal talks disarmingly of no fewer than four legally qualified chairmen, let us be quite clear that, as the Prior Committee itself recognises, bearing in mind the number of cases (about 3,500 a year) and the geographical spread of our 120 or so establishments, we should need in the region of 80 part-time appointments. The pool from which these appointments would have to be made would be the same one from which circuit judges, and other judicial officers, principally recorders and assistant recorders, are appointed. The depletion of that pool by the number of appointments in question would be singularly unwelcome to my noble and learned friend the Lord Chancellor, particularly at a time of growing pressure on the Crown Court.

Thirdly, an essential ingredient of an effective prison disciplinary system is the ability to arrange adjudications speedily, ideally not more than three to four weeks after the alleged offence. We have very serious doubts about our ability to convene panels chaired in the way the Prior Committee envisaged as quickly as would be desirable, and this was a factor which we thought it right to take into account.

Finally, I refer to a point on which the new clauses are silent. The Prior Committee suggested that its proposed tribunal would need its own administrative backup, regionally based. Our estimate was that this would require some 25 additional staff, plus accommodation and support services. Moreover, this estimate was based on the assumption—as the White Paper pointed out, a questionable assumption—that there would be no need for these staff to act as clerks at adjudications.

As I have indicated, we looked at two other options. We concluded that, taking all factors into account, the Prior tribunal was not the right way forward, and that the option for separate lay panels, assisted by clerks, was.

However, this solution gathered very little support. The proponents of the Prior tribunal saw it as inadequate, while the opponents at best were unenthusiastic. We listened to, and took note of, these views. We wanted to proceed by agreement, but that agreement was not forthcoming. We decided therefore, that if progress was to be made on the non-structural aspects of Prior we should have to forgo the idea of separating the adjudicatory and watchdog functions. I acknowledge candidly that this was a pragmatic response. I have to say also that as I became more familiar with the work of the prison department and indeed the work of boards of visitors, the more I became convinced that boards could cope and were coping very well with their adjudicatory functions. Far from being undermined by judicial review, the existing adjudicatory arrangements have both stood up well to the test of judicial review and have benefited from the guidance which has emerged from judicial review. I have also become convinced that the benefits to be obtained from the separation of the watchdog and adjudicatory functions are largely theoretical, and that they would have a serious practical cost in terms of the upheaval they would cause. In this connection, I have to say that we could well face serious difficulty in securing the services of sufficient numbers of suitable lay people to meet the requirements of both a new adjudicatory system and the important existing watchdog role which boards of visitors discharge.

While I have the highest regard for the legal profession—my regard is even greater having taken the Bill through its stages to date— and, indeed, for the noble and learned Lord, Lord Simon of Glaisdale, as a Minister in the department reponsible for the magistrates' courts I cannot accept that the importation of legally qualified chairmen is essential to achieve fairness. We have a proud tradition of summary justice administered by laymen and women, assisted, of course, by professional clerks. This is the model that we consider to be appropriate for the prison visiting system. I would go further and say to the noble and learned Lord that there are a number of magistrates on boards of visitors. Of the 1,529 members of boards of visitors, 628 are serving justices of the peace. My maths, fairly elementary as it is, calculates that to be some 41 per cent. of boards of visitors. I repeat to the noble and learned Lord, Lord Simon of Glaisdale, that we shall be giving the boards legal advice from now on. That is one of the recommendations of Prior that we have accepted.

There is another point which was not raised at Committee— I should have raised it and I apologise to the House. We await, and are about to receive, the thematic review of the outgoing Chief Inspector of Prisons on grievance procedures. This will provide an opportunity to look comprehensively at the way in which prisoners' grievances are handled. This in its turn has implications for the role of boards of visitors.

Since the last stage I have discussed at great length with members of boards of visitors, both for and against, and other members of the prison service what their attitudes are to our decision, given what was said by your Lordships in Committee. They have all said that we are right to be doing what we are doing. Perhaps some of them do not like it, but in the present circumstances they believe that the Government have taken the right decision.

Let me conclude by saying this. First of all, I am grateful to the noble Lord for having given us this further opportunity to discuss the prison disciplinary system. Secondly, while the Government are grateful to the Prior Committee for the valuable work it did and for the many recommendations we are pursuing, we do not think that it got it right with its proposed tribunal. Thirdly, we accept that our proposed lay panels do not command sufficient support. I see no prospect of finding acceptable new structures in the foreseeable future.

I did not differ from the noble Lord, Lord Donaldson of Kingsbridge, when he said that the boards of visitors must be effective. I believe that they are effective and will continue to be effective with the proposals which we have in mind and which we have discussed tonight. I hope that the noble Lord will accept that, while we differ on whether or not the new machinery is necessary, he and I share the objective of improving the disciplinary system and I therefore hope too that he will be able to accept my argument this evening.

Lord Donaldson of Kingsbridge

My Lords, we concluded in Committee that I was unlikely to agree with the noble Earl and I do not think he expects me to do so today. I am disappointed because I carefully raised two amendments so that if the noble Earl found, in his rather delightful phrase, that he could make only a pragmatic response to my request to set up a tribunal—a pragmatic response meaning a reasonably stated excuse for doing nothing about it—he could take the first amendment and say, "We have already told you that we agree that these disciplinary matters should be separated from the caring or friendly duties of boards". They mentioned this in the White Paper and he has twice half said and half withdrawn it (I believe this seriously). The noble Earl could have given us some encouragement to pass the first amendment and then told us what the Government could do in the form of a makeshift system. He could have said, "We will see that there are at least three magistrates on every board"—if there are 41 per cent. that means that there are jolly nearly two already—and could have said, they shall sit separately and have a separate function to deal with such cases." That would have gone some way in the right direction, although not as far as I had hoped for. To give one absolutely nothing at all, except that there is to be a disciplinary code to be administered by the same people—people whose administration of it we object to anyway—is a poor response.

The noble Lord spoke of the Prior suggestion as being too weighty. Conditions in prison are not the same as conditions outside. Ordinary magistrates' courts can deal with a three-month prison sentence, which is what we are talking about under the new code. It is a very big sentence for the man already serving it, who is expecting to get out on a certain date. It needs a weighty tribunal to satisfy him and his colleagues.

Lastly, if it is true that the Prison Governors' Association and the prison officers staff have told the noble Earl that what has been decided is absolutely splendid, in spite of it not being what they want, that is not the kind of response I have received.

For the reasons I gave in my opening remarks we shall not win this because the people who will be voting have not listened to the argument, do not know anything about it and are treating it as a party matter. I shall display that by putting the matter to the vote.

On Question, Whether the said amendment (No. 45) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 65.

DIVISION NO. 2
CONTENTS
Airedale, L. Hutchinson of Lullington, L.
Ardwick, L. Jay, L,
Avebury, L. John-Mackie, L.
Blease, L. Kilbracken, L.
Buckmaster, V. Lloyd of Kilgerran, L.
Carmichael of Kelvingrove, L. Longford, E.
Carter, L. Mackie of Benshie, L.
Dean of Beswick, L. Mishcon, L.
Donaldson of Kingsbridge, L. [Teller.] Morton of Shuna, L.
Ponsonby of Shulbrede, L. [Teller.]
Ennals, L.
Graham of Edmonton, L. Silkin of Dulwich, L.
Harris of Greenwich, L. Simon of Glaisdale, L.
Henderson of Brompton, L. Stoddart of Swindon, L.
Hooson, L. Ullswater, V.
Houghton of Sowerby, L. Underhill, L.
Hunt, L.
NOT-CONTENTS
Abinger, L. Caldecote, V.
Allenby of Megiddo, V. Cameron of Lochbroom, L.
Arran, E. Campbell of Croy, L.
Atholl, D. Carnegy of Lour, B.
Balfour, E. Carnock, L.
Beaverbrook, L. Coleraine, L.
Belstead, L. Colwyn, L.
Brabazon of Tara, L. Cottesloe, L.
Brougham and Vaux, L. Davidson, V. [Teller.]
Caithness, E. Denham, L. [Teller.]
Dormer, L. Mersey, V.
Dundee, E. Monk Bretton, L.
Elliot of Harwood, B. Mountevans, L.
Elliott of Morpeth, L. Murton of Lindisfarne, L.
Elton, L. Nelson, E.
Glenarthur, L. Orkney, E.
Goold, L. Romney, E.
Grantchester, L. Saltoun of Abernethy, Ly.
Hesketh, L. Skelmersdale, L.
Hives, L. Somers, L.
Hooper, B. Stanley of Alderley, L.
Hylton-Foster, B. Strange, B.
Joseph, L. Strathclyde, L.
Kitchener, E. Thomas of Gwydir, L.
Lane-Fox, B. Thomas of Swynnerton, L
Lawrence, L. Trumpington, B.
Long, V. Vaux of Harrowden, L.
Lucas of Chilworth, L. Ward of Witley, V.
Lyell, L. Whitelaw, V.
Macleod of Borve, B. Windlesham, L.
Malmesbury, E. Wise, L.
Marley, L. Wyatt of Weeford, L.
Merrivale, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 46 not moved]

The Earl of Arran

My Lords, this may be the appropriate time to adjourn the Report stage. I suggest that we do not resume before 8.35 p.m. I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and. on Question Motion agreed to.