HL Deb 03 July 1991 vol 530 cc1043-50

2AH Line 46, at end insert:

("(7A) When the Board exercises its functions under this section it shall consist of —

  1. (a) a judge of the High Court, who shall be the Chairman;
  2. (b) a registered medical practitioner who is a psychiatrist; and
  3. (c) a chief probation officer
and shall act as a judicial tribunal independently of the Secretary of State.").

Lard Harris of Greenwich

My Lords, I beg to move Amendment No. 2AH. We are in a somewhat confusing situation in that the noble Lord the Leader of the House has already replied to the amendment although in fact I have not yet spoken to it. I now propose to do so.

This is a matter of considerable importance. It arises directly from a recommendation of your Lordships' Select Committee on Murder and Life Imprisonment and relates to the character of the tribunal. In my view "tribunal" is the way to describe the group of members of the Parole Board who will now have to make executive decisions in relation to whether life sentenced prisoners should be released into the community. The question therefore is who should be members of that tribunal.

The view of your Lordships' Select Committee was that there should be a high court judge, a consultant psychiatrist and a chief probation officer. I believe that that is right. Since the earliest days of the Parole Board, as my noble friend Lord Hunt pointed out and the noble and learned Lord, Lord Roskill, confirmed, High Court judges have been members of panels which advised the Home Secretary whether to release a life sentenced prisoner. In my view it would be an extraordinary situation were a High Court judge not to be chairman of the tribunal. If there is a High Court judge as a member of the committee or board, which makes an affirmative recommendation—and recommendation only—to the Home Secretary, it would be very strange indeed were we not to say that when the board has executive responsibilities it should not include on it a High Court judge.

Putting the mandatory life sentence on one side, I should like to speak for a few minutes about the discretionary life sentence case. Here one is dealing with some of the most difficult prisoners in custody. Highly sensitive and extremely difficult decisions will have to be reached and, in order to maintain public confidence in the arrangements, it is in my view essential that a High Court judge should be in the chair.

The only other issue that I want to raise with the noble Lord, Lord Waddington—I gave notice of this question to his officials—is whether the new tribunal will be overseen by the Council on Tribunals. It is a matter of considerable importance. The Council on Tribunals was established for just such a purpose and I should be reassured, as I am sure would other noble Lords, were we to be told that the Council on Tribunals is to be asked to take on the responsibility.

Moved, That Amendment No. 2AH, as an amendment to Commons Amendment No. 2A, be agreed to. —(Lord Harris of Greenwich.)

Lord Hailsham of Saint Marylebone

My Lords, I have every sympathy with this amendment but I thought I understood my noble and learned friend or perhaps my noble friend on the Front Bench at some stage to say that there were logistical difficulties about providing a High Court judge for this work. I myself would be perfectly content, in spite of the importance of the work, to have in the chair an Old Bailey judge, a retired High Court judge, a circuit judge or even one who is qualified to sit as a deputy High Court judge. I wonder whether my noble and learned friend on the Woolsack would comment on that matter before we reach a decision on the amendment.

Lord Renton

My Lords, there is a point which I wish to raise on this amendment. It relates to the words in the last line: and shall act as a judicial tribunal independently of the Secretary of State". This is a matter of the Parole Board's function. The Parole Board is appointed by the Secretary of State and, I understand, is answerable to him. I wonder why we need those words there; what would be their constitutional significance; and do we really need to include them?

Lord Morton of Shuna

My Lords, I support this amendment. Perhaps I may take up the point raised by the noble Lord, Lord Renton. The reason is that the Parole Board is not wholly independent of the Secretary of State. The independence of this tribunal has to be demonstrated. I believe that that is the reason. It is for the European court to be satisfied that the tribunal taking the decision is totally separate from the Executive. That is the reason for the word "independently".

My membership of the Select Committee is not the only reason why I support the proposition that the judicial member should be a judge of the High Court. It is a tribunal that will have to have the fullest confidence of the public. It would therefore be appropriate for the judicial member to be a High Court judge rather than a Crown Court judge, a retired judge or a deputy judge.

When I was very new to the House in 1985, I had the temerity to suggest in debate on the Law Reform (Miscellaneous Provisions) (Scotland) Bill that the Secretary of State for Scotland and the Lord Advocate might consider having temporary judges in Scotland as they had in England, whereupon the noble and learned Lord, Lord Rawlinson of Ewell, stated that we should do no such thing—we have of course done such a thing since, but that is by the way—because of great trouble caused to the Bar in England through the use of too many deputies and retired judges and too few appointments for High Court judges. If there is a shortage of High Court judges, I am sure that there is no shortage of people qualified to be High Court judges. The answer is fairly simple. It costs nothing like the annual salary of people within some major companies to appoint a High Court judge.

Lord Campbell of Alloway

My Lords, I support the amendment. I shall be brief. In answer to my noble friend Lord Renton, it is because the Secretary of State appoints the Parole Board, and because the Parole Board is answerable to the Secretary of State, that the last line of the amendment has to be inserted in order to satisfy the firm requirements of the decision of the European Court of Human Rights. With respect there can be no answer to that.

I spoke on the other matter previously. I support the argument that a judge of the High Court should be chairman. I pray in aid everything said by the noble and learned Lord, Lord Roskill, and by the noble Lord, Lord Hunt, earlier in the debate. Those were totally convincing reasons why someone with the status of a High Court judge should be appointed. I agree with the noble and learned Lord, Lord Morton. Old retired judges, recorders, or circuit judges, who are brought back, do not have the same status or quality. If they had, they would be High Court judges.

Lord Renton

My Lords, what about Law Lords?

Lord Campbell of Alloway

My Lords, my noble friend Lord Renton asks, "What about Law Lords?". It would be impertinent for me publicly to reply to that question. I have my own views, some of which are reflected in what I have said.

I am firmly in support of the recommendation of the Select Committee that the tribunal should be chaired by a judge of High Court status, no more and no less. If there are not enough High Court judges, for heaven's sake let us appoint more. I understand that there are about 200 cases in the pipeline at the moment which warrant consideration. If there are not enough judges, let us have more. There is no reason why not. We are not totally governed by the Treasury. In support of the amendment, I can say no more.

7.15 p.m.

Lord Ackner

My Lords, I support the amendment. There is a great tendency nowadays to downgrade judicial work. We have a mass of work being sent from the High Court to the county court to be dealt with by circuit judges. Of course if the present volume of work increases, as it is bound to do, the High Court judges' strength of numbers at present is quite inadequate. The strength of the High Court is quite inadequate to deal with its present workload. That has been the result of a consistent Treasury refusal to make up the required number of High Court judges. It is a scandal that at least one-third of High Court judges' work is done by deputy or circuit judges.

The size of the Bar has increased more than threefold since I was called to the Bar. The size of the High Court Bench has increased nothing like that. We, in the Appellate Committee, have the privilege of hearing a fairly extensive number of silks. There must be over 600 silks at the Bar. The only resistance to their appointment is not ability, but the fact that the Treasury will not agree.

The Lord Chancellor

My Lords, it has been suggested by my noble and learned friend that I comment on the matter. My noble friend the Leader of the House is agreeable to that.

High Court judges have a very considerable workload, and I must do my best to make use of their skill and expertise to the best possible advantage. It may well be appropriate for a judge of the High Court to be chairman of such a tribunal. I should have thought that it may also be appropriate for a particular circuit judge to be chairman. After all, particular circuit judges try cases of murder. If they are able to try cases of murder, I should have thought that it would be perfectly appropriate that they chair such a tribunal.

If your Lordships were to pass the amendment in this form, it would be impossible to use the services in this connection of a circuit judge, however highly qualified and however many murder cases he had tried. I suggest that that is an unnecessary restriction on the flexibility that is required if we are appropriately to use the resource of High Court judge talent.

The suggestion is readily made that all we need to do is to appoint a few more. However, there are difficulties. There is such a thing as competition for resources in the various matters that count in public expenditure terms. I do not believe that it would be appropriate for me to enter further into detail in what I am sure has been a considerable debate already.

I suggest to your Lordships that a circuit judge might well be qualified suitably to chair a tribunal in these circumstances and that it would therefore be unnecessary to restrict the judicial chairman in the way that the amendment proposes. I have so advised the Leader of the House in discussions.

Lord Hailsham of Saint Marylebone

My Lords, before my noble and learned friend sits down, do I infer from what he says that on behalf of the Government he gives an undertaking that the chairman should be a judge?

The Lord Chancellor

My Lords, there is no question in my mind but that the chairman should be a judge. The only question is whether the chairman should necessarily be a High Court judge or, for example, whether a circuit judge approved to try murder cases might be perfectly suitable. Perhaps I may elaborate a little. One has to remember that the nature of the work which High Court judges have to undertake these days can involve a great variety of different types of case. A circuit judge approved to try a murder case may well have as much experience of dealing with murder cases in court as some of the High Court judges.

All I suggest to your Lordships is that it would be wise to allow a reasonable flexibility in the matter in order that the status of judicial officer, as between a High Court judge and a circuit judge, should be left open.

Lord Ackner

My Lords, before my noble and learned friend sits down, will he agree that there is all the difference in the world between the function of a judge presiding in the trial of a murder case—not, usually, the most difficult of cases—where the decision is made by the jury, and that of the judge presiding over such a tribunal where he must take a leading part in making what may often be a difficult decision?

The Lord Chancellor

My Lords, I appreciate that there is a difference between a judge charging a jury in a murder case and a judge presiding over a tribunal of this kind. However, I believe that circuit judges qualified to try murder cases would be qualified to preside over such a tribunal. I agree that the situations are different but I do not so denigrate the talent of the circuit Bench as to believe that a circuit judge of that character would not be appropriate for the purpose. I am not saying that necessarily the appointment should be of such a person; merely that it would be right for your Lordships to leave the issue open as a matter of qualification. In other words, the qualification for being, the chairman should be a judge of the High Court or a circuit judge.

Lord Waddington

My Lords, Amendment No. 2AH seeks to set out on the face of the Bill the composition of the panel that will consider the case of discretionary life sentence prisoners and to declare that it will be an independent tribunal. My advice is that the final words of the amendment add nothing. The question is whether such a body so composed would be a court within the meaning of the judgment of the European Court of Human Rights. I said earlier that the tribunal would be headed by a judge; that the right of appearance would be given to the person detained; that there would be the right of representation; and that the person would have the right to apply for legal aid. Therefore, the body would be headed by a judge and would have all the hallmarks of a court. Accordingly, I see no reason whatever to believe that the scheme put forward by amendment in another place, suggested by the Government, would not meet the needs of the situation.

The matter has been dealt with to a large extent by my noble and learned friend the Lord Chancellor. It is right to say that the judge concerned can be a circuit judge who has had wide experience of trying serious cases of crime. It is certainly the case that the judge will have been a member of the Parole Board. Surely in those circumstances there is no reason why after making such decisions as a member of the Parole Board he should not be capable of carrying out this particular function. It is not for me to add to the arguments advanced by my noble and learned friend about the possible practical problems, bearing in mind the considerable burden of work that might be involved.

The panel that we propose will, in addition to the judge, include a medical member with a psychiatric qualification. The third member might well be a chief probation officer. However, it is not desirable to make an inflexible rule about that because many wise and distinguished members of the Parole Board are not chief probation officers and they may be equally suitable to undertake these duties. I should not like to rule them out.

I am satisfied that taken together the provisions set out in the Commons amendments will ensure that the European Court of Human Rights will regard the Parole Board as a court in Strasbourg terms. The European Court will not be concerned about whether provisions appear in the Bill, in the rules, or in a mixture of both; it will look at the substance of our arrangements. The Government have no doubt that it will find our arrangements adequate.

The noble Lord, Lord Harris of Greenwich, asked whether the Parole Board will be supervised by the Council on Tribunals. We have not made statutory provisions for that but we shall explore the possibility of the council providing advice on an informal basis about the procedures which the Parole Board will adopt in discretionary life sentence cases. I also give an undertaking that we shall consult the council on the draft rules to be made for that purpose under Clause 26(5). In those circumstances, I ask your Lordships to reject Amendment No. 2AH and accept that the scheme put forward by the Government meets the needs of the moment, meets the requirements of the European court and will provide a workable and proper system for carrying out these reviews.

Lord Harris of Greenwich

My Lords, I hear what the noble Lord the Leader of the House said about the Council on Tribunals. However, he will be aware that the council looks into other matters. For instance, mental health tribunals have responsibilities similar to those of the new organisation and in their annual report they criticise the substantial delays which occur in hearing cases. I remind the noble Lord that criticisms of precisely that character have been made in respect of the parole system. Therefore, it is highly desirable that the Council on Tribunals has the right to look into the matter. I should be grateful if the noble Lord would write to me because I recognise that the issue is wide of the amendment.

I do not wish to rehearse the arguments again. The fact of the matter is simple. Since the creation of the Parole Board a High Court judge has been a member of the panel in all life sentence cases. He has been that notwithstanding the fact that in that capacity he is acting as an adviser to the Secretary of State. The new tribunal will be an executive body and not an advisory body to the Secretary of State. It will have executive responsibilities. As I pointed out earlier, in addition to other cases the tribunal will be dealing with cases of manslaughter on the grounds of diminished responsibility. Such cases are some of the most difficult ever considered by the Parole Board because there is a real risk of a repetition of a serious criminal offence. In the light of that and for the need to maintain public confidence in the new procedures I believe that it is desirable to have a High Court judge in the chair. I commend the amendment to the House.

7.27 p.m.

On Question, Whether Amendment No. 2AH, as an amendment to Commons Amendment No. 2A, shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 73.

Division No. 5
Ackner, L. Lawrence, L.
Addington, L. Listowel, E.
Airedale, L. Longford, E.
Banks, L. McNair, L.
Brain, L. Mallalieu, B.
Campbell of Alloway, L. Masham of Ilton, B.
Carmichael of Kelvingrove, L. Monkswell, L.
Cocks of Hartcliffe, L. Monson, L.
Darcy (de Knayth), B. Morris, L.
Dean of Beswick, L. Morris of Castle Morris, L.
Desai, L. Morton of Shuna, L.
Dormand of Easington, L. Nathan, L.
Ewart-Biggs, B. Nicol, B.
Fisher of Rednal, B. Pitt of Hampstead, L.
Gallacher, L. Rea, L.
Galpern, L. Redesdale, L.
Graham of Edmonton, L. [Teller.] Richard, L.
Robson of Kiddington, B.
Greenway, L. Rochester, L.
Halsbury, E. Seear, B.
Hampton, L. Sefton of Garston, L.
Hamwee, B. Stedman, B.
Hanworth, V. Stoddart of Swindon, L.
Harris of Greenwich, L. [Teller.] Taylor of Blackburn, L.
Taylor of Gryfe, L.
Hilton, B. Templeman, L.
Hollis of Heigham, B. Tordoff, L.
Holme of Cheltenham, L. Turner of Camden, B.
Houghton of Sowerby, L. Underhill, L.
Hylton-Foster, B. Wharton, B.
John-Mackie, L. White, B.
Judd, L. Williams of Elvel, L.
Kilmarnock, L. Winstanley, L.
Kirkhill, L.
Arran, E. Kenilworth, L.
Astor, V. Kimball, L.
Belstead, L. Lane of Horsell, L.
Blake, L. Long, V.
Blatch, B. Mackay of Ardbrecknish, L.
Boardman, L. Mackay of Clashfern, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Brabazon of Tara, L. Mancroft, L.
Brentford, V. Marlesford, L.
Caithness, E. Mottistone, L.
Cavendish of Furness, L. Mountevans, L.
Clanwilliam, E. Mountgarret, V.
Colnbrook, L. Nelson, E.
Craigmyle, L. Newall, L.
Davidson, V. [Teller.] Norrie, L.
Denton of Wakefield, B. Orkney, E.
Dudley, E. Oxford and Asquith, E.
Elliott of Morpeth, L. Pearson of Rannoch, L.
Erroll, E. Platt of Writtle, B.
Faithfull, B. Plummer of St. Marylebone, L.
Ferrers, E. Rankeillour, L.
Flather, B. Reay, L.
Fraser of Carmyllie, L. Renton, L.
Gainsborough, E. Rodney, L.
Gisborough, L. Romney, E.
Glenarthur, L. Savile, L.
Hailsham of Saint Marylebone, L. Sharples, B.
Shrewsbury, E.
Harmar-Nicholls, L. Skelmersdale, L.
Harvington, L. Strathclyde, L.
Henley, L. Strathmore and Kinghorne, E.
Hesketh, L. [Teller.] Trefgarne, L.
Hives, L. Ullswater, V.
Hooper, B. Vaux of Harrowden, L.
Howe, E. Waddington, L.
Hylton, L. Wade of Chorlton, L.
Joseph, L. Wyatt of Weeford, L.

Resolved in the negative, and Amendment No. 2AH disagreed to accordingly.

7.35 p.m.