HL Deb 02 June 1992 vol 537 cc824-40

3.9 p.m.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Release of short-term, long-term and life prisoners]:

Lord Macaulay of Bragar moved Amendment No. 1: Page 1, line 19, after ("General") insert ("or the Lord Justice Clerk").

The noble Lord said: It might be for the convenience of the Committee if I refer also to Amendment No. 16, because the same principle applies to both clauses. Amendment No. 1 relates to Clause 1(4) and the release of prisoners on licence. At present the clause provides: If recommended to do so by the Parole Board under this section, the Secretary of State may, after consultation with the Lord Justice General and, if available, the trial judge, release on licence a life prisoner who is not a discretionary life prisoner".

The amendment was suggested by the Law Society of Scotland. As far as I am aware—the time element may have something to do with it—neither the Lord Justice General nor the Lord Justice Clerk has been consulted. The purpose of the amendment is to ensure that in the absence of the Lord Justice General, who is the supreme judge in Scotland, there should be a provision to allow a substitute for consultation in these important matters.

As it stands, Clause 1(4) provides that, the Secretary of State may, after consultation with the Lord Justice General … release on licence a life prisoner",

which suggests that before the Secretary of State makes his decision he will have consulted the Lord Justice General.

Amendments Nos. 1 and 16 are proposed to ensure that if the Lord Justice General is unavailable for any reason—for example, if he happens to be out of the country or is unavailable because of illness or death (although we would not wish that upon any incumbent of the office)—someone of equal status should be available to be consulted before a life prisoner is released. That is the sole purpose of the amendments.

I appreciate that the number of occasions upon which recourse to the Lord Justice Clerk would be required will probably be few and far between, but it is important in a Bill of this nature to have a fall back, for administrative efficiency and in the interests of the prisoner who is waiting to be released from his life sentence. There may from time to time be an emergency. The only other person consulted under the terms of the subsection is the trial judge. Begging the presence of the noble and learned Lord, Lord Morton of Shuna, the likelihood of the trial judge being alive by the time the person is being considered for release is minimal because people have been serving long sentences in prison recently.

If the trial judge is not available because of illness or death, and if the Lord Justice General is not available for one reason or another, as the subsection stands (and the subsection to which Amendment No. 16 relates) there will be no one to consult. It is in the interests of justice, the individual and the community, that there should be a substitute with whom consultations can be held. I beg to move.

3.15 p.m.

Lord Morton of Shuna

I am grateful to the noble Lord, Lord Macaulay of Bragar, for expressing his anxiety about my health. I do not see much difficulty about the trial judge being available, because they are frequently available. I believe that the length of time people serve in respect of life sentences for murder is about 10 years at present, although I may not be accurate about that. That seems to give a judge a reasonable amount of time to live—I hope so, speaking personally.

There has been no suggestion that the provision has caused any difficulty. The difficulty and the delays upon which the Parole Board for Scotland has frequently commented relate to the Civil Service Department in St. Andrew's House not producing the paperwork quickly enough, and that is a matter upon which the Kincraig Report comments. There has been no suggestion that the Lord Justice General, whoever he happens to be, has caused any problem nor is there any suggestion that there is a problem.

The Lord Justice General does the same job as the Lord Chief Justice in England. The Lord Chief Justice in England has to do something like 10 times the number of cases that the Lord Justice General has to do. There is no reason to alter the practice. The advantage, as I understand it, is that the Lord Justice General and the Lord Chief Justice, on the whole, do not try murder cases, but sit in the chair in the appeal court. The Lord Justice Clerk occasionally does murder trials, and it is of advantage that there should he a two-pronged approach—the trial judge and, in effect, the head of the appeal court. Without feeling strongly about it, on the whole I oppose the amendment.

Lord Fraser of Carmyllie

The requirement of Clause 1(4) is that the Secretary of State should consult the Lord Justice General and, if available, the trial judge, before he releases a life prisoner who is not a discretionary life prisoner. That requirement has stood in relation to all life prisoners since 1967, without, to my knowledge, ever having caused any undue delay or difficulty, as the noble and learned Lord, Lord Morton of Shuna, said.

However, I acknowledge that the absence of any delay or difficulty in the past does not necessarily mean that in the future there will never be any problem. The amendments proposed would ensure that if consultations with the Lord Justice General were, for some reason, to be impracticable for the time being, the Secretary of State would be able to consult instead the Lord Justice Clerk.

Having said that, I do not recommend that the amendments be accepted as they stand; first, because, inadvertently, they would give the Secretary of State the difficult task of choosing to consult one or other of the senior judges—an invidious responsibility perhaps—and, secondly, because there is a third provision in paragraph 6(1) of Schedule 5 which requires consultation with the Lord Justice General, and where, therefore, a similar amendment would fall to be considered. Notwithstanding the limited opposition of the noble and learned Lord, Lord Morton, if the noble Lord, Lord Macaulay, is prepared to withdraw the amendments, I shall, at a later stage, bring forward amendments to all three of the relevant provisions to make it clear that if the Secretary of State is unable to consult the Lord Justice General he should consult the Lord Justice Clerk.

Lord Macaulay of Bragar

I am grateful to the Minister for his reply. In the circumstances, I am obviously prepared to withdraw the amendment. No doubt when the amendment returns on Report it will be phrased differently. It might be that "after consultation with the Lord Justice General or, if he is not available, the Lord Justice Clerk" will meet the situation. With reference to what the noble and learned Lord, Lord Morton of Shuna, said, I doubt whether the average length of a life sentence in Scotland is 10 years; I suspect that it is considerably longer than that. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 2: Page 1, line 23, leave out ("or the class of case to which that case belongs").

The noble and learned Lord said: Unfortunately the noble and learned Lord, Lord Cameron of Lochbroom, is unable to be here, so from henceforth, I shall speak to the amendments in both our names. I apologise to the Committee for not having been present in the House on Second Reading. It was a personal disappointment to me that I was unable to be there to hear the noble and learned Lord the Lord Advocate make his maiden speech. It is unusual for a Member of the House to congratulate a previous devil on his appointment as Lord Advocate; "devil" being the Scottish equivalent of "pupil". It is a great pleasure to see an erstwhile pupil or devil of mine in that position. We hope that he will fill it with the distinction of which I know he is capable.

Amendment No. 2 is purely probing. I do not understand the purpose of the reference to, the class of case to which that case belongs". It seems to me that history shows that one cannot classify murder convictions and anyway one cannot classify discretionary life sentences in non-murder cases. From 1950 onwards we tried to have various classifications of murder. In this country we have always turned our face away from them. The whole attitude of the parole system, as I understand it, is that one considers each case on its merits. Therefore I do not understand what is meant by the Secretary of State referring a class of life prisoners to the Parole Board. It seems to be proper to put down an amendment leaving the provision that each case is referred to the board individually. I beg to move.

Lord Campbell of Alloway

I put my name to the amendment because I understood that it was the proper practice that each case should be considered on its merits. Of course, the Parole Board could refer a whole series of cases, but it is not understood what is behind the words: or the class of case to which that case belongs", or why they should serve any constructive purpose.

Because I share this lack of understanding which the noble and learned Lord, Lord Morton of Shuna, has expressed, I put my name to this amendment. I hope that my noble and learned friend will be able to give us a reply.

Lord Fraser of Carmyllie

Having started by accepting the first amendment in principle, I shall go further with this one and accept it as it stands. In doing so, I am going for something of a record! The provision is modelled on Section 35(3) of the Criminal Justice Act 1991, which I understand reflects the arrangements in England and Wales whereby dossiers are passed to the Parole Board immediately after consideration by the local review committee.

However, the words which the noble and learned Lord, Lord Morton of Shuna, my noble friend Lord Campbell of Alloway and my noble and learned friend Lord Cameron of Lochbroom seek to delete have, at present. no practical effect in Scotland. Under our arrangements, as is correctly anticipated, each life prisoner's case is individually referred to the board for its recommendation as to release. I do not expect circumstances to arise in the foreseeable future when it would be desirable to reserve the power for the Secretary of State for Scotland to make class references to the Parole Board. I therefore recommend that the Committee should agree to the amendment.

Lord Morton of Shuna

All I can say is that I am very grateful.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Schedule 1 agreed to.

Clause 2 [Duty to release discretionary life prisoners]:

3.30 p.m.

Lord Morton of Shuna moved Amendment No. 3: Page 2, leave out lines 18 and 19.

The noble and learned Lord said: I have indicated—and I hope that the message got through to the Government—that I wish to deal with Amendments Nos. 39, 45, 46 and 47 at the same time as Amendment No. 3.

Amendments Nos. 39, 45, 46 and 47 concern subsidiary matters. Here we are dealing with the mandatory life sentence and Amendment No. 39 is an amendment to Clause 38. I have great difficulty in understanding what, if any, meaning is to be given to the provision. I seek to take out the words in brackets. On page 25, Clause 38(1) states: Each of sections 218 and 431…shall be amended as follows". It then goes on to state that unless one has reasons to the contrary, one should backdate the sentence to the time when the person was taken into custody. I have no difficulty with that at all.

However, subsection (2) states: For the word 'shall' there shall be substituted the words —'(other than an offence in respect of which imprisonment for life is mandatory)'". For the life of me, I cannot see what relevance Section 431 of the Criminal Procedure (Scotland) Act 1975 has (which is the summary court provision and where there is a power of imprisonment for six months) in referring to imprisonment for life being mandatory. That seems to be ridiculous.

In Section 218, it does not seem to make much sense to state that if one is making a discretionary life sentence, one has to backdate it, but if it is a sentence for murder, one does not need to do so. It seems to be an academic issue and therefore the words in brackets seem to me to be a non-use and can be omitted.

Amendments Nos. 45 to 47 are amendments to Schedule 5 paragraph 6 on page 39 concerning the transitional provisions. Here I am concerned with a matter of form. Paragraph 6(1) reads: This paragraph applies where, in the case of an existing life prisoner, the Secretary of State, after consultation with the Lord Justice General and, if available, the trial judge, certifies his opinion that, if section 2 of this Act had been in force…the court by which he was sentenced would have ordered". That seems to me to suggest that the Secretary of State is to certify the sentence that the court would have imposed. The effect of the amendments which I have put forward is that it is the Lord Justice General who should certify what the court would have done.

It seems to me offensive in principle that the Secretary of State should even be seen to be certifying a sentence that a court should give. It is a matter of the separation of powers. I am sure that the noble Lord, Lord Campbell of Croy, who has held the high office of Secretary of State, will agree with me when I say that I hope that the Secretary of State does not wish to be in a position of setting the periods of sentences. That is a matter for the judiciary. That is the point of those two amendments.

The purpose of Amendment No. 3 is to give the court the same power in the mandatory life sentence, the murder sentence, as is given in the non-mandatory sentence. It is not intended in this amendment to abolish the mandatory sentence, which is given for murder. At the moment, the court cannot consider the appropriate sentence. All we are told to do is to say that the person must be sentenced to imprisonment for life. We can make a minimum recommendation, but that is all.

As has been said much more eloquently over the years by various noble and learned Lords than by me—certainly by the noble and learned Lord, Lord Hailsham, who is looking at me with great vigour—murder is not a one-off type of crime. It is a whole category of crimes of varying degrees of awfulness. It ranges from the mercy killing to the Lockerbie type of terrorism. The discretionary life sentence is often applied—"often" is the wrong word as I believe there are only about 10 or 12 people serving such discretionary life sentences in Scotland—in the case of diminished responsibility in culpable homicide. It is applied in the case of multiple rape and it is applied when the court considers seriously on the basis of evidence that the person concerned is so dangerous that it is impossible to give a determinate sentence because the danger to the public is likely still to exist thereafter. In other words the discretionary life sentence is liable to be given in respect of a person who is far more dangerous than many of the people who are given a mandatory life sentence.

The majority of people who have received a mandatory life sentence have never offended before and often—as far as can be told—they do not offend again. Therefore it seems right to me at any rate, and has seemed right to the majority of Members of this Chamber in various debates that took place last year and since the Criminal Justice Bill of 1987, that one should give a power to the court to give some indication of what is the appropriate period that someone sentenced for murder should serve. That is all that the amendment seeks to do.

There are other reasons for seeking this power. I suggest that Scotland must have broadly the same method of dealing with people sentenced for murder in Scotland as applies in the case of people sentenced for murder in England. There is a practical reason for that because sometimes people come to Scotland from England to commit murder and upon conviction are sent back to prisons in England to serve their sentences, and vice versa. The sentences are served according to the law of the place where those people serve their sentences under the terms of the Criminal Justice Act of last year and of this Bill. Therefore the same approach should be adopted in both countries.

The English procedure is for the trial judge and the Lord Chief Justice to make a recommendation which is called the tariff. That tariff is passed to and possibly altered by the Home Secretary. The tariff period becomes the basis for the parole decision. It is in effect what this clause of the Bill refers to as "the relevant part". At the moment, according to the law, this is secret, but the Court of Appeal has recently held that in England the right to see the recommendations made by the trial judge and the Lord Chief Justice is to be granted to prisoners serving life sentences for murder. Leave to appeal to the Judicial Committee of this Chamber has been granted, but I do not know whether that measure will be proceeded with or what the result of it will be. If that decision stands, it meets almost in full the measure that is sought in this amendment.

It is nonsense to suggest that there is a major difference between murder and the discretionary life sentence. I would suggest the only difference is that in the discretionary life sentence the trial judge imposing the sentence meant to impose that sentence. In the case of the mandatory life sentence one can be pretty sure that the judge did not mean to impose that sentence but was obliged to do so.

On 3rd July last year in this Chamber the noble and learned Lord, Lord Roskill, and the noble Lords, Lord Hunt and Lord Harris of Greenwich, all pointed out that the Parole Board in considering life sentences and in considering parole never considers whether a particular sentence is a mandatory or a discretionary sentence. It considers the individual case.

In January 1992 in the case R v. Parole Board exparte Wilson the counsel for the Home Secretary, who presumably took into account issues of principle as anyone appearing as counsel for the Home Secretary or the Secretary of State is obliged to do, submitted that any distinction sought to be made in the Parole Board's task in considering discretionary and mandatory life sentences was illusory. I totally agree with that but presumably the counsel did not say that out of the top of his hat. He expressed that view because it was the view of the Home Secretary. Perhaps that view had changed since the consideration in another place of the Criminal Justice Bill as it then was. I agree that the distinction I have just referred to is illusory.

I also agree with what Lord Justice Stuart-Smith said when giving the Appeal Court judgment in the case of Bradley in 1991. He said when dealing with another case: The only difference between that case and this is that Payne was serving a mandatory life sentence for murder. That, submits Mr. Fitzgerald"— the counsel for the appellant— makes all the difference because such a man is not entitled to release after serving the tariff sentence, provided he is no longer dangerous, whereas a discretionary lifer is. In our judgment"— that is, the judgment of the Court of Appeal— this is not a valid or logical distinction because it is quite clear that the board and the Home Secretary apply the same approach both to the mandatory and discretionary life prisoners, namely, that, after they have served the tariff period, as decided by the Home Secretary after consultation and advice from the judiciary, the sole question that justifies detention in either case is risk to the public".

I am sure that that approach would commend itself to this Chamber, but it is not the approach taken in the Bill. According to the Bill it is only in the case of the discretionary life sentence where a court is to be given a power to make "the relevant part". It would be wholly retrograde and dangerous if we were to adopt for Scotland this approach which is totally different from the approach adopted in England. Considerable problems would be caused in Scotland if life prisoners thought that they were in a worse position in Scotland than they would have been in England.

I submit it is ridiculous that the more dangerous prisoner, that is the discretionary life prisoner, has a right to release whereas the less dangerous prisoner, the mandatory life prisoner, has no such right to release. All I am seeking to do in this amendment is to give the court power, if it thinks it right to do so, to include in the mandatory life sentence the period that it considers appropriate as the punishment element. If the court considers the offender to be highly dangerous—for example, the terrorists responsible for the Lockerbie disaster—it would not be prevented from imposing a mandatory sentence. At the moment as the Bill stands the same provision applies with respect to the discretionary life sentence. The cases where such a provision would apply would be, as at present, cases where the person concerned was verging on insanity.

I had the honour to serve on a Select Committee of this Chamber. After hearing from a vice-president of the Court of Human Rights we on the committee had the firm view that the Court of Human Rights would take the same view of the mandatory life sentence as it took of the discretionary life sentence. That is the purpose behind these amendments. The noble and learned Lord the Lord Advocate is giving me a look, but I assure him that that was the view we formed after having heard from that vice-president. The judgment in the case of Thynne, Wilson and Gunnell made it perfectly clear that the court was considering only that particular case and no other. For those variety of reasons I commend the amendment. I beg to move.

Lord Campbell of Alloway

As the noble and learned Lord, Lord Morton of Shuna, said in a careful speech in which the logic of the reasoning carried total conviction to some of us in the Chamber, Amendment No. 3 raises the same point as Amendment No. 39 to Clause 38. If there were a Division on Amendment No. 3 that would be determinative of Amendment No. 39 in order to avoid inconsistency in the drafting of the Bill.

Leaving aside for the sake of time matters of form on the brace of subsequent amendments, the point of principle at stake is this. This Chamber has already implemented the recommendation of the Select Committee on Murder and Life Imprisonment by deciding on a Division that the mandatory life sentence for murder should be abolished. That was not accepted by another place. One of the reasons in support of that recommendation and of the decision of your Lordships' House was that there should be no disparity of treatment as regards the release of prisoners serving a life sentence, be it mandatory or discretionary. The Court of Appeal decision handed down since our debate makes a nonsense of disparity. The practice of the Parole Board operates no disparity and makes a nonsense of disparity.

The Court of Human Rights' decision is open to equivocal interpretations, as all decisions of that eminent court are. However, I take the view, as an ordinary lawyer, that what the noble and learned Lord, Lord Morton of Shuna, said, is right. Fortunately, there are three members of the Select Committee here today—the noble Lord, Lord Harris of Greenwich, the noble and learned Lord, Lord Morton of Shuna, and myself. We heard evidence from officials of the court and went into the matter with great care. We took the view—which is not shared by government, but government is not always right—that the Court of Human Rights, as a matter of inexorable logic, would arrive at the same decision in either case.

Against that background let us consider Clauses 2 and 38 of the Bill, which insist upon maintaining that wholly illusory distinction. As the noble and learned Lord, Lord Morton of Shuna, said—and all of us in the profession, on either side of the Border, know it to be true—the discretionary life prisoner is often far more dangerous than the mandatory life sentence prisoner.

Accepting, as we must for the purpose of this debate, that as the law stands, for murder a sentence of life is fixed by law and that other life sentences imposed by the court for other offences are discretionary, nonetheless there is no intellectual distinction or justification for establishing a disparate regime for release. That is what we are concerned with. Is that not better for the administration of justice in Scotland, with which we are concerned and which, under Article 19 of the Act of Union, has its own indigenous criminal law procedure and system? The only ground upon which that can be altered by statute is the ground that statutory regulation may be imposed for the better administration of justice. Members of the Committee may ask themselves how on earth the maintenance of that distinction could be conducive to the better administration of justice in Scotland.

As a member of your Lordships' Select Committee, and having supported the decision already made by your Lordships' House, I am bound, as a matter of consistency, belief and honour, to support the amendment. It is not understood what reason could be advanced—and I shall listen with considerable care—to induce any Member of the Committee who took one view on the earlier Division in your Lordships' House to take another view today on the machinery for the release of life prisoners. I have the privilege to support my noble and learned friend on his amendment.

3.45 p.m.

Lord Macaulay of Bragar

We have heard two very distinguished speeches in support of the amendment. The practice in the courts has demonstrated the points which have been underlined. The single killer, in the domestic situation or the traditional pub fight which leads to the death of another individual, seldom represents a menace to the community and seldom reoffends. I do not know what the figures are but no doubt the Government will have them. On the other hand, those of us who have been in practice may have dealt with the case of a double rapist, for example, who receives life imprisonment and will be a menace for all time. The object of Amendment No. 3 is to put all life prisoners in one category with regard to release and to give those responsible for releasing life prisoners discretion in each case on the same basis.

From the point of view of the prisons it is a nonsense to have the double qualification of being a discretionary life prisoner or a mandatory life prisoner. I am pretty certain that in the prisons of Scotland—in Perth, Peterhead, Saughton, or wherever life prisoners are held—people do not go about saying to each other, "By the way, Jimmy, are you a discretionary life prisoner or are you a mandatory life prisoner?" From the point of view of the prisoners and from the point of view of the prison officers who receive them at the prison the simple question is, "Is he a lifer?" The prison officers do not make any distinction between a mandatory and a discretionary life sentence, so far as I am aware.

I should like to hear what the Minister has to say as to whether the prison service distinguishes between the two. If so, can the Government tell us where the discretionary life prisoners are kept and where the mandatory life prisoners are kept? If they are kept separately, can the Government advise how many discretionary life prisoners there are at present who are distinguished from mandatory life prisoners and where each group of prisoners is kept? I suspect that the answer will be that all life prisoners are kept in the same prison and are dealt with as life prisoners.

As the noble Lord, Lord Campbell of Alloway, said, in the earlier debate your Lordships' House voted in a certain way but that vote was rejected in another place. As I recall, the response of certain tabloid newspapers was that this Chamber had gone soft on life sentences. What we are seeking is a system of justice and fairness for people who are serving life sentences, whatever the public perception of them might be; and we seek a uniform approach to the question of release.

Perhaps even more important for the prison service is to have a system that does not give rise to jealousy between people within the prison service. If there is a discretionary life prisoner who has a window of hope and a mandatory life prisoner who has no window at all, jealousy arises; and on occasions at least it leads to trouble within the prison service.

So far as I am concerned—I emphasise that this is a matter of a free approach by all Members of the Committee—Amendment No. 3, tabled by the noble and learned Lord, Lord Morton, will have my support. I have considerable reservations on Amendments Nos. 45, 46 and 47 as to why the Secretary of State should be eliminated from the process. It may be that if the Secretary of State is eliminated from the process, it becomes what might look like a judicial carve up—if I may use the phrase—begging his presence. It seems to me that the Secretary of State's input is an input on behalf of the general public to balance the judicial view of whether to release or not release a person. If the noble and learned Lord divides the Committee, I shall not support him on Amendments Nos. 45, 46 and 47; but, as I said, he has my support for Amendment No. 3.

Lord Fraser of Carmyllie

I received a message from the noble Lord, Lord Morton of Shuna, to say that in speaking to Amendment No. 3, he intended to speak also to Amendments Nos. 39, 45, 46 and 47, reaching a hat trick with regard to Amendment No. 39. I accept that the amendment is designed to guard against the possibility of a mandatory life prisoner who had spent a considerable period on remand being disadvantaged when the time came to consider his release. There is logic in applying the concept of backdating to the mandatory life sentence so that the court can ensure that any remand period is taken into account at the stage of consideration for release. Therefore I shall accept that amendment when we reach it in due course.

I turn to Amendments Nos. 45 and 46 which the noble and learned Lord explained fully. They deal with the transitional arrangements. I have some sympathy with the amendments. However, we have not consulted the Lord Justice General in Scotland about whether he would be prepared to undertake the additional responsibility of determining the relevant parts of sentences of all existing discretionary life prisoners. It is my view that we should be guided by his views. Accordingly, at the appropriate time I shall invite the noble and learned Lord to withdraw his amendments on the undertaking that the Government will seek the Lord Justice General's views on that particular matter without delay.

With regard to Amendment No. 47, there are fewer than 30 discretionary life prisoners in Scotland at the moment. Our intention would be to refer those cases to the Lord Justice General within weeks rather than months of the commencement of Clause 2. Whether or not a timescale is set out in statute, the aggrieved life prisoners will have a remedy at civil law against undue delay. But I see no reason to bind the Secretary of State to an express timescale in the statute. In view of the indication that I have given to the noble and learned Lord, I hope that when the time comes he will not press the Committee on that amendment.

The substantial amendment in this informal grouping is Amendment No. 3. It raises the same issues which were comprehensively debated in this Chamber as recently as the middle of last year, as the noble Lord accurately recalled. During the passage of the then Criminal Justice Bill, noble Lords made clear their desire to abolish the mandatory life sentence; and, failing that, to extend the new procedures for release of discretionary life prisoners to those receiving the mandatory life sentence for murder.

The Government's firm view at that time was that the mandatory life sentence should remain to mark the peculiar heinousness of murder, and that the relevant Minister should retain responsibility for the release of murderers, as part of the Government's wider responsibility to protect the public. That view was accepted in the other place, and ultimately conceded by this Chamber.

It is the Government's view that it is too early in the life of a new administration to go back on that conclusion, which was carefully considered and extensively debated. The arguments on each side have not changed. They are the same for Scotland as for England and Wales. The Committee would not expect me to reach a hasty decision on this amendment, which would contradict the clear policy stated less than a year ago.

Having said that, I understand that the Home Secretary has agreed to meet the noble Lord, Lord Nathan, and a delegation including other members of the Select Committee on Murder and Life Imprisonment, to discuss the procedure for review and release of discretionary and mandatory life prisoners. He has indicated that this is not a subject on which he intends to reach a hasty conclusion.

The provisions of Clause 2 comply with our obligations under the European Convention on Human Rights. The relevant ECHR judgment did not impinge on mandatory life prisoners, although I accept that there is a view taken—it was a view expressed by the noble Lord, Lord Campbell of Alloway—that the decision on discretionary life sentences will inexorably or inevitably move on to mandatory life sentences. But the fact is that the particular decision of that court does not as yet cover that matter.

Lord Campbell of Alloway

Perhaps I may interrupt my noble and learned friend for a point of clarification. As I understand it, the discussions between the noble Lord, Lord Nathan, and the Home Secretary are limited to the question of the abolition of the mandatory life sentence for murder and are not concerned with what we are discussing today; namely, the disparity of treatment for release. Am I right in that understanding?

Lord Fraser of Carmyllie

I do not know whether the noble Lord has seen the letter that the Home Secretary sent to the noble Lord, Lord Nathan. I understand that the proposal is that he should meet those interested to discuss the procedure for review and release of discretionary and mandatory life prisoners.

Under this clause, mirroring what is already in place in England, there will be provision made for determining what should be the relevant part of a discretionary life sentence. That is already in place in England and, with the passage of this Bill, will come into place in Scotland. I urge on the Committee that experience in practice of how the courts and parole boards respond to their new responsibilities in relation to those discretionary life sentences will help to inform the debate about the possible future extension of the arrangements.

It is a radical step in our jurisdiction, expressly giving power to the courts to differentiate in seriousness between the various offences for which they exercise their discretion to impose a life sentence. However, as I indicated, the crime of murder is seen as uniquely serious. There were anxious and vexed debates about the matter in another place. However, in the past we have not acknowledged that for murder there may be differing degrees of seriousness. At the moment there exists a power for the trial judge to make a minimum recommendation in open court. That is rarely used. Moreover, it is not expressly linked to the seriousness of the offence as such.

The amendment proposed by the noble and learned Lord, Lord Morton, for the first time would introduce the concept of degrees of seriousness. It would come to be expected that judges in Scotland—in due course we would expect a similar provision to be introduced in Scotland, because it would have to follow logically that a comparable arrangement would be introduced in Scotland—

4 p.m.

Baroness Phillips

Will the noble and learned Lord explain how there can be a difference in degree of seriousness with regard to murder? The victim is dead.

Lord Fraser of Carmyllie

Perhaps I may finish my sentence. I was saying that if an amendment such as the one proposed were to be accepted that would for the first time introduce the concept of degrees of seriousness of murder and judges would be expected routinely to make such distinctions. Hitherto no such distinction has been made or sought to be made with regard to the crime of murder. The noble Baroness has no doubt watched American films where murders of varying degrees are the centrepiece. We have not adopted such an approach.

When Parliament voted for, and repeatedly endorsed, the abolition of capital punishment, it did not intend to abolish the concept of a unique penalty for murder. That penalty is life imprisonment. I respectfully suggest that we are not yet ready to take a further radical step of eroding that decision. It is right to respect the views of the other place and of the public generally that murder is uniquely serious; and the Government should not give up their ultimate discretion over the release of murderers.

I hope that I have explained the position. Doubtless those who are concerned in this matter will approach the noble Lord, Lord Nathan, to discover in what way he proposes to take forward the invitation extended to him by the Home Secretary.

Lord Harris of Greenwich

I shall speak on this proposition, since, as the noble Lord, Lord Campbell of Alloway, stated, I was, with him and the noble and learned Lord, Lord Morton of Shuna, a Member of your Lordships' Select Committee on murder and life imprisonment.

That Select Committee was set up because it was recognised by the House and by Ministers that the law of murder, and the various administrative procedures relating to the release of life sentence prisoners, were a mess. We have to recognise the situation: that so far as concerns the last English Act dealing with this matter the law remains a mess. We now have a truly bizarre situation. I relate what I am saying primarily to England although it has a most direct relationship with the law of Scotland.

As the noble and learned Lord, Lord Morton, said, all those of us who have been involved from time to time in decisions on the release of life sentence prisoners have recognised one essential truth. Although many prisoners who have been convicted of murder and have been sentenced to a mandatory sentence are dangerous men and women, if one considers the totality of cases of murder and of manslaughter on the grounds of diminished responsibility—I have reviewed many hundreds of such cases—it is clear in my mind that in many instances the person convicted of manslaughter on the grounds of diminished responsibility represents a far more dangerous threat to society than does the person who has been convicted of murder. That is not only my view but the view of the noble and learned Lord, Lord Lane, when he spoke as Lord Chief Justice. It was the view of many others during the debates in this House.

When the noble and learned Lord, Lord Fraser, put forward the case today some of those well-loved phrases came tumbling from his lips, as they did from the mouth of his colleague in the Home Office. The noble and learned Lord suggested that it was necessary to maintain the distinction because of the need to protect the public. However, as I have indicated, there is absolutely no basis whatever for suggesting that the present arrangements in any way protect the public more than would be the position were these amendments to be carried.

There is nothing uniquely serious in the case of a person who has been convicted of murder rather than manslaughter on the grounds of diminished responsibility. There is a dead person. I do not believe that the general public makes the fine distinctions that have been made by the noble and learned Lord, Lord Fraser. There is no reality to that argument.

The noble Lord, Lord Campbell of Alloway, raised the issue of the forthcoming meeting between the noble Lord, Lord Nathan, the noble and learned Lord, Lord Ackner, myself and possibly others who were Members of the Select Committee. As I understand it, we shall discuss all the issues involved in our report. I very much hope that we will. I should find it surprising were Mr. Clarke to suggest anything else. Obviously I have no idea what view the new Home Secretary will take. I very much hope that he will withdraw from the position taken by his predecessor because in England we shall have this extraordinary situation from October. The case of someone who has been convicted of murder will be finally resolved by a decision by Ministers. However, a case of manslaughter on the grounds of diminished responsibility will be finally determined by the Parole Board and there will be no locus for the Home Secretary. I find it hard to believe that there will be overwhelming public support for such a truly absurd situation. I very much hope that we shall not reproduce that folly in the Bill.

Lord Morton of Shuna

I am grateful to all those who have taken part in the debate. In reply to the noble Baroness, Lady Phillips, perhaps I may say this. It is a common fallacy that death equals murder. But death as a result of a crime can vary from death through a breach of a statutory regulation—it can be very serious such as the deaths in the Channel Tunnel—or death caused by careless driving or by reckless driving. Death can be caused by drunk driving or by the crime of manslaughter. It is a fallacy to say that an offence causing death equals murder. It does not and never has.

The difficulty about the definition of murder is that it is not restricted to cases where death is caused as a result of an intention to kill. An intention to kill is not necessary for murder. But someone who does intend to kill and kills several people over time is not guilty of murder if his responsibility is diminished. He therefore does not receive the mandatory life sentence because he is too dangerous to receive it. That is the fallacy of the argument. The more dangerous person does not receive the mandatory life sentence.

I am not surprised but disappointed that the noble Lord, Lord Macaulay, did not understand the purpose of my Amendments Nos. 45 to 47. I shall not move them in order to allow for consultation. I have spoken to the Lord Justice General, who does not appear to object in any way to my amendments so long as they do not impose a timescale on him. However, the point of the amendments was to make the setting of the relevant part of the sentence—not the release—the responsibility of the judiciary. The release would still be the responsibility of everyone including the Secretary of State.

While I was disappointed with the noble Lord, Lord Macaulay of Bragar, I was astounded by the noble and learned Lord, Lord Fraser of Carmyllie. Apparently Scottish law is to be decided by the Government after the Home Secretary has consulted with various Members of your Lordships' Chamber, all of whom spend their whole professional lives in England. No Scottish Office Minister is to take part. I must be a total Cross Bencher but I ask the noble and learned Lord, Lord Fraser, whether he is serious. I understood that he had responsibility for advising the Prime Minister about devolution. Difficulties may arise if Scottish law is to be determined by the Home Secretary—it is an oddity—but that is what he appeared to say.

The real difficulty with the procedure is that the English already have it; they have the judges setting down the period, although it is set down secretly. A decision is made and unless and until the judicial committee of this House overturns the Court of Appeal that stands. The Court of Appeal has quashed the Home Secretary's tariff on four people convicted of murder and it has released the recommendations of the Lord Chief Justice in respect of those people. In tabling the amendment I want precisely that to be possible in the law of Scotland. I do not see what the difficulty is. Although I can see that Members of the Committee are waiting for other business to be dealt with, I am afraid that I must seek the opinion of the Committee.

4.11 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

* Their Lordships divided: Contents, 96; Not-Contents, 125.

Division No. 1
Addington, L. Ezra, L.
Ardwick, L. Fisher of Rednal, B.
Aylestone, L. Foot, L.
Banks, L. Gallacher, L.
Beaumont of Whitley, L. Galpern, L.
Birdwood, L. Gladwyn, L.
Blackstone, B. Graham of Edmonton, L.
Blease, L. Granville of Eye, L.
Boston of Faversham, L. Greene of Harrow Weald, L
Bottomley, L. Gregson, L.
Brookes, L. Grey, E.
Bruce of Donington, L. Halsbury, E.
Campbell of Alloway, L. Harris of Greenwich, L.
Carmichael of Kelvingrove, L. Hatch of Lusby, L.
Carter, L. [Teller.] Hayter, L.
Cledwyn of Penrhos, L. Hilton of Eggardon, B.
Clinton-Davis, L. Hirshfield, L.
Cocks of Hartcliffe, L. Houghton of Sowerby, L.
Darcy (de Knayth), B. Howie of Troon, L.
David, B. Hughes, L.
Dean of Beswick, L. Hunt, L.
Desai, L. Irvine of Lairg, L.
Donaldson of Kingsbridge, L. Jenkins of Hillhead, L.
Donoughue, L. Jenkins of Putney, L.
Dormand of Easington, L. Judd, L.
Kilbracken, L. Robson of Kiddington, B.
Kintore, E. Rochester, L.
Listowel, E. Russell of Liverpool, L.
Llewelyn-Davies of Hastoe, B. Sainsbury, L.
Lockwood, B. Saltoun of Abernethy, Ly.
Longford, E. Sefton of Garston, L.
Macaulay of Bragar, L. Serota, B.
Mais, L. Shackleton, L.
Marsh, L. Shaughnessy, L.
Mayhew, L. Shrewsbury, E.
Meston, L. Stallard, L.
Molloy, L. Stoddart of Swindon, L.
Monkswell, L. Strabolgi, L.
Monteagle of Brandon, L. Taylor of Blackburn, L.
Morris of Castle Morris, L. Taylor of Gryfe, L.
Morton of Shuna, L. [Teller.] Tenby, V.
Mulley, L. Thomson of Monifieth, L.
Nicol, B. Tordoff, L.
Phillips, B. Turner of Camden, B.
Pitt of Hampstead, L. Wallace of Coslany, L.
Portland, E. White, B.
Prys-Davies, L. Williams of Elvel, L.
Rea, L. Winstanley, L.
Aberdare, L. HolmPatrick, L.
Allenby of Megiddo, V. Hood, V.
Alport, L. Howe, E.
Astor, V. Jeffreys, L.
Astor of Hever, L. Johnston of Rockport, L.
Auckland, L. Lauderdale, E.
Belhaven and Stenton, L. Leigh, L.
Bellwin, L. Liverpool, E.
Beloff, L. Lloyd of Hampstead, L.
Belstead, L. Long, V.
Bessborough, E. Lyell, L.
Blatch, B. Mackay of Ardbrecknish, L
Blyth, L. Mackay of Clashfern, L.
Bolton, L. Malmesbury, E.
Borthwick, L. Manton, L.
Boyd-Carpenter, L. Marlesford, L.
Brookeborough, V. Merrivale, L.
Brougham and Vaux, L. Mersey, V.
Cadman, L. Middleton, L.
Caldecote, V. Milverton, L.
Campbell of Croy, L. Morris, L.
Carnegy of Lour, B. Mottistone, L.
Carnock, L. Mountevans, L.
Chalker of Wallasey, B. Mountgarret, V.
Charteris of Amisfield, L. Mowbray and Stourton, L.
Cochrane of Cults, L. Moyne, L.
Coleraine, L. Munster, E.
Colnbrook, L. Murton of Lindisfarne, L.
Crathorne, L. Nelson, E.
Cullen of Ashbourne, L. Norrie, L.
Cumberlege, B. Orkney, E.
Davidson, V. Orr-Ewing, L.
Denton of Wakefield, B. Pearson of Rannoch, L.
Downshire, M. Pender, L.
Eccles of Moulton, B. Perry of Southwark, B.
Effingham, E. Platt of Writtle, B.
Elgin and Kincardine, E. Porritt, L.
Elibank, L. Prentice, L.
Elliot of Harwood, B. Pym, L.
Elliott of Morpeth, L. Quinton, L.
Faithfull, B. Rankeillour, L.
Ferrers, E. Reay, L.
Flather, B. Renfrew of Kaimsthorn, L.
Foley, L. Rennell, L.
Fraser of Carmyllie, L. Renwick, L.
Fraser of Kilmorack, L. Rochdale, V.
Gardner of Parkes, B. Rodger of Earlsferry, L.
Gibson-Watt, L. Rodney, L.
Goschen, V. Romney, E.
Gridley, L. Sanderson of Bowden, L.
Grimston of Westbury, L. Seccombe, B.
Harding of Petherton, L. Skelmersdale, L.
Hardinge of Penshurst, L. Strange, B.
Henley, L. Strathclyde, L.
Hesketh, L. [Teller.]
Strathmore and Kinghorne, E. [Teller.] Ullswater, V.
Vaux of Harrowden, L
Sudeley, L. Wade of Chorlton, L.
Suffield, L. Wakeham, L.
Teviot, L. Wedgwood, L.
Thomas of Gwydir, L. Wise, L.
Trenchard, V. Wynford, L.
Trumpington, B. Young, B.

[* The Tellers for the Not-Contents reported 125 names. The Clerks recorded 124 names.]

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Trumpington

My Lords, I beg to move that the House do now resume.

Moved accordingly, and on Question, Motion agreed to.

House resumed.