HL Deb 08 February 1993 vol 542 cc479-504

6.33 p.m.

Lord Ashley of Stoke

My Lords, I beg to move that this Bill be now read a second time.

It would be a foolish Member of this House who tried to improve on the speeches which have already been made on this subject over the years; and more recently in the debate in this House on an amendment to the Criminal Justice Bill so brilliantly led by the noble Lord, Lord Nathan, and the noble and learned Lord, Lord Lane. However, the Government should be left in no doubt that the case will be restated, updated and kept in the public domain because the mandatory life sentence for murder is a legal impostor that sullies our judicial system.

At the outset, I make clear that I strongly favour long sentences for cruel, savage and calculating murder. There should most certainly be life sentences for those who deserve them. I was so committed to the need for appropriate custodial sentences that on 14th February 1978 I introduced a Bill in another place to give the right of appeal against lenient sentences. That was the first Bill of its kind. At the time I was derided and wrongly accused of introducing double jeopardy since I was speaking only of convicted people. There was no question of double jeopardy. I wanted there to be a right of appeal against undue leniency on the part of some judges. I failed to persuade another place on the need for that Bill and it was rejected by an overwhelming vote of 293 to 30. But, having refused to support my Bill, the Government adopted the idea a few years later and it was embodied in the Criminal Justice Act 1988. Therefore I am a hard-liner so far as concerns brutal criminals.

What drew me to the question of mandatory life sentences was their imposition on battered women who after years of domestic violence were driven in despair to killing their spouses. The seemingly obvious defence of provocation was often found to be useless in a court of law. The reason for it was that case law on provocation was based on a ruling in 1949 by the admirable Mr. Justice Devlin (as he then was). He said that provocation had to cause sudden and temporary loss of self-control to be an effective defence. He believed that if there was time to cool down, the killing was intentional and so it was murder. That view of temporary loss of self-control was quite understandable then when we did not appreciate the effect of violence on the human mind. We now acknowledge that some—possibly many —people do not readily regain normal self-control after sustained brutality. That was acknowledged in Vietnam where American troops suffered great brutality; it was also acknowledged in relation to British troops who fought in the Gulf and British hostages in the Middle East. They required special treatment—rightly so—and so do battered women. I believe it is wrong to insist, as the law now does, that self-control is regained soon after violence. I do not accept that for one moment. This is particularly true when the threat of violence remains. A battered woman, even when her injuries are beginning to heal, may be suffering from the expectation of further violence.

I brought in a Bill in another place to widen the definition of provocation to take account of the effects of domestic violence. The Government refused to support that as well. The best way of proceeding is to press for the abolition of the mandatory life sentence for murder. It is quite nonsensical to give precisely the same sentence to a brutalised woman driven beyond the brink by sustained violence as to vicious, sadistic murderers. Yet that is precisely what we do in Britain today. It is absurd. One argument put forward for the mandatory life sentence is that a life is deliberately taken, and so it is. It is claimed that they are all heinous crimes, carrying the same moral culpability and therefore requiring the same mandatory sentence—life imprisonment.

There is no room for such fanciful Alice in Wonderland concepts in any realistic judicial system; and their absurdity was magisterially demolished by no less an authority than the noble and learned Lord, Lord Hailsham, a former Lord Chancellor, who said: Murder … consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so-called 'Moors murders', to the almost venial, if objectively immoral, mercy-killing of a beloved partner. I do not think anyone could state the situation clearer than that.

The issue of the mandatory life sentence goes wider than battered women. It applies to all murder; but the reality of the sentence, as many noble Lords have explained, turns out to be a bizarre fraud perpetrated in British courts of laws. It is a sham, compelling honourable British judges to create a false impression in court—make no bones about that—to pronounce sentences which they know will not be carried out. It makes them mislead the public. They know, when they pronounce life imprisonment, that the convicted person will not serve it. It will more likely be some 11 years. In some cases more, and in others much less. The judges co-operate in this by sending their view of the minimum sentence to be served to the Home Office where the eventual length of sentence will be determined.

The public judicial imposition of a mandatory life sentence is in practice replaced by the private decision of a Home Office Minister who may or may not be influenced by a private communication from the judge about the minimum sentence to be served. This privacy undermines the principle of justice being seen to be done. Stripped of the judicial facade, our criminal justice system for murder is one in which a politician in secret, rather than a judge in public, determines the sentence. How absurd for a so-called public judicial system!

In addition to flouting the fundamental concept of the separation of the executive and judiciary, our system denies the basic right of appeal, and it replaces valid sentencing in open court with a formal phrase and confers the power to determine the sentence on someone who has not sat throughout the trial. Yet that person determines sentence. It is preposterous. It is not only grossly unfair, it distorts. No wonder that distinguished judges complain that juries will not convict obvious cases of murder because the mandatory life sentence is inappropriate.

Some people claim there are genuine obstacles to change; but few in the judiciary think so. The former Lord Chief Justice, the noble and learned Lord, Lord Lane, has said: There is no greater difficulty in assessing the proper length of a determinate sentence for murder than there is in doing the same for any other form of serious crime. A former Home Secretary, the noble Lord, Lord Waddington, thinks the public would object to this change.

In the debate on the Criminal Justice Bill, he argued that a change would be extremely damaging to confidence in the criminal justice system. He said that Parliament was saying to those concerned by the abolition of capital punishment, "Don't worry. The unique nature of the crime of murder will be marked by a special punishment." He noted that even when murderers were released, it was only on licence, and he claimed that the sentence would last for life. I do not believe for a moment that the public is impressed by the distinction between complete freedom and freedom on licence. Nor do I think there is much support for the view that all murders are equally heinous crimes. If there were, there would be pressure for genuine life sentences. But there is no such pressure.

In my view, the public is divided and confused about the mandatory life sentence. Some think it really does mean imprisonment for life. Others, equally mistakenly, believe that it means 10 or so years for even the most vicious murders. Few know of the elaborate and secretive procedure that takes place. It is time this was ended. With determinate sentences for murder the judiciary, not the executive, gives a public verdict on the seriousness of the crime. By ending mandatory life sentences, we can avoid the anomalies, false impressions and injustices that now exist —and we can win public support for our judiciary. I recognise that there will be no change until it is agreed in another place. That is how it should be. But I hope this Bill will progress and give the other place another opportunity to reconsider this important issue. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Ashley of Stoke.)

6.48 p.m.

Lord Windlesham

My Lords, the penalty for murder has exercised this House for over a quarter of a century, and we can be grateful to the noble Lord, Lord Ashley of Stoke, for bringing it before us again this afternoon, and to have done so in such a powerful and persuasive speech. This is not the moment to go back over the whole history, but it is worth going back to that historic turning point in 1965 when the death penalty was suspended, its abolition being made permanent four years later.

In this House the Lord Chief Justice, Lord Parker of Waddington, although he had previously been a supporter of capital punishment, argued against its replacement by a fixed penalty of life imprisonment. Indeed, he felt so strongly that when the legislation was before Parliament he pressed an amendment at Committee stage and carried it against the Government. That amendment would have given the trial judge in a case of murder discretion to mark the gravity of the offence and to signify the public feeling of revulsion by passing whatever sentence, whether determinate or indeterminate, he considered necessary after having taken account of any mitigating or aggravating factors.

The object of the amendment, Lord Parker said, was very simple. It was, to abolish once and for all a fixed penalty for murder; in other words, to prevent life imprisonment from being the only sentence which can be passed.—[Official Report, 27/7/65; col. 1211–12.] Eleven Peers who held, or had held, high judicial office took part in the vote. All save one, the Lord Chancellor of the day (being bound to accept the view of the Government of which he was a member), voted for the amendment. But then, as now, the amendment was not acceptable to the Government, and was reversed at a later stage.

What a pity the voice of the judiciary was not heeded at that stage. Had it been, then the whole sorry business of the mandatory penalty and what it has brought in its train could have been avoided. Surely it was no coincidence that Lord Parker's successor but one as Lord Chief Justice, the noble and learned Lord, Lord Lane, speaking from the same Cross-Benches and deploying similar arguments based on practical experience, was a sponsor of the amendment to the Criminal Justice Bill in 1991 which was identical in wording to the Bill now introduced by the noble Lord, Lord Ashley. That amendment too was carried against the Government, by a majority of nearly 100 on a substantial cross-party vote. Twelve Peers who held, or had held, high judicial office voted. Once again, all save one, the Lord Chancellor of the day, supported the amendment.

In between those two events, there had been the very full inquiry by the Select Committee of this House on Murder and Life Imprisonment in the Session 1988–89, of which some members, including myself, are present in the Chamber this afternoon. A mass of evidence was taken in public sessions held in London and Edinburgh. The arguments for and against the retention of the mandatory life sentence for murder were subjected to a rigorous scrutiny, and its abolition was recommended.

The criticisms of the mandatory penalty for murder are now so well known that they hardly bear further repetition. The parrot cry that murder is the most heinous of all crimes is thoroughly discredited, based as it is on a stubborn refusal to acknowledge that the scope of the offence of murder is so wide.

The imposition of the same sentence in each and every case, from the most brutal planned assassination to the most pathetic case of mercy killing, or the pub fight between two close friends where the intention was not to kill but to cause serious bodily harm, cannot do other than lead to injustice. English juries, thank Heaven, like the judges, can recognize injustice when they see it. The result can be verdicts of manslaughter rather than murder on the grounds of diminished responsibility or provocation even when the evidence for those defences may be thin. When that escape route—for that is what it is—is not open, there is mounting pressure to broaden the application of the existing defences. For example, the noble Lord, Lord Ashley, has spoken effectively about the situation of battered women in relation to the definition of the defence of provocation.

Let us pause here for a moment to reflect on a recent case, which has been raised in this House: that of Dr. Nigel Cox. Dr. Cox is the hospital consultant, now entirely properly restored to his post, who was tried and found guilty at the Crown court of the attempted murder of a terminally ill patient by giving her a lethal injection. He received a 12-month suspended sentence. The trial judge made a point of saying in advance of passing sentence at the end of the trial that he was not contemplating a custodial sentence. If, on the facts (as might well have been the case) it was proved beyond reasonable doubt that the injection had been the cause of the old lady's death, the charge would have had to be murder, and the penalty would have had to be life imprisonment. It cannot be right to allow a discrepancy in sentencing on that scale when the act was identical, the intention the same.

If we turn to public attitudes, the life sentence is, in a memorable phrase used by the noble and learned Lord, Lord Hailsham of Saint Marylebone, a sentence which nobody can understand". Most—although perhaps not all—of the general public are aware that life imprisonment does not mean imprisonment for life but are bewildered as to what it does mean.

The Home Office seems to be trying out a new line of approach to those who have an ear well-attuned to statements from that source. At any rate, it is not one that I have heard put in this form before. My noble friend Lord Ferrers assured the House in answer to a Question on 27th January about the release on licence of the murderer of a police officer that, a life sentence is a sentence for life of which part is spent in custody".—[Official Report, 27/1/93; col. 1261.] Although (as the Minister has since acknowledged) it would have been more accurate to have said, "A life sentence is a sentence for life, all or part of which may be spent in custody", this formulation fails to correspond with the definition of the penalty for murder which is contained in Section 1 of the Murder (Abolition of Death Penalty) Act 1965. There the statute plainly states: a person convicted of murder shall … be sentenced to imprisonment for life". Therein lies the heart of the problem of public perception.

Since the law recognises no categories of murder—noble Lords who remember the ill-fated Homicide Act 1957 will agree that they were found to be untenable—and since no sentencing discretion is permitted to the court, then the only way to differentiate between relative degrees of gravity is by executive action. That means involving Ministers, and the civil servants who advise them, in what are perilously close to sentencing decisions on the quantum of punishment as it is reflected in the period of time to be spent in custody.

It is that feature which has led to the adverse judgments by the European Court of Human Rights—and to several cases brought before our domestic courts, both of which are likely to continue to bring about piecemeal changes in the procedures governing life sentences.

There is much more to be said, but I shall stop there. The Bill is short, clear and straightforward. It would remove an acknowledged abuse, and it deserves the support of the House. Sensitivity towards public opinion is no longer sufficient reason for clinging to the status quo.

7 p.m.

Lord Wigoder

My Lords, I join with the noble Lord, Lord Windlesham, in expressing my gratitude to the noble Lord, Lord Ashley of Stoke, for bringing forward this proposal today in the form of a Private Member's Bill. I am sure that the noble Lord, Lord Ashley, will forgive me if I say that I do not know whether he or I would be the more surprised if the Bill were to proceed straight on to the statute book. I do not believe that that is the object of bringing the matter forward today. I believe that the real object is to put this matter back into the public domain and to ensure that it remains there and continues to be debated until it is acted upon by the Government.

It has already been commented that this proposal has been debated at great length and in great detail on several occasions in your Lordships' House in the past few years. The most recent was in April 1991 during the Committee stage of the Criminal Justice Bill. Re-reading those reports, it is clear that every conceivable argument has already been used on both sides of the House. Indeed, if any noble Lord were to come forward today with a wholly new argument it would almost certainly he totally unsound. In those circumstances, not much is to be gained by at least my repeating the arguments that have been used previously. This is primarily an occasion where one should stand up and be counted, and I am delighted to stand up and be counted in support of the proposal in the Bill, and to do so not just on my own behalf but on behalf of my Liberal Democrat colleagues.

I am aware, of course, that the debate will conclude with unremitting opposition being expressed by the Government. I find that an encouraging sign. On present form, it means almost inevitably that within a month or two the Government will be expressing enthusiastic support for the proposition. I looked at how the opposition was expressed on the last occasion in your Lordships' House when the case was put on behalf of the Government by the noble Lord, Lord Waddington, who is now basking in rather warmer climes. The noble Lord appeared to make three points, all of which I believe are equally unsound.

The noble Lord said, first, that taking human life was something uniquely horrible. That simply does not tie in with the facts. Taking human life can be, and often is in a murder case, an instance of someone using grievous bodily harm with intent to cause grievous bodily harm, and in fact causing death. That is murder. It is idle to suggest that such an instance is anything like as horrible as some of the cases that come before the courts where people deliberately inflict sadistic torture on their fellow human beings, even though death is not the result. My mind goes back to some of the gangland warfare cases in London in which I had the misfortune to be involved professionally, many years ago now. It is not right to say that such instances are not far more horrible than some of the murder cases—not all of them—that take place at the lower end of the spectrum of gravity.

Secondly, it was suggested the last time around—if I may use that expression—that it is therefore appropriate that a unique sentence of life imprisonment should be passed. It was unique, it was suggested, because it lasted for life. It lasted for life, not in the sense that the defendant was kept in prison for life, but in the sense that for the rest of his life after his release he was subject to be recalled on licence. That is sheer sophistry by the Government. No judge ever passes a sentence of imprisonment for seven, eight, or 10 years, followed by being subject to recall for the rest of one's life. The sentence that is passed is a sentence of imprisonment for life. It is idle to suggest that that is a unique sentence, because it lasts for the whole of one's life, in the sense that the power of recall lasts for the whole of one's life.

The third argument that was used was that if we abandon the mandatory life sentence, that will in some way diminish public confidence in our criminal justice system. Nothing could be further from the truth. I cannot help asking, first: what public confidence are we talking about? The fact is, as we are all aware, that it is at a very low ebb at the moment. I do not suggest that that is so entirely because of the absurdity of the mandatory life sentence, but it does not help that we have a principle of sentencing for murder which is widely perceived as being illogical, unfair and totally secretive in its administration.

If we adopt the proposal in the Bill, it would increase public confidence in our system. One can perhaps test that by looking at the situation in relation to murders at both ends of the spectrum. In relation to the most serious, dreadful murder cases, the present sentence is one of life imprisonment. That is widely perceived by the public as being a sentence of anything from seven to 10 years, or perhaps a little more in an especially bad case, followed, as I say, by the fact that there may be a licence and a power to recall upon licence.

If, instead of that sentence, the judge were empowered and encouraged not merely to make a recommendation—that takes us into an area of administrative law which the general public do not understand—but to pass the appropriate long sentence of 20, 30, 40 years, or whatever it may be, in respect of the appalling cases, it would give the public confidence in our criminal justice system. If there are any noble Lords who still look back with nostalgia at the days of capital punishment, I am sure that they would agree, on reflection, that it is far more satisfactory from their point of view that tough, heavy sentences should be passed in the small handful of extremely serious murder cases, than the comparatively innocuous—because it is widely misunderstood as being so innocuous—sentence of life imprisonment.

At the other end of the scale, one has murder cases of which examples have been given in your Lordships' House many times: the parents who put a totally deformed child out of its misery; the case referred to by the noble Lord, Lord Ashley of Stoke, of the woman who decides, after years and years of intolerable ill-treatment, to take the life of the man who has been causing that ill-treatment. The public do not regard it as sensible that in those cases the judge has to pass a sentence of life imprisonment, because the public knows full well that in such a case the defendant will not be kept there for the term of his or her life, or anything remotely like it. Again, it would be more real that the judge should have the power to pass the appropriate sentence which may not be a sentence of imprisonment or, if it is, a short, simple term of imprisonment.

At present the problem is dealt with because often as not the jury takes the matter into its own hands and refuses to find the defendant guilty of murder, although by any reasonable view of the law that is what the crime is. The jury stretches the law to interpret the defendant's behaviour as being subject to provocation when it is not or, alternatively, it finds on the most tenuous evidence that is not supportable that there is diminished responsibility. The jury does so as a device to enable the judge to overcome the necessity of passing a mandatory sentence.

I believe that at both ends of the spectrum public confidence in our criminal justice system would be increased if judges were given the discretion to impose determinate sentences. It is with great enthusiasm that I support the proposal put forward in the Bill.

7.11 p.m.

Lord Ackner

My Lords, I too refreshed my memory as to what was said on this subject in recent debates in this House and in another place. The Government have used three recurring basic propositions. With great respect, they would cause the forensic eyebrows of a first-year law student to be raised more than somewhat. The first is that murder is a unique offence. That is a truism. Arson is a unique offence and so is forgery and any offence which has its own special ingredients. That proposition adds absolutely nothing to the debate.

The second proposition is that murder is a uniquely heinous or wicked crime. I shall not take up your Lordships' time by looking at the wide range which the offence can cover. It does so for the simple reason that the definition is so wide. If, as some suggest, the definition were limited—and I do not support it—that it should require an intent to kill, that would narrow the offence. But there is added an intention to cause grievous bodily harm. This involves widening the offence considerably.

In the past we tried to categorise murders; putting them into special categories of seriousness. Your Lordships may remember that in our debate on 6th November 1989 at col. 454 we were reminded by the noble Earl, Lord Ferrers, of what was said in regard to the Homicide Act 1957, which did precisely that. Lord Canesford said: If you wish to dispose of your wife and not suffer the penalty of death you must not shoot her or drown her, but you could stab her, strangle her, poison her or set her on fire and you would get away with it". It was because the categorisation of murders proved to be so unsustainable that we now have no categorisation.

Examples have been given to your Lordships of the anomalies which will occur in cases in which the public see no real seriousness in the offence but yet the jury are obliged to convict of murder. Perhaps I may give your Lordships an example which is seldom referred to. It is a complete defence to a charge of murder to say, "I used no more force than was reasonably necessary to defend myself". However, the calculation of how much force is reasonable may be difficult. In a moment of deep anxiety a person may obviously exceed what is the reasonable force that can be used. He may fire a gun when what he should do is to strike with a stick. If the accused exceeds the bounds of reasonable self defence that does not make the offence one of manslaughter; as the law stands, it is murder. To group it together with the terrorist-type of case is an absurdity.

The Government's third proposition is that murder should attract a unique sentence. There is nothing unique about imprisonment for life because it is imposed for a wide variety of crimes. What is unique in regard to murder is the automatic imposition of life imprisonment. It is that which is being criticised.

One has wondered why the Government have resisted supporting the proposition that there should no longer be a mandatory life sentence, in particular when the former Lord Chief Justice has spoken in favour of its abolition. Indeed, I am instructed to inform the House that that is the view of the present Lord Chief Justice. I have heard two explanations. One is cynical and hitherto I have rejected it. The cynical explanation is that no body of politicians, and certainly no bureaucrats, happily give up power. Considerable power is centred in the Home Office in regard to those convicted of murder because it decides when release should occur.

That is not so in cases in which life imprisonment has been imposed discretionary by the judge; for instance, in cases of manslaughter as a result of diminished responsibility or manslaughter by reason of provocation. For that category of case there is now set up a tribunal, presided over by a judge who has the assistance of a psychiatrist and a chief probation officer. After the offender has served what is known as the appropriate sentence for retribution and deterrence—that is the appropriate part of the sentence attributable to punishment—they decide whether it is safe for the accused person to be allowed out. That is a difficult decision, in particular when manslaughter was committed by a person suffering from diminished responsibility.

But for the wide range of murder cases no such tribunal has been set up. That was recently resisted by the Home Office when the provision was included in the Criminal Justice Bill during its passage through this House. It was removed in another place. One asks, why? The other basis is that the public would lose confidence in the administration of justice if sentences were imposed at the judge's discretion because the destruction of a person's life is so unique that it requires such a punishment.

In the report of the Select Committee, to which reference has already been made, the reaction of the public was illustrated by two cases. The first was the reaction to the deliberate taking of life in the case of the Maw's sisters who were sentenced to three years imprisonment. They had deliberately killed their drunken father and their sentence was harshly criticised for its severity. In the case of one of them the sentence was reduced to six months. The second case was that of the Thompson sisters who shot their tyrannical father as he lay in bed having an epileptic fit. They were given a two-year suspended sentence. In the former case provocation was accepted as the defence, and thus reduced the offence from murder to manslaughter. In the latter case diminished responsibility reduced the offence from murder to manslaughter. However, the public seems to have been well able to recognise the powerful mitigation which existed in those two cases.

The Select Committee was mindful of the anxiety that the Government might be criticised for "going soft". Paragraph 178 of the report states: After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now". That is for the very simple reason that life sentences would then be reserved essentially for the particularly outrageous murders or for those where there was a high degree of uncertainty about the risk by reason in particular of the accused's mental condition.

The committee went on to say—and in reality this should put the Government's mind at rest— The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life". As matters stand, the sentence of life imprisonment has been grossly devalued. It has caused the public to believe that nowadays the average length of sentence served is some nine years, which may well be not far from reality because the relatively moderate cases are mixed in with the very serious ones.

I invite the Government to show the courage of their convictions as described in the Government White Paper published some three years ago entitled Crime, Justice and Protecting the Public. It was there stated that the Government's main aim was: To ensure that convicted criminals in England and Wales are punished justly and suitably according to the seriousness of their offence". As I understand it, that is what is known as "the just desert approach". I can see no reason why we should single out one crime to which that philosophy should not apply.

7.22 p.m.

Lord Archer of Sandwell

My Lords, after four such formidable contributions, all in total agreement, I am tempted to feel superfluous. I remember reading somewhere that the volume generated by 27 singers is only twice that of one singer. After four contributions of such resonance, I venture to join in the choir for only two reasons: first, because like others of your Lordships, I have ventured to argue the matter in the past and, secondly, because I was anxious to pay tribute to my noble friend Lord Ashley for giving us this opportunity to discuss the matter.

This question arose initially from matters raised by the judiciary as it encountered the problem in practice. It is now compassed about with a great cloud of witnesses: the Butler committee on mentally abnormal offenders in 1975; the advisory council on the penal system in 1978; the all-party penal affairs group in 1986; and the Select Committee of your Lordships' House, to which reference has already been made in the course of the debate. Of course, there is also the very well-read and cogently argued book by the noble Lord, Lord Windlesham, himself a former Home Office Minister, in which I first encountered some of the arguments which have been raised in the course of the debate.

The case against the mandatory sentence can be stated in two sentences. Murder is a comprehensive label for a whole spectrum of offences. As the noble and learned Lord, Lord Ackner, said to us, it is a very wide definition. Offences may range from the deliberate and brutal killing of a total stranger for profit to a heart-broken reaction to marital infidelity. It cannot be right that they all merit the same sentence.

Nor do I believe that the public do not understand that point. In November 1990 BBC 2's "Public Eye" commissioned a Gallup poll. The first question that people were asked was: Do you think that there should be a mandatory life sentence for murder? The replies amounted to a dead heat: 47 per cent. said yes and 47 per cent said no. The interviewees were then asked: Do you believe that there should be a sentence of life imprisonment for someone who terminates the life of a terminally ill relative? Only 10 per cent. said yes to that proposition. I believe that the reactions of the public depend very greatly upon the questions which they are asked.

Of course, judges have commented in desperation over and over again on how much court time is taken up arguing about the artificial concept of diminished responsibility when the real issue should be how the public can best be protected.

How do we find ourselves in this situation? Again, I remember that the history of the matter was traced by the noble Lord, Lord Windlesham, in his book. Prior to the 1965 Act, it used to be said in undiscriminating terms that murder was a uniquely wicked offence which required a unique punishment. In those days that meant the death sentence. However the death sentence was never unique to murder. On the statute book at present there are death sentences for offences for which no one in his right mind would have argued had we started with a clean sheet. But they are still there.

What was unique about murder was that the sentence was mandatory. When the death penalty for murder was abolished in 1965, those who opposed its abolition were softened up with the concession that murder would still carry a unique sentence not, as the noble and learned Lord, Lord Ackner, reminded us that a life sentence is unique to murder. It never was. What is unique is that it should be mandatory. That is the logic of how we reached the present position and it is the logic of Alice in Wonderland.

As your Lordships have reminded us, this matter was debated extensively during the passage of what became the Criminal Justice Act 1991. In another place it was debated in Committee and again on Report. In your Lordships' House it was debated and amended with the support of a formidable body of judicial opinion. It was debated again in another place as regards that amendment. The result was predetermined not by the merits of the argument but by the Whips.

However, in the course of those debates, I, like some of your Lordships, attempted to identify the arguments which had been set forth against the proposal. I was rather more successful than the noble Lord, Lord Wigoder, because I identified four—that is two in addition to the two which the noble Lord mentioned. The first has already been mentioned in the course of the debate. It does not matter that a life sentence may not really be what it says. We deny discretion to the judiciary but we give it instead to the Home Office, which decides when release is appropriate.

There are two difficulties about that. One was indicated by my noble friend Lord Ashley. Individual freedom should be determined by the court after a proper trial and with a right of appeal. The Home Office is an arm of the Executive. In fairness, it recognises that it would not normally be an appropriate body to decide for how long someone should be deprived of his liberty.

The second problem is that, if the length of custody is to bear some relation to the degree of guilt, there will be cases in which the life sentence will in practice mean only a relatively short period in custody. Nothing is more calculated to bring into total disrepute the whole concept of a life sentence. It will be said that the life sentence is a sham and a soft option. Perhaps even more worryingly, there may be a danger that, in order to avoid that consequence, some offenders may be kept in custody for longer than the case warrants.

The other argument which was adduced in the course of the debates in 1991 was that, in a recent Division in another place on the return of capital punishment for murder, some Members had been induced to vote against the resumption of capital punishment on the basis that the alternative would be the mandatory life sentence. It was said it would be a breach of faith now to tamper with the life sentence. I was not greatly impressed by that argument in 1991. I wonder whether it will be used at this stage. If so, I wonder for how long it can be allowed to inhibit all further debate on the issue. However, I hope we shall not hear it in the course of our debates on my noble friend's Bill.

As my noble friend said, no one is suggesting that there may not be cases where a life sentence is appropriate. My noble friend's Bill does not seek to remove the powers of the court to pass that sentence in an appropriate case. It seeks merely to enable the judge to consider the question of whether a life sentence is appropriate, because the alternative, the present position, is a compulsion to pass a life sentence whether or not it is appropriate, or even in a situation where it is clearly inappropriate. I believe that historians in the future will wonder how anyone could ever have sought to argue for that proposition.

7.31 p.m.

Lord Houghton of Sowerby

My Lords, I find myself in most distinguished company tonight on this Bill. I am glad, however, that my noble friend has decided to tread deeply into the philosophical, emotional and moral issues which come before us from time to time. This is a much better and wiser place than the other to discuss some of the deeper questions of human existence and purpose. I hope he will not tire of the work that he has started on. If there is anything to be said about the debate tonight, it is that it has to be one of as many as it will take to get this Bill through. I think that the time will come when we shall say to the Government firmly, "We do not care what you say. It does not matter what you say. You must listen to the will of the House and the will of Parliament".

Governments by convention do not introduce Bills of this kind at all. This is one of the moral issues which divide the parties and give the Whips a troublesome time as the Government are not certain where they stand. They leave it to the House to find its way. We should consider that governments had no views on dangerous dogs between 1871 and 1991. Can one believe that they had nothing to say about the law of abortion for the 20 years in which the Abortion Act 1967 was assailed in another place, session after session? They would not even provide time for the House to reach its own conclusions on the matter. However, in the end they had to take a hand in the matter, and a good one it was too! They brought to an end in a matter of hours a controversy which had strewn the work and the expense of Parliament for 20 years.

I have no experience in the matter we are discussing that would be of benefit to your Lordships' House. However, I have had two experiences in my life regarding this issue that profoundly affected me. The first occurred many years ago when I was asked by the Revenue Players if I would take a small part in a play, the first act of which concerned a judge in the fullness of his robes and dignity pronouncing the sentence of death. I sat in the full garb of a justice. A phantom hand came out of the darkness and put the black cap on my wig which made me look more ridiculous than ever. I had to announce in sepulchral tones the dread words that the law prescribed when a judge sentenced a prisoner to death. The papers stated that weeping could be heard in the court and that the prisoner stood transfixed as if he was incapable of realising what was happening. I had to endure several rehearsals of the play to acquire the right poise, the right voice and the appropriate sense of dread. By the time I performed in the play I began to feel that I alone was a hanging judge.

I have visited constituents serving life sentences in Wakefield prison. Wakefield was the catchment area for the Sowerby constituency. There were several lifers in the prison from my constituency. Escapes had occurred from prisons and the late Lord Mountbatten was appointed to consider how best to prevent those escapes. When I visited Wakefield prison I believe it was the deputy governor who told me that he deplored escapes from prison but what worried him much more than that was how to keep 147 lifers sane. However, the public do not care about that. If a prisoner escapes, the public are worried and the newspapers write excited articles about it. The public are advised not to accost people who may be escaped prisoners. However, when the prisoners are recaptured and are safely back in prison—for what length of stay nobody either knows or cares—the minds of the public are at rest.

I had interviews with several young men who had been sentenced to life imprisonment. They only just escaped the death sentence because the change in the law had only just taken place. One of the young men had married a young woman. They were both very young. They had their first child. They were both staunch Methodists and their families were well respected. The shock to the town of Todmorden was acute when the news of the crime emerged. The young man's sleep had been disturbed by the crying of his baby. He found that unbearable. One night he got up to try to comfort the crying child and he flung it against the wall and killed it. No one was more conscious of the enormity of what he had done than that young man within a few minutes of the crime.

After the young man had spent about eight years in prison I wrote to the then Home Secretary, Mr. Henry Brooke. I wrote that the young man was keeping his marriage going and that his wife had said she would stand by him. She had visited him regularly in prison for nearly eight years. I asked what was the point of keeping the young man in prison any longer. Finally, I received an answer that the sentence was a mark of the public's disapproval of the crime of murder. It was a matter of public opinion and of what the public would say. As a matter of fact the public in the young man's local area were pressing the Government for his release. He was released in due course and his marriage survived, I am glad to say.

It is too much to expect that when the noble Viscount gives the advice of the Government he will tell us anything that is worth listening to. He will no doubt tell us the truth, but I guess that it will not be the whole truth. We are dealing with the politics of crime. The Home Office has taken such a battering in recent years from the tabloid press that it is scared of what the Sun newspaper might say. The noble and learned Lord, Lord Ackner, referred to the Government being accused of being soft on murder. Now, when even the Labour Party is apparently promoting law and order to the top of the political agenda, is a difficult time to ask the Government to agree to anything which might suggest to the unthinking public that they have gone soft on murder, because it might be thought that if they are soft on murder they will be soft on everything else. The trouble is that there is such a lack of confidence in the Government at present that they are almost afraid to speak. I am afraid that we cannot even hope.

Noble Lords will expect me to say that I am opposed to all mandatory sentences. The Government themselves created a mandatory sentence in the Dangerous Dogs Act 1991 which we dealt with as recently as 26th January. The Government themselves, despite the fear of mandatory sentences, have introduced one of the three Acts that contain them. That is leading to just as many miscarriages of justice as the one that we are discussing tonight, although at a very much lower level. The injustice and inflexibility exist. I am against all mandatory sentences which deny the courts some discretion on matters within their jurisdiction. Imagine magistrates sitting for hours hearing a case and being told that when they reach their verdict properly on the evidence and convict the accused person they can pass only one sentence.

I do not believe that there should be any sentence of life imprisonment anyway. In this House we passed a Private Member's Bill not so long ago defining life imprisonment as the maximum sentence for rape and for attempted rape. Those were not mandatory sentences but the legislation raised the limit of detention for those crimes to life imprisonment whereas that sentence had not previously appeared on the criminal calendar for rape. Therefore we have to be careful when we increase the severity of sentences.

I sincerely hope that there will be no fudging tonight on this Bill. We should register as frequently as we can the view of the House on this subject and fight the matter out, otherwise we shall become lost in a struggle for pre-eminence over the severity with which governments are to stamp out crime—which, of course, they will not be able to do.

A great many theories about the source of crime are misplaced. We know that in this matter one cannot win. In the case of the doctor which the noble Lord, Lord Windlesham, mentioned, the nation would have been affronted had the law taken its predictable course in his case. However, I also recall the case of a young lady who was sentenced to life imprisonment for throwing petrol over her husband and setting light to him. She was able to plead grievous treatment by her husband. Was there not a show of public support for her release, and when she was released did she not receive a heroine's welcome when she returned to her friends and family? If the mandatory sentence seems unduly harsh there are complaints. In other cases it is not thought to be sufficiently severe for a particular crime when people say of the perpetrator, "Nothing is too bad for him".

These matters are troublesome. However, all that has been said tonight leads us along one straight course. Many of us have been here before. I feel as if I have been here all the time. Certainly I remember the valiant pioneering days of the late Mr. Sidney Silverman and Leslie Hale, who later came to your Lordships' House. This is where the initial battles were fought; and very difficult they were. We tried to make the distinction between capital punishment and non-capital punishment. As the noble and learned Lord, Lord Ackner, said, the system of degrees of murder introduced in Rab Butler's time was a failure because of the absurdities which arose. The noble and learned Lord gave striking examples of the ways in which one could get rid of one's wife without being charged with capital murder, but if one went out with a revolver in one's pocket and broke into a shop and shot the shopkeeper then one appeared on a charge of capital murder.

I hope that the noble Viscount will play a more dignified role tonight than merely acting as the voice of the lowest common denominator in the Home Office. I sympathise with him. I sympathise with all the Ministers in the Home Office, and the Home Office as a whole, in having so many explosive and emotional issues packed into their area of responsibility. This is one of many.

Let us now ask my noble friend Lord Longford to speak in his traditional way on this subject. No noble Lord has shown more courage in his attitude towards the process of law in cases of this kind than my noble friend Lord Longford, so much so that he has been regarded as a crackpot. I have heard atrocious judgments of that kind passed on him whereas he is one of the most noble of our noble Lords. I hope that when the time comes to celebrate the great victory the name of Frank Longford will be remembered in your Lordships' House.

7.48 p.m.

The Earl of Longford

My Lords, I am so overwhelmed that I hardly dare rise. I feel a mixture of emotions but above all gratitude to the noble Lord, Lord Houghton. We older citizens in this House — although I do not see many of the very oldest here tonight—look upon him as our senior prefect. To be praised by the senior prefect is praise indeed. I return the compliment by saying that he made a most powerful and eloquent speech which was up to his usual high standard.

In thanking the noble Lord, Lord Ashley, for introducing the Bill, I offer him strong support, as have all the other speakers. I am well aware of his social concern over many years. My mind goes back to the disablement legislation in 1970 over which he played such a prominent part and which I had the honour of carrying through your Lordships' House.

I hesitate to pit my first-hand knowledge of convicted murderers against those whose professional experience takes them into that area. To put it crudely, I have been employed perhaps to minister justice to them. However, I venture to think that few amateurs have had as much contact with those same convicted murderers over the past half century.

One strong reason for supporting the Bill—it fits in with what the noble Lord, Lord Houghton, said so eloquently—is the lamentable way, in some respects, in which life prisoners are treated at present. I refer to sentence and the date of release. Some people say that life should always mean life. I do not believe that any noble Lord in this House would say that. I was a little nervous about something that the noble and learned Lord, Lord Ackner, said. He seemed to imply that sometimes life should mean life. I do not believe that that is a very human way of looking at the situation. Let us take the extreme case of a dangerous terrorist who does not repent. I believe that the noble and learned Lord agrees that there should be a judicial tribunal which can consider the matter from time to time. The present treatment of life prisoners in regard to release is unsatisfactory. At some point a prisoner receives a message from some official in the Executive to say that he has been given a date for review and possibly for tariff. I shall return to the subject of tariffs in a moment. I know well one prisoner who has now been in prison for 27 years. He has twice been recommended by the local review committee for parole. He is still in prison without prospect of coming out. It may be said, "It is politically impossible, my dear chap. You don't understand the real world. The Minister would lose caste. He might even lose his job if he let this prisoner out". If that belief were propounded—I hope that no one in your Lordships' House would propound it—I would view it with the utmost contempt.

I now refer to another case. It has not been mentioned so far as I am aware in your Lordships' House. I have visited a lady in Holloway more than once. She was convicted of murder. I have to accept that that was rightly so. She herself does not reject that it was in its own terms a correct decision. She was convicted of the murder of her husband's mistress after herself being ejected from the house. She was not present when the murder was committed. She is a quiet little person who would certainly have no control over anybody. She would be unable to employ a hit man or force anyone to commit the murder. For whatever reason, two other people murdered the mistress; and this lady had used damning words, words which obviously involved her in the plan to commit the murder, and words which she bitterly regrets today. I do not say that she bitterly regrets them because they have landed her in prison for many years but because she realises how wrong they were. However, that lady has now been in prison for six years.

Recently she received a letter from an official. I must not say an anonymous official, although that is how people refer to such people; presumably the official put a name to the letter. However, it was from an official of whom I had never heard, and neither had she. She was told that after 17 years in prison she will come up for review. I understand that that means that she will have a tariff of 20 years. When she receives a tariff even of 20 years it does not mean that she will be released. A dangerous person is not released when his or her tariff is completed. But no one could possibly believe that this quiet little person is dangerous. The hope is that she will be released after 20 years. That is the most optimistic assumption at present.

Does anyone really believe that someone like that should spend 20 years in prison? Under the provisions in the excellent Bill proposed by the noble Lord, Lord Ashley, for 20 years in prison she would need to receive a sentence of 30 years. We have an eminent judge present and another learned in the law. Does anyone really believe that 30 years is an appropriate sentence for a person who was not even present when the murder was committed and had no control over the murder?

That is why I prefer the noble Lord's Bill. It would provide justice for people such as that lady and so many others. The noble Lord, Lord Houghton, was kind enough to refer to my long experience of the subject. I can only say that I can think of a considerable number of people, some of whom I have known at first hand and others about whom I know a great deal, whose plight is similar.

I ask the Government two questions. I gave the Minister notice of them this morning. I hope that he has had time to look into the issues. How many life prisoners at present still have not been given a tariff? The first person to whom I referred has had no tariff after 27 years. My second question is connected with the first. Is it the case that at present a prisoner who in the mind of the Home Office has a tariff of more than 20 years is not told the tariff; it is only if one has a tariff of 20 years or less, such as the woman to whom I referred, that one is given the tariff? If that is true it is an abomination. I believe that if one's tariff is understood in the official world to be more than 20 years one is not told what the tariff is.

I put that matter plainly. The Minister has had notice of the question. I ask him whether he defends the position. If he shrugs his shoulders and says, "It is not my fault", I agree that it is not his fault. The noble Lord, Lord Houghton, said that he was sorry for the Minister. I too feel sorry for him. I feel such admiration for his uncle, Mr. David Astor. He is just about the best friend prisoners have in this country. I feel sorry if the noble Viscount fails to live up to his uncle's standards. The Minister is torn between two conflicting forces: the Home Office and his uncle. I hope that he will speak more in the terms of his uncle than the Home Office.

7.57 p.m.

Lord McIntosh of Haringey

My Lords, as is always the case when speaking from the Dispatch Box on a Private Member's Bill, I am obliged to preface my remarks by saying that we do not take a party point of view on such Bills. Therefore anything I say is my own belief and is not to be construed as the opinion of my party.

I agreed with almost every single word that my noble friend Lord Ashley said. If I express one or two reservations at the end of the speech, let me start by listing the number of issues on which I find myself at one not only with my noble friend but with all other noble Lords who have spoken. First, let it be clear that as many have said, including, with the most authority, the noble Lord, Lord Windlesham, murder is many different offences and not a single offence. Examples have been given of different kinds of murder which deserve different sentences. The example has been given of Dr. Nigel Cox. It was almost by accident that it could not be proved that the injection which he gave was the cause of death. That saved him from a mandatory life sentence. Such an example reinforces the point.

Secondly, let it be clear that if it comes to the choice between redefining murder and doing something about the sentence for murder, the answer must be to do something about the sentence rather than redefining murder. The arguments which have been put against the classification of murder as first degree or capital murder seem to me to be overwhelming. If there is to be a recognition of the different kinds of offences which murder is—and I believe that 60 per cent. of murders are committed by persons known to the victim—it should be the sentence which is changed.

Thirdly, let it be clear that the existing situation where the decision on that part of the life sentence which is spent in custody is made by civil servants making a recommendation to the Home Secretary is wholly unsatisfactory. The noble and learned Lord, Lord Ackner, referred to the alternative possibility of a tribunal including a judge, a psychiatrist and others much better qualified than civil servants or the Home Secretary to make the decision. It is clear that the enforcement which we have of the mandatory life sentence is quite unsuitable. Apart from anything else, although Ministers never openly admit it, it is still the case that those who continue to believe themselves to have been wrongly convicted of murder are not considered to have shown remorse and are not eligible for adequate consideration. They are discriminated against because they believe so firmly in their own innocence that they are prepared to put that belief above the hope of earlier release. As my noble and learned friend Lord Archer said, some of the argument shows the logic which is in Alice in Wonderland.

Yet, I cannot believe that the noble Viscount will not agree in his response with the universal view of the House. I cannot believe that he will stand up and say anything other than that he is convinced by the arguments. If that is the case—and I think I know him well enough to believe that it is—I hope that he will consider the dangerous possibility that removing the mandatory life sentence may in some cases lead to longer sentences. I hope he will consider the possibility that there are judges who would wish to move towards longer sentences for certain kinds of murder.

Within the past month the noble Lord, Lord Boyd-Carpenter, raised a Starred Question in the House about a prisoner whom he called "convict Jeffs". Clearly, the impetus behind his Question was that somebody who had murdered a policeman should not be released as early as 20 years after being sentenced.

There are dark pressures in our society which would lead us towards longer sentences, particularly for the more offensive kinds of murder. I am not saying that we are moving towards the 99-year sentences which are common in the United States; but there are people who would wish life sentences really to be life. Those like my noble friend Lord Longford who know about such matters from first-hand knowledge and those who, like my noble friend Lord Houghton of Sowerby, know about conditions of lifers in Wakefield Prison know how utterly destructive of human personality that would be.

If (as I truly believe we shall), we not only pass the Bill but convince the Government that it is right that it should be passed, we must have protection against those darker forces in our society.

8.4 p.m.

Viscount Astor

My Lords, this Bill deals with a subject in which not only the noble Lord, Lord Ashley, but also your Lordships' House as a whole, have taken a particularly keen interest in recent years. The Select Committee on Murder and Life Imprisonment, under the chairmanship of the noble Lord, Lord Nathan, put forward in its report some powerful arguments in favour of the abolition of the mandatory nature of the life sentence for murder.

I am very much aware of the strength of feeling which this serious issue arouses on both sides of the argument. The debate about the merits of the continued existence of the mandatory life sentence touches on some very difficult and highly complex matters to which there are no easy answers.

I know that both those who call for the mandatory life sentence to be abolished, and those who argue equally forcefully for its retention, hold deep-rooted views as to the powers which the courts should have to be able to deal with those who have committed the gravest of all crimes.

I respect those views. However, I am bound to tell your Lordships that the Government's position remains as it was when your Lordships last discussed this matter in November. The mandatory life sentence should remain.

The abolition of the mandatory life sentence would be a momentous step. I make no apology for saying that murder is a unique offence which for a very long time has attracted a mandatory penalty reflecting that difference. The fact that the penalty for murder is always life imprisonment ensures that someone whose deliberate action has resulted in the loss of another person's life will always—even if released from prison on licence—be liable to imprisonment for the rest of his or her life. That severe but, many would say, wholly justifiable and proper consequence, can only be achieved by a mandatory life sentence. We are not yet persuaded that it would be right to remove it.

The reason for abolishing the mandatory life sentence which is put forward most often and has been put forward by your Lordships this evening is that all murders are not of the same type. It includes many cases where the requirements of retribution do not demand a long period in custody. It is, some would say, wrong in principle—and indeed unfair—that the woman who, for example, has been subjected to intense mental and physical violence at the hands of her partner over a period of many years, or the person who feels unable to stand by any longer and watch his or her loved one suffer terrible pain and is actually begged by that person to help put an end to that suffering, should receive the same sentence as the cold, scheming serial killer or the terrorist whose callous acts—

Lord McIntosh of Haringey

My Lords, I am sorry, I did not mean to interrupt the noble Viscount in mid-sentence. If that is the case, why has Mrs. Ahluwalia been released and above all why is Mrs. Thornton still in prison?

Viscount Astor

My Lords, the noble Lord asked me about specific cases on which I cannot comment. To return to what I was saying, it is wrong in principle that such a person should receive the same sentence as, for example, a terrorist whose callous acts are committed with no regard to the trail of death and destruction which they leave behind.

What this criticism overlooks, of course, is that, while the actual sentence imposed by the court—life imprisonment—is technically the same in every case, what it actually means in practice depends very much on the individual circumstances of the offence and the offender.

The arrangements for administering the mandatory life sentence are, in fact, highly flexible. They allow my right honourable friend the Home Secretary considerable discretion over the period which an individual murderer is detained in custody and they allow sufficient scope to ensure that the period is consistent with the particular circumstances of the case.

Unlike the criminal law, which properly looks only at intention in convicting a person of murder, the Home Secretary can take full account of every aspect of the case, including the motives for the killing, in setting the most appropriate period of detention for individual murderers.

No one is saying that the battered wife who killed her cruel husband when she could take no more should spend the same length of time in prison as the vicious killer of a policeman. Indeed, the Home Secretary is continuing the policy of his predecessors, as originally announced by Leon Brittan in 1983, of requiring that those who are responsible for the worst categories of murder—killers of police or prison officers, sexual or sadistic murderers of children, terrorist murderers and those who kill in the course of robbery—should serve at least 20 years in prison.

Twenty years is, of course, the minimum. Many will —and do—serve longer. Some may never be released. However, I should be very surprised indeed to find a case where a battered wife spent such a long time in prison.

The flexibility of the present arrangements for the release of mandatory lifers must not be dismissed. These arrangements have allowed, in the past, a person to be released as early as six months after conviction. At the other end of the scale, they have in one instance ensured that a convicted murderer remains in prison 40 years after conviction; his release back into the community is as yet still considered undesirable.

I realise that many will ask: if the life sentence means different things in different circumstances, why then should such a sentence remain the mandatory penalty for murder? Why not make it the maximum penalty, as it is for other very serious crimes such as manslaughter, rape and indeed attempted murder?

Although, as drafted, the noble Lord's Bill does not explicitly state what would replace the mandatory life sentence if the Bill were to pass into law, I assume that the intention of the noble Lord, Lord Ashley, is to make life imprisonment the maximum penalty for murder. This would mean that courts would still be able to impose such a sentence if they thought it appropriate, while having the discretion to pass shorter determinate sentences for those murders which, if it is not a contradiction in terms, might best be described as "less serious".

While I concede that such arrangements might appear attractive on the surface, we have to consider what effects any change would have on public confidence in this area. I believe that the public would take the view which was expressed by my noble friend Lord Boyd-Carpenter when he addressed your Lordships during the debate on the Question of the noble Lord, Lord Ashley, in November. Many people would regard it as right that there should be a penalty which is unique to murder in order to reflect the particular abhorrence of society at that offence. We have to ask what sort of message we would be sending to the public if we had a situation where courts were imposing life sentences for certain murders but not for others.

The point about the mandatory life sentence has to be that it ensures that all those who deliberately take another person's life, whatever the circumstances, forfeit their right to complete liberty for the rest of their lives—irrespective of how long individual murderers actually spend in prison. This is the price which the majority of people expect murderers to pay for their crimes. A release from prison on licence for life enables a check to be kept on a convicted murderer in a way which a release on completion of a determinate sentence would never allow.

A life-sentence prisoner will never be entirely free again. He or she remains liable to recall to prison at any time if his or her conduct warrants it. This is the reassurance which, in the Government's view, the public expects in relation to all murderers, whether it applies to domestic homicide or to mass killers.

The mandatory nature of life imprisonment for murder arose from the abolition 30 years ago of the death penalty for murder. For some people at least, part of the argument against reintroducing the death penalty in subsequent years has rested on the acceptance of assurances from the Home Secretary that the worst murderers will spend a long time in custody. In giving that assurance, the Home Secretary is not, as the noble and learned Lord, Lord Ackner, suggested, clinging on to power, but is properly discharging his responsibility, for which he is accountable to Parliament, for public confidence in our justice system.

People have taken the view that, if the ultimate penalty—death—is not available, then at least the most appropriate alternative will be applied by the courts, imprisonment, with any subsequent release being subject to very stringent tests and to conditions which will restrict that murderer's liberty for the rest of his or her life. If life imprisonment were no longer to be the mandatory penalty, the Home Secretary would be unable to give such assurances and I am sure that the confidence of the public would be undermined as a result.

I have set out the reasons why the Government remain committed to the retention of the mandatory life sentence for murder and, therefore, why we would be unable to support the aims of this Bill. The Government are not persuaded that it would be right to make this move, not least because we recognise that the implications of so doing (for example, for public confidence in the sentencing of murderers, for sentencing more generally and for the release arrangements for life-sentence prisoners) could be far-reaching.

With the abolition of the death penalty, the public have the right to know that the next most serious penalty, life imprisonment, will apply. In the interests of public safety and public confidence, that is the Government's view.

The noble Earl, Lord Longford, as he said, asked me a question about life sentences and tariffs. He asked whether life sentence prisoners are told the period that the Home Secretary has initially determined to be the period appropriate for punishment. The answer is that no prisoner is formally notified of his tariff. Those with tariffs under 20 years can, however, work it out by adding three years to their review date. Where the tariff is more than 20 years, 17 years is considered the latest reasonable date to review the sentence.

The Earl of Longford

My Lords, if the noble Viscount means to leave it there, may I ask him whether he can justify not telling people who are serving long sentences beyond 20 years what their tariff is? But I have another question to put to him. I gave him notice of it this morning. How many people are there now in prison who have not been told their tariff? He had notice of that question.

Viscount Astor

My Lords, all mandatory life sentence prisoners have their tariff set by Ministers within the first year of sentence. A figure for the number of mandatory life sentence prisoners awaiting the setting of a tariff is not readily available. But, as I said, the tariff is set within the first year.

This is a Private Member's Bill—

Lord McIntosh of Haringey

My Lords, the noble Viscount must answer my noble friend. What he asked was not when the tariffs were set; he asked how many life prisoners are in prison now who do not know their tariffs. It was a simple question and he was given notice of it.

Viscount Astor

Yes, and I gave an answer. Perhaps the noble Lord, Lord McIntosh, misheard me. The figure for the number of mandatory lifers awaiting the sentence of a tariff is not available. But a tariff is set in that short period of time. All mandatory life sentence prisoners have their tariff set by Ministers within the first year of the sentence. I am sorry that the figures on that narrow period of time are not available.

Lord Archer of Sandwell

My Lords, if it is possible to set the tariff in the first year of sentence, why can it not be done by the judge at the trial?

Viscount Astor

That is a different argument. Under Section 34 of the Criminal Justice Act 1991, a discretionary life sentence prisoner will have the relevant part of the sentence—the period related to the seriousness of the offence, after which the prisoner will be eligible for the release procedure—set by the trial judge in open court. That is the difference.

Baroness Seear

My Lords, the question asked by the noble Earl, Lord Longford, is of interest not only to him but to many other people. Will the noble Viscount not say that he will find the information and let us have it?

Viscount Astor

The figure was not readily available today. I will certainly look to see whether it is possible to give that figure. I am not sure whether it is possible to give it, but I made inquiries today when I heard from the noble Earl, Lord Longford, to see if it was available.

As I said, this is a Private Member's Bill, and the Government would not seek to influence what your Lordships decide to do with the Bill. But it is only correct that I should tell your Lordships of the Government's opinion. I recognise the strength of feeling expressed here this evening by noble Lords. I am sure that, as always, my right honourable friend the Home Secretary will study very carefully what has been said.

Lord Ackner

My Lords, before the noble Viscount sits down, I wonder whether he can confirm that heard him correctly. He said that, among other things taken into account is the Home Secretary's view of the motive of the person convicted of murder. If that is so, it is a remarkable admission. It is the trial judge and the Chief Justice who are asked by the Home Secretary about the proper period to be served for retribution and deterrence—which is a rather pompous way of saying for punishment. Motive is obviously of prime consideration for punishment. If the Home Secretary, having not heard the trial, is taking his view into account as to the degree of motive, he is interfering with the imposition of punishment, which is not the function of the Executive.

Viscount Astor

My Lords, in response to the noble and learned Lord, I did say that the Home Secretary takes full account of all the circumstances of the case, including what is said by the trial judge and by the Lord Chief Justice. However, I said also that taking full account of every aspect includes the motive.

Lord Ackner

My Lords, does that mean the Home Secretary's own view of the motive? That is my question.

Viscount Astor

My Lords, it is for the Home Secretary to make up his mind from the information he receives from all those sources. Obviously it is a decision that the Home Secretary takes having taken full account of all aspects of the case.

8.20 p.m.

Lord Ashley of Stoke

My Lords, I want to do two things. First, I want to thank all those who have spoken in the debate, especially every Member, apart from the Minister, who has spoken in support of the Bill. We have heard some remarkable speeches and anyone who doubted the justice of the case must now be convinced.

Secondly, I want to point out that the Minister spoke as though he had never heard the speeches. However, I propose to avoid compounding his embarrassment. He has been compelled to read a feeble brief given to him by the Home Office and we understand his problems. We do not want to confuse the messenger with the message coming from the Home Office and therefore I do not propose to comment on his speech other than to say this.

It would be greatly appreciated if the noble Viscount would have a quiet word with the Home Secretary and tell him what an embarrassing evening he has had at the hands of my noble friends Lord Longford and Lord McIntosh and the noble and learned Lord, Lord Ackner, among others. I have never seen a Minister so humiliated on any issue—not personally, but on an issue. Clearly the Home Office has no case. That is why I do not propose to compound the embarrassment of the noble Viscount by saying anything further. I thank him for his reply and ask the House to approve this Second Reading. I commend the Bill to your Lordships' House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.