Detention of Juveniles (Hansard, 28 February 1996)

§ The Lord Advocate (Lord Mackay of Drumadoon)
My Lords, the Government are disappointed that the court has found against the current procedure for deciding on release for those detained during Her Majesty's pleasure. We are considering the 1455 implications of the judgment and will announce what changes will be made to take account of it as soon as possible.

§ The Earl of Longford
My Lords, am I to gather that in the absence of the noble Baroness, Lady Blatch, the Minister is saying that the Government do not accept the finding—which, as most of us are aware, they are bound to accept—but are still equivocating? Are the Government now prepared to bear in mind that there are some 100 young offenders whose tariff has expired and who have been told that they must be detained during Her Majesty's pleasure? Does the Minister agree that, under the court ruling, those 100 cases should therefore go to the Parole Board? Are those young people being allowed access to the Parole Board; and are the Government ready to accept the finding of the Parole Board, or are they still equivocating?

§ Lord Mackay of Drumadoon
My Lords, as I indicated, the position is quite clear. The Government will announce what changes will be made to take account of these judgments. The Government accept the judgments, which were pronounced on the 21st of this month. I venture to suggest that to have to come to any decision within the period of time from that day to today's date on precisely what the new procedures will be would have led to an accusation of rushing the matter and not thinking it through clearly. I have given an undertaking that, when the changes are decided upon, they will be announced to the House as soon as possible.
The noble Earl raises the question of how many people may be affected. My information is that in England and Wales some 235 cases are potentially affected by the judgment. While each and every one of those cases is being looked at urgently, it is likely that primary legislation will be required to set up the new procedure. In the interim, before primary legislation is passed, cases where the tariff has expired will be dealt with on an administrative basis.

§ Lord Boyd-Carpenter
My Lords, can my noble friend say whether, despite the fact that Parliament was not consulted about this matter, the Government regard the decision of this particular body as binding?

§ Lord Mackay of Drumadoon
My Lords, the Government regard the judgments in these two cases as ones that will require a change in the procedure. As I have indicated, that change will require to be done by way of primary legislation, which will be brought before Parliament as soon as practicable. It affects only those detained during Her Majesty's pleasure. As the House will know, those are people whose offences were committed while they were under the age of 18. It has no effect on people convicted of murder when they were 18 years or more on the day that they committed the offence.

§ Lord Renton
My Lords, during the hearing of this case, was the attention of the Court of Human Rights drawn to the law in this country and the sentencing 1456 practices that have arisen under it? And was the court told of the likely effect in this country of the decision that it reached?

§ Lord Mackay of Drumadoon
My Lords, my understanding is that the court was fully informed as to the law in this country and the procedure that has been followed in such cases for many years. I am sure that the noble Lord is aware that detention during Her Majesty's pleasure was introduced as long ago as 1908. The procedure followed since then has been to sentence young offenders to be detained without any limit being specified to the time of the detention. Subsequently, at an appropriate juncture, the issue of when they fall to be released is considered by the Parole Board.
The Government were represented before the court by David Pannick, QC. I have copies of both judgments before me this afternoon. Having read them, and from the advice I have received, I am quite satisfied that the court had placed before it not only the law but the implication that a change to the law would be required were the decision to go against the Government, as in each case it did.

§ Lord McIntosh of Haringey
My Lords, the Minister has given answers that are both factual and helpful, but has be not considered the possibility that the judgment may apply not only to those who are detained at Her Majesty's pleasure but also to those whose tariffs may be affected by the Home Secretary? In other words, the issue may be wider than previously supposed, and the involvement of the Home Secretary—a politician—in sentencing may not be at risk. Have the Government considered that possibility?

§ Lord Mackay of Drumadoon
My Lords, the Government have given consideration to that possibility. The advice that the Government have is that the decision does not affect the power of the Home Secretary to impose a tariff in cases of this nature in England and Wales.

§ Lord Harmar-Nicholls
My Lords, the Minister did not appear to answer the question put by my noble friend Lord Boyd-Carpenter. My noble friend asked whether we had to change the law to fit in with this ruling or could refuse to do it. Are we, under treaty, obligated to alter our law to fit in with the court, or can we leave it as it is if we wish?

§ Lord Mackay of Drumadoon
My Lords, I believe that the attitude of the Government to the decisions of the European Court of Human Rights is well known. On occasions its judgments are not welcomed or agreed with, but because the Government believe in the rule of law those judgments are respected. That is what is to happen in this case. The effect of the judgment will be respected, and as soon as practicable my right honourable friend the Home Secretary will bring forward proposals to amend the law in England and Wales.

§ Lord Callaghan of Cardiff
My Lords, is the Minister aware that to those of us who remember the hard work put in by the noble Viscount, Lord Eccles, 1457 and Sir David Maxwell Fyfe (as he then was) towards bringing in the Convention on Human Rights in Strasbourg and securing its adoption by other European countries, this decision sounds a very sensible one?

§ Lord Mackay of Drumadoon
My Lords, I am fully aware that the British Government and senior Government Ministers at that time did a great deal of work in setting up the convention. As is well known to noble Lords, the Government have no quarrel with the terms of the European convention itself.
The problems that have arisen over the years, and particular recent ones, have related to the decisions of the court. Because of that, my right honourable friend the Prime Minister announced in another place early in December that steps were being taken to discuss with members of the Council of Europe, and members and officials of the court, whether or not anything could be done to improve the court's procedures so that its decisions commanded greater and wider public respect than unfortunately has been the case in recent months. While the convention is clearly important and falls to he respected, and some noble Lords may welcome the decisions in these two cases, the issue whether or not the Government welcome it is neither here nor there. The Government respect the judgments and will act accordingly.

§ Lord Mackie of Benshie
My Lords, is the Minister able to tell us what the position is in Scotland?

§ Lord Mackay of Drumadoon
My Lords, not surprisingly the position in Scotland has been considered by the Lord Advocate since it was suggested that he might answer this Question! Having given the matter the briefest of consideration, although not having had the opportunity to discuss it with my right honourable friend the Secretary of State for Scotland, I have little doubt that consideration will have to be given to amending the law of Scotland as well. In Scotland, no tariffs are set for young people who are detained at Her Majesty's pleasure. Therefore, two issues will have to be looked at in Scotland: the setting of a tariff and a procedure to deal with the release of such prisoners once the tariff has expired.

§ Lord Stoddart of Swindon
My Lords, is one to understand from the answers given by the noble Lord this afternoon that the Government now believe that the public interest is best decided by the European Court of Human Rights rather than by the elected government of this country?

§ Lord Mackay of Drumadoon
My Lords, the noble Lord is wrong to jump to that conclusion, as I suspect many Members of the House will readily appreciate. The issue comes down to the basic question of whether or not we respect the judgments of the court and act in accordance with them. Those who are bound by the rule of law occasionally have to follow decisions of courts with which they do not agree. That is what the rule of law is all about. Procedures are set up to adjudicate on cases. When the court rules accordingly, those bound by the decision have to take it into account. That applies 1458 to individual members of society as well as to this Government, of which I am a Member. The Government do not suggest for one moment that the European Court is the place to decide these issues in preference to Parliament, but when an issue arises they have to consider it. It is then for Parliament to decide what new procedures are put in place.

§ Lord Brabazon of Tara
My Lords, my noble and learned friend said that legislation would have to be introduced to change the law of this country to bring the judgment into effect. What happens if both Houses of Parliament unceremoniously throw out such legislation?

§ Lord Mackay of Drumadoon
My Lords, as a new Member of your Lordships' House I find it difficult to answer any question. I find it impossible to answer hypothetical questions, and I decline to do so.